The court affirmed that victims of sexual assault should not undergo repeated cross-examination, emphasizing the need for fair trial rights while protecting vulnerable witnesses.

JUDGMENT

Mrs. Manisha Batra, J. (Oral)

The petitioner is challenging the order dated 04.09.2023 passed by learned Additional Sessions Judge, Tarn Taran in SC No.393 of 2021 titled as State v. Kulwinder Singh arising out of FIR No.108 dated 14.10.2021 registered under Section 376 of IPC and Section 4 of Protection of Children from Sexual Offences Act, 2012 (For short "POCSO Act") at Police Station Verowal, District Tarn Taran, whereby an application as filed by him under Section 311 of Cr.P.C. for recalling the prosecutrix who was examined as PW-1 and her grandmother examined as PW-2, had been dismissed.

2. Shorn of unnecessary details, the facts of the case are that the present petitioner is facing trial for commission of offences punishable under Section 376 of IPC and Section 4 of POCSO Act before the learned trial Court. FIR of this case had been registered on the basis of statement recorded by the grandmother of the prosecutrix alleging therein that on 09.10.2021 at about 12 PM, the petitioner had ravished her six years old granddaughter by taking her in an old room of his house, when she had gone to play with the children of the neighbourhood. The prosecutrix as well as the complainant have since been examined as PW-1 and PW-2 respectively. The petitioner had filed an application under Section 311 of Cr.P.C. making prayer for recalling the prosecutrix and her grandmother for their further cross-examination by submitting that the previous counsel engaged by him had not conducted their proper cross-examination and many questions which were important had been left to be asked from these witnesses. The learned trial Court, however, by passing the impugned order has declined the prayer so made and feeling aggrieved, the present revision petition has been filed.

3. It is submitted in the petition and learned counsel for the petitioner has argued that the impugned order is liable to be set aside as while passing the same, the learned trial Court ignored the fact that the cross-examination of the prosecutrix as well as the complainant had not been conducted on all the material aspects. It also ignored that the previous counsel of the petitioner had not confronted the PW-1 and PW-2 with several contradictions which were found in the statement as recorded by the prosecutrix under Section 164 of Cr.P.C. and the statement as recorded before the Court. It is submitted by learned counsel for the petitioner that he is facing a serious charge under Section 376 of IPC and Section 4 of POCSO Act and must be given fair opportunity to defend himself. The previous advocate representing him had not conducted cross-examination of the witnesses and it is only on engaging a new counsel that he has come to know that neither his defence has been properly placed on record nor contradictions have been confronted with the witnesses. He has argued that material improvements on some points had been made by the prosecutrix while recording her sworn deposition in the Court, as it was for the first time that she had deposed that the petitioner had struck a danda on her private parts whereas in her statement recorded under Section 164 of Cr.P.C., it was stated by her that the petitioner after removing her pajama had touched her private parts with something due to which she had pain. It is further submitted by learned counsel for the petitioner that since no effective cross-examination of PW-1 ad PW-2 was conducted by the previous counsel engaged by him, therefore, a great prejudice was going to be caused to the petitioner as he was deprived of the opportunity to confront the witnesses with the contradictions having crept in their respective statements.

4. It has been further argued by learned counsel for the petitioner that he deserved a fair opportunity to defend his case as well as for the just decision thereof. With these broad submissions, it is urged that the petition deserves to be allowed, the impugned order is liable to be set aside and the petitioner