In the trial, recording of evidence of prosecution witnesses commenced on 16-09-2019 on which day the victim turns hostile. On her turning hostile, the State seeks permission of the learned
Sessions Judge to cross-examine the witness. The learned
Sessions Judge having declined such cross-examination drives
the State to this Court in the subject petition.
Therefore, the State is to be permitted to cross-examine the victim. But, such cross-examination can be only in terms of Section 33 of the POSCO Act which mandates that while cross-examination questions shall be put to the Court and the Court in turn to put the same questions to the victim. The learned Sessions Judge shall take such care and caution in transmitting the questions to the victim to be in strict consonance with the provisions of the POSCO Act.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
CRIMINAL PETITION No.8167/2020
STATE OF KARNATAKA, Vs SOMANNA, S/O DODDA SHETTY,
BEFORE
MR. JUSTICE M. NAGAPRASANNA
DATED THIS THE 3RD DAY OF MARCH, 2022
The State is before this Court in the subject petition calling
in question order dated 16-09-2019 passed by the Principal
District and Sessions Judge, Chamarajnagar in Special Case
No.184 of 2019, whereby the learned Sessions Judge declined to
permit the State to cross-examine the victim on her turning
hostile in a case arising out of the provisions of the Protection of
Children from Sexual Offences Act, 2012 (‘POSCO Act’ for short)
and Sections 9, 10 and 11 of the Prohibition of Child Marriage
Act, 2006.
2. Sans details, facts in brief, are as follows:-
A complaint is registered 29-04-2019 in Crime No.115 of
2019 for offences punishable under Section 376(n) read with
Section 34 of the IPC, Sections 4, 6, 8, 12 and 17 of the POSCO
Act and Sections 9, 10 and 11 of the Prohibition of Child
Marriage Act. The complaint was registered for an offence that
was committed on 02-12-2018. The allegation was that accused
Nos.2 to 10 having knowledge that the victim girl was minor got
her marriage with accused No.1 on 02-12-2018 and accused
No.1 knowing full well that the victim was a minor girl had
committed sexual assault on her many a times. In the trial,
recording of evidence of prosecution witnesses commenced on
16-09-2019 on which day the victim turns hostile. On her
turning hostile, the State seeks permission of the learned
Sessions Judge to cross-examine the witness. The learned
Sessions Judge having declined such cross-examination drives
the State to this Court in the subject petition.
3. Sri. Shankar H.S., learned High Court Government
Pleader representing the State would vehemently submit that
the order passed on 16-09-2019 runs counter to law as once the
witness turns hostile cross-examination is a right. Merely
because the proceedings are under the POSCO Act, the right of
cross-examination cannot be taken away as the very Act itself
permits such cross-examination and submits that the same be
allowed and the State be permitted to cross-examine the victim.
4. The only issue that falls for my consideration is
whether the victim under the POSCO Act can be permitted to be
cross-examined once she turns hostile. Before considering the
issue, I deem it appropriate to notice the provisions of the
POSCO Act which deals with the procedure and powers of the
Special Court. Section 33 of the POSCO Act reads as follows:
“33. Procedure and powers of Special
Court.- (1) A Special Court may take cognizance of
any offence, without the accused being committed to it
for trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of such
facts.
(2) The Special Public Prosecutor, or as the
case may be, the counsel appearing for the accused
shall, while recording the examination-in-chief, crossexamination
or re-examination of the child,
communicate the questions to be put to the child to the
Special Court which shall in turn put those questions to
the child.
(3) The Special Court may, if it considers
necessary, permit frequent breaks for the child during
the trial.
(4) The Special Court shall create a childfriendly
atmosphere by allowing a family member, a
guardian, a friend or relative, in whom the child has
trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the
child is not called repeatedly to testify in the court.
(6) The Special Court shall not permit
aggressive questioning or character assassination of the
child and ensure that dignity of the child is maintained
at all times during the trial.
(7) The Special Court shall ensure that the
identity of the child is not disclosed at any time during
the course of investigation or trial:
PROVIDED that for reasons to be recorded in
writing, the Special Court may permit such disclosure, if
in its opinion such disclosure is in the interest of the
child.
Explanation: For the purposes of this sub-section,
the identity of the child shall include the identity of the
child’s family, school, relatives, neighbourhood or any
other information by which the identity of the child may
be revealed.
(8) In appropriate cases, the Special Court
may, in addition to the punishment, direct payment of
such compensation as may be prescribed to the child for
any physical or mental trauma caused to him or for
immediate rehabilitation of such child.
(9) Subject to the provisions of the Act, a
Special Court shall, for the purpose of the trial of any
offence under this Act, have all the powers of a Court of
Session and shall try such offence as if it were a Court
of Session and as far as may be, in accordance with the
procedure specified in the Code of Criminal Procedure,
1973 (2 of 1974) for trial before a Court of Session.”
In terms of sub-section (2) of Section 33 of the POCSO Act,
the Special Public Prosecutor or as the case would be, the
counsel appearing for the accused shall, while recording
examination-in-chief, cross-examination or re-examination of
the child communicates the questions to be put to the child to
the Special Court which shall in turn put those questions to the
child. Therefore, the victim is permitted to be cross-examined
under the POSCO Act itself on her turning hostile which would
also cover the situation under sub-section (2) of Section 33 of
the POCSO Act. The Apex Court in the case of NIPUN SAXENA
v. UNION OF INDIA1 while interpreting Section 33 of the POSCO
Act has held as follows:
“47. Any litigant who enters the court feels
intimidated by the atmosphere of the court. Children
and women, especially those who have been subjected
to sexual assault are virtually overwhelmed by the
atmosphere in the courts. They are scared. They are so
nervous that they, sometimes, are not even able to
describe the nature of the crime accurately. When they
are cross-examined in a hostile and intimidatory
manner then the nervousness increases and the truth
does not come out.
