O R D E R:

This Criminal Revision Case is filed by the petitioner/accused No.2 seeking to set aside the order dated 01.03.2024 passed after chief examination of PW6/LW6 and closing of the cross-examination of the victim PW6 in Spl.S.C.No.972 of 2019 and treating it as nil pending before the learned Special Judge for trial and disposal of Rape and POCSO Act Cases (FTC), Ranga Reddy District, at Rajendranagar (for short, “the trial Court”).

2. Heard M/s.Vankina Allu and Partners, appearing for the petitioner and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.1-State.

3. The brief facts of the case are that the petitioner herein is arrayed as accused No.2 in Spl.S.C.NO.972 of 2019 on the file of the trial Court. It is stated that on 01.03.2024 all the witness i.e., PWs.1 to 6 had given their chief examination before the trial Court and PWs.1 to 5 were cross-examined by learned counsel for accused No.2. PW6/victim was also cross-examined as it was posted conditionally. It is further submitted that PW6, in her chief examination, deposed substantially new facts which were not there in her statement before the Police i.e., either in Section 161 Cr.P.C. statement dated 28.04.2019 or in her Section 164 Cr.P.C. statement recorded before the learned Magistrate dated 01.05.2019. It is also contended that PW6 made serious allegations against the petitioner herein for the first time before the learned Magistrate and the learned counsel for the petitioner sought to defer the cross-examination of PW6. The learned Judge, rejected the deferment of cross-examination of PW6 for the reason “PW6 is victim witness, as per the mandate under Section 33(5) of the POCSO Act, a child witness shall not be called repeatedly to testify in the Court so, the cross-examination of PW6 is treated as nil and closed”. Therefore, the petitioner herein filed the present Revision seeking to set aside the impugned order.

4. Learned counsel for the petitioner submitted that PW6/victim is now aged about 18 years and 7 months and she would not fall within the definition of “child” as mentioned in Section 33(5) of the POCSO Act. He would further state that bar under Section 33(5) of the POCSO Act is not absolute and the victim can be recalled for cross-examination, for appropriate adjudication of the matter. Therefore, relying upon the decisions passed by the High Court of Orissa in Pidika Sambaru Vs. State of Odisha and another¹ and the High Court of Madras in S.Ganeshan Vs. State², learned counsel seeks to allow this Revision.

5. Learned Assistant Public Prosecutor contended that the trial Court upon careful scrutiny of the material available on record rightly passed the impugned order and interference of this Court, at this stage, is not warranted. Therefore, he seeks to dismiss the Revision.

6. Having regard to the submissions of both the learned counsel and relying on the decision passed by High Court of Kerala, at Ernakulam in Vineeth Vs. State of Kerala³ and the decisions cited (supra 1 and 2), this Court is of the opinion that the bar under Section 33(5) of the POCSO Act is not absolute; for the just decision of the case, the child witness can be recalled and the petitioner has every right to contradict the witness with Section 164 Cr.P.C. statements. In the present case on hand, it can be seen that no opportunity was afforded to the petitioner, to cross-examine the victim, to prove his case on the new facts

1 Crl.Rev.No.490 of 2021 from the order dated 01.11.2011 passed by the learned Ad hoc Additional District and Sessions Judge (FTSC), Jeypore in T.R.Case.No.80 of 2018

2 Crl.O.P.No.4131 of 2022 and Crl.M.P.No.2060 of 2022 dated 07.03.2022

3 Crl.M.C.No.9045 of 2022 dated 12th Day of December, 2022/21st Agrahayana, 1944 elicited in Section 164 Cr.P.C. statements of the victim. Therefore, this Court is of the view that no prejudice would be caused to PW6/victim, if she is subjected to cross-examination once, by fixing a day. It is made clear