Recalling child witnesses under POCSO Act is permissible only when necessary for justice, not to alter previous testimony.

C O M M O N O R D E R

Criminal Miscellaneous Case No.9471 of 2024 has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (` BNSS ’ for short), challenging order in Crl.M.P.Nos.274/2024 and 275/2024 in S.C.No.47/2024 on the files of the Special Court under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short)

Cases, Adoor.

2. Criminal Miscellaneous Case No.9473 of 2024 has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (` BNSS ’ for short), challenging order in Crl.M.P.Nos.269/2024 and 270/2024 in S.C.No.811/2023 on the files of the Special Court under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short)

Cases, Adoor.

3. Criminal Miscellaneous Case No.9474 of 2024 has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (` BNSS ’ for short), challenging order in Crl.M.P.Nos.267/2024 and 268/2024 in S.C.No.829/2023 on the files of the Special Court under the Protection of Children from Sexual Offences Act (`POCSO Act’ for short)

Cases, Adoor.

4. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. In all these cases the defacto complainant and the 3rd respondent is one and the same. Perused the relevant documents.

5. In Crl.M.C.No.9471/2024 the accused alleged to have committed offences punishable under Sections 363 , 354D and 376 of the Indian Penal Code (` IPC ’ for short) as well as Sections 4(1) r/w 3(a) and (b), 12 r/w 11 and 17 r/w 16 of the POCSO Act, Section 84 of the Juvenile Justice (Care and Protection) Act (`JJ Act’ for short) and Sections 3(1)(w) (i) and 3(2)(v)(va) of Scheduled Cast Schedule Tribe (Prevention of Atrocities) Act (`SC/ST (POA) Act’ for short).

6. In Crl.M.C.No.9473/2024 the accused alleged to have committed offences punishable under Section 363 , 366A and 376 of the Indian Penal Code (` IPC ’ for short) as well as Sections 4(1) r/w 3(a), 6 r/w 5(g), 8 r/w 7 and 17 r/w 16 of the POCSO Act, Section 84 of the Juvenile Justice (Care and Protection) Act (`JJ Act’ for short).

7. In Crl.M.C.No.9474/2024 the accused alleged to have committed offences punishable under Section 363 , 354D and 376(2) of the Indian Penal Code (` IPC ’ for short) as well as Sections 4(1) r/w 3(a) and (b), 6 r/w 5(1) and 12 r/w 11(iv) of the POCSO Act, Sections 77 and 84 of the Juvenile Justice (Care and Protection) Act (`JJ Act’ for short) and Sections 3(1)(w)(i) and 3(2)(v)(va) of Scheduled Cast Schedule Tribe (Prevention of Atrocities) Act (`SC/ST (POA) Act’ for short).

8. These cases were tried separately. The common survivor got examined separately and cross examined at length. Thereafter, at the fag end of the trial, separate petitions were filed to recall and re-examine PW1 and the one and only reason stated to recall PW1, the survivor, is that at the time of giving evidence, PW1 was at ACH, Kollam, and she gave evidence in the court due to the threat and inducement due to the authorities at ACH, Kollam and police officials. Therefore, she wanted to recall herself. The accused also filed petition to recall PW1, on the assertion that he obtained copy of the affidavit accompanying the petition filed by the survivor. Therefore recalling is necessary.

9. Prosecution side zealously opposed recalling PW1 and the learned Special Judge considered the objection in the light of the decisions reported in [2005) 10 SCC 701] ,Mishralal & Ors. v. State of M.P & Ors’s case and [AIR 2009 SC 69] , Hanuman Ram v. State of Rajasthan & Ors. and dismissed the applications filed for recalling PW1 holding the view that once the witness was cross examined fully, such witness should not be recalled and re-examined to deny the evidence she had already given before the court.

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10. The learned counsel for the petitioner pre ed for recall of PW1, which was denied in all these petitions.

11. Law regarding recalling of child witness is well settled.

Law regarding recalling of child witness is subj