ORAL ORDER

1. By way of the present application filed under Section 397 and 401 of the Code of Criminal Procedure, 1973 (for short “ the Cr.P.C), the applicant-original accused challenged the impugned order passed by the learned Special Judge, (POCSO)

Gandhinagar, in Special Case (POCSO) No. 71 of 2022

2. The brief facts giving rise to the present application are, as under:

2.1 That the applicants are the original accused of FIR No.11191008220699 of 2022 for the offences punishable under Section 363, 366, 376, 372 (2)(n), 376 (D), 506(1) and 114 of the Indian Penal Code an under Sections 4, 5(L), 6, 11(6), 12, 16 and 17 of the Protection of Children from Sexual Offecnes Act, 2012 (for short “ the POCSO), which was registered on 07.10.2022 and after due investigation, a charge sheet came to be filed before the learned Special Judge, (POCSO), Gandhinagar which is registered as Special Case (POCSO) No.71 of 2022.

2.2. That the learned Trial Court has after following the due procedure recorded the evidence of the prosecution and the victim was examined at Exh.66 as prosecution witness No.4 on 07.08.2023. That after the evidence of the victim was recorded, the evidence of the mother of the victim was recorded as prosecution witness No.6 at Exh.89 on 05.10.2023 and the mother of the victim did not support the case of the prosecution and turned hostile. Hence, the applicants filed the application at Exh.89 under Section 311 of the Code of Criminal Procedure, 1973 for recalling the victim for further cross-examination.

2.3. That the learned Special Judge(POSCO), Gandhinagar heard the parties and by an order dated 19.10.2023, rejected the application of the applicants.

3. Being aggrieved and dissatisfied with the order dated 19.10.2023 passed that learned Special Judge(POSCO), Gandhinagar, the applicants have filed the present application mainly stating that the learned Trial Court has erred in facts and law in rejecting the application and as the complainant has turned hostile, the victim needs to be further cross-examined, which is not considered by the learned Trial Court and hence, the application be allowed and the learned Trial Court be directed to allow the applicants for further cross-examination of the victim.

4. Heard learned advocate Mr. Nisarg Shah for the applicants and learned APP Ms. Jirga Jhaveri for the respondent –

State.

4.1. Learned advocate Mr. Nisarg Shah for the applicants submits that the applicants have a good case on merits and in fact, a compromise has been arrived at between the parties and the victim needs to be further cross-examined. That the mother of the victim has turned hostile and in that situation, the victim needs to be further cross-examined. That the learned trial Court has illegally rejected the application and hence, the present revision application may be allowed and the applicants may be allowed to cross-

examine the victim.

4.2. Learned advocate for the applicants, in support of his case, has relied upon decision of this Court in the case of Kiran Kantilal Raval Vs. State of Gujarat reported in 2012(0) AIJEL-

HC 228905, wherein, this Court has observed as under: 6. In the present case, the accused has come up with a plea that while taking cross- examination of the complainant- victim, wrong questions were put by mistake and what is recorded thereupon was not correct as the different person was named in the questions put to the victim. Therefore, if recalling of complainant/victim as witness is not permitted, the alleged mistake may attain a finality on record. Even if it was a mistake as per the version of accused only, and fe wanted to correct the same by seeking recall of the witness concerned, such opportunity should be given to him. In a criminal trial, accused should be given full opportunity to raise his defence to his satisfaction. It is not shown that by recalling the victim-witness, any prejudice would be caused to the complainant in the facts of the case.

5. Learned APP Ms. Jirga Jhaveri for th