The court held that the accused has a right to cross-examine the victim, but restrictions apply to protect minors, emphasizing the need for relevance and care in questioning under the provisions of Section 311 Cr.P.C. and Section 33(5) of the POCSO Act.

JUDGMENT

Savitri Ratho, J.

This application under section 482 of the Code of Criminal Procedure has been filed by the petitioner, challenging the order dated 24.03.2023 passed by the learned ADJ -cum- Special Judge under POCSO Act, Nayagarh in T.R. Case No. 170 of 2022 arising out of Chandapur P.S. Case No. 111 of 2021 rejecting the application of the petitioner under Section 311 Cr.P.C. to recall the P.W.1 the victim- informant (herein after referred to as “the victim” ) for cross examination.

BACKGROUND FACTS

2. The petitioner is facing trial for commission of offences punishable under Sections 363 /366/376 of IPC read with Section 3(1)(w)(i)/3(2)(va) of the SC & ST (POA) Act and Sections 4 and 8 of the POCSO Act.

3. Chandpur P.S. Case No. 111 of 2021 was registered on.07.08.2021 on the basis of the detailed written report of the victim. Copy of the FIR has been annexed as Annexure 1 to the petition.

4. The victim had been examined as P.W.1 in the trial on 17.01.2023 and was cross examined the same day. In her examination in chief, she has interalia stated that the accused had said that he would marry her on 05.08.2021 in the temple at Village – Giridharipur and to come to Ranpur on 05.08.2021. She was a minor then and being influenced by the accused, she went to Ranpur on 05.08.2021 with a pair of dress and her mobile phone without informing her parents. There the accused had sexual intercourse with her against her will after tying her hands and gagging her. When he removed the gag, she shouted and a cowherd came to the spot but the accused drove him away. The accused hit her when she asked about marriage and gave a cigarette burn on her right hand and threatened that if she told anybody about the incident, she would be thrown out from the house after being beaten. The accused told her that they would go to Visakhapatnam for their marriage after a few days and till then she should stay in her parents’s house. She was taken to the house of her grandfather in village Godikala by one Chittaranjan Routray, friend of the accused. Her grandfather did not accept her so she went to village Boulabandha to her other grandfather’s house from where she was rescued by her brother and brother in law. After she told them about the incident, a meeting was called in village Dakhina Parikheta. There the family members of the accused offered them cash to compromise the case. But when they refused, they were abused saying she could not be their daughter in law because of her low caste – dhoba. She lodged FIR on 7.08.2021 and was medically examined and her statement was recorded under Section – 164 Cr.P.C.

5. During cross examination, the victim has stated that she has studied upto +2 Arts and completed her study in December 2022 and got married on 20.11.2022 when she was eighteen years old . She had fifteen days relationship with the accused when the incident happened. She had been to the village of her sister on 20.06.2021 to attend a marriage scheduled for 21^st and 22^nd June 2021. She had love with the accused for one month and fifteen days. Copy of the deposition of the victim P.W.1 is annexed as Annexure 2 to the petition.

6. On 24.03.2023, while the trial was continuing, an application under Section – 311 Cr.P.C. was filed on behalf of the petitioner for recalling the victim for further cross examination indicating fourteen questions and suggestions to be put to her and contending interalia that her further cross examination was necessary as even a suggestion that she was giving false evidence could not be put to her. Copy of the petition dated 24.03.2023 has been annexed as Annexure 3 to the petitio