The denial of an accused's right to cross-examine the victim in a POCSO case undermines the fairness of the trial, warranting remand for further examination.

JUDGMENT :

M. NIRMAL KUMAR, J.

The petitioner/accused in Spl.S.C.No.254 of 2023 [Old Spl.S.C.No.21 of 2023 on the file of Fast Track Mahila Court at Dharmapuri] was convicted by the learned Sessions Judge, Special Court to deal with cases related to POCSO Act, Dharmapuri, by judgment dated 05.03.2024 and sentenced to undergo 20 years Rigorous Imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo one year Simple Imprisonment, for the offence under Sections 5 (m), 5(n) r/w. 6(1) of Protection of Children from Sexual Offices Act [POCSO Act]. Against which, the present appeal.

2. Mr.S.Shanmugavelayutham, the learned senior counsel appearing for the Appellant submitted that the victim was examined as P.W.2 in this case, Ex.P3/statement given to the Police and Ex.P4/164 statement marked through her. These two documents along with her evidence before the Court would not go together, but this has to be brought on record by way of cross examination. In this case, P.W.2 and some more witnesses not cross examined. Therefore, the petitioner filed a petition under Section 311 Cr.P.C. in Crl.M.P.No.1179 of 2023 to recall P.W.1 to P.W.4 and the Trial Court, by order dated 18.08.2023, permitted to recall P.W.1, P.W.3 and P.W.4, but disallowed as regards P.W.2/victim. Thereafter, the petitioner filed Crl.M.P.No.263 of 2023 to recall P.W.12/Dr.Kanimozhi and the same was allowed by order dated 04.12.2023. Again, the petitioner filed a petition in Crl.M.P.No.357 of 2023 to recall P.W.20/Dr.Prabha, which was also allowed by the Trial Court by order dated 06.01.2024. He would submit that restriction under Section 33 (5) of POCSO Act is that it has to be ensured that the child is not called repeatedly to testify in the Court. Repeatedly means again and again or frequently and testifying is by way of solemn declaration of oath to give evidence as witness. Hence, without recalling and subject to cross examination, the evidence cannot be testified in view of gross variance in the evidence of P.W.2 to her earlier statements. In support of his contention, the learned senior counsel relied upon the decision of this Court in the case of M. Kannan Vs. State reported in 2018 Crl.L.J. 116, wherein in an identical situation, this Court set aside the conviction and remanded back the case to trial to the limited extent of denial of cross examination.

3. The learned Senior Counsel further submitted that the trial Court convicted the petitioner in Spl.S.C.No.254 of 2023, on 05.03.2024. During the trial P.W.1 to P.W.20 examined. Ex.P1 to P22 marked. The trial Court in its Judgment recorded that the occurrence taken place on 04.12.2022 and on that day, the Victim / P.W.2 is aged below 18 years. Admittedly, in this case, the victim girl / P.W.2 was not cross-examined. Some more witnesses also not cross-examined. The trial Court permitted to recall and cross- examination of other witnesses, except P.W.2, who is the victim, citing Section 33 (5) of the POCSO Act that the child/victim not to be called repeatedly to testify in the Court. The petitioner not cross-examined P.W.1 to P.W.4. Hence, the appellant herein filed a Petition under Section 311 Cr.P.C., in Crl.M.P.No.1179/2023 to recall P.W.1 to P.W.4. The trial Court, by order dated 18.08.2023, permitted the petitioner to recall P.W.1, P.W.3 and P.W.4 but disallowed as regards P.W.2/victim citing (5) of the POCSO Act. He further submitted that in the entire Judgment, the evidence of P.W.1/Mother of the Victim is being discussed in detail. The trial Court failed to see that the evidence of P.W.2 / Victim is contrary to her 164(5) Statement / (Ex.P4) and her state