48. It is, therefore, imperative that we should
have courts which are child-friendly. Section 33(4)
POCSO enjoins on the Special Court to ensure that there
is child-friendly atmosphere in court. Section 36 lays
down that the child should see the accused at the time
of testifying. This is to ensure that the child does not get
scared on seeing the alleged perpetrator of the crime. As
noted above, trials are to be conducted in camera.
Therefore, there is a need to have courts which are
specially designed to be child-friendly and meet the
needs of child victims and the law.”
1 (2019) 2 SCC 703
The Apex Court delineates importance of having a court
room and the atmosphere in such court room to be child
friendly. A Division Bench of this Court following the said
judgment of the Apex Court in DOULA v. THE STATECriminal Appeal No.100260/2016 decided on 22-07-2020 has held as follows:
“45. To constitute the offence of either rape
under Section 375 of IPC or penetrative sexual assault
as defined under Section 5 of the POCSO Act, the victim
is not required to explain in detail before the court, the
horrifying act. Sexual violence is not only a
dehumanising act but also intrudes into the victim’s
right of privacy and sanctity. Expecting the victim to
explain step by step as to how the accused violated her,
degrades and humiliates her. Where the victim is a
helpless child or a minor, it leaves behind a traumatic
experience. The courts must be sensitive towards the
plight of the victim of such offence. Under the guise of
eliciting evidence, she cannot be compelled to reproduce
minute details of the horrendous act.
46. Probably keeping in mind the tendency of
posing all kinds of questions to humiliate the victim in a
bid to deal a blow to her honour and to make her relive
the horror while in the witness box, Section 33 (2) of the
POCSO Act is enacted to safeguard and insulate the
minor victim from the same. It mandates that while
recording the evidence of the child, the Special P.P or as
the case may be the counsel for the accuse to
communicate to the special court, the question to be put
to the victim and the court shall in turn put it to the
victim. Further, Section 33(6) of the POCSO Act
mandates the Court not to permit aggressive
questioning or character assassination of the child and
to ensure maintaining the dignity of the child at all
times during the trial.
47. Position of law regarding appreciation of
the evidence of the child witness is well settled. A child
witness, if found competent to depose to the facts and if
her version is reliable, such evidence could be the basis
of conviction. The only precaution which is to be taken
by the court while appreciating such evidence is to rule
out any possibility of tutoring. If the Court is satisfied
that the evidence of the child is not the tutored version
and if it is found reliable, the same can be the sole
basis for conviction.”
Later this Court in the case of GOUTAM AND OTHERS v.
THE STATE OF KARNATAKACriminal Petition No.200908of 2019 decided on 04-09-2019 has held as follows:
“6. The Protection of Children from Sexual
Offences Act, 2012 is a special enactment. Section 31 of
the POCSO Act states that the provisions of the Code of
Criminal Procedure applies to the proceedings before the
Special Court except as otherwise provided in the said
Act. Section 33 of the POCSO Act provides for procedure
and powers of the special court in conducting trial.
7. Section 33(2) of the POCSO Act states that
the Special Public Prosecutor or the defence counsel
while recording the evidence to the child witness shall
communicate the questions to be put to the child to the
Special Court and in turn, the Special Court shall put
such questions to the child. That means the defence or
the prosecution has no right of direct examination or
cross-examination of the victim child.
8. Section 33(5) of the POCSO Act, states that
the Special Court shall ensure that the child is not
called repeatedly to testify in the Court. Even to recall
the child witness or any other witness in a trial, the
accused has to explain his lapses and touching which
matter he wants to further cross-examine or examine
the witnesses. In the case on hand, the application is as
bald as possible.”
On the touchstone of the judgments rendered by the Apex
Court, Division Bench and coordinate Bench of this Court, the
order impugned will have to be considered. The order dated
16.09.2019 which declines cross-examination of the victim by
the State on her turning hostile reads as follows:
{Vernaculars omitted}
What would unmistakably emerge from a perusal of the
impugned order is that it runs counter to Section 33 of the
POSCO Act, judgments rendered by the Apex Court and that of
this Court and resultantly becomes unsustainable. Therefore,
the State is to be permitted to cross-examine the victim. But,
such cross-examination can be only in terms of Section 33 of the
POSCO Act which mandates that while cross-examination
questions shall be put to the Court and the Court in turn to put
the same questions to the victim. The learned Sessions Judge
shall take such care and caution in transmitting the questions
to the victim to be in strict consonance with the provisions of the
POSCO Act.
5. For the aforesaid reasons, I pass the following:
O R D E R
(i) Criminal Petition is allowed and the order dated
16.09.2019 passed by the Principal District and
Sessions Judge, Chamarajnagar in Special Case
No.184 of 2019, stands quashed.
(ii) The matter is remitted back to the hands of the
learned Sessions Judge dealing with the matter to
13
permit cross-examination of the victim strictly in
accordance with Section 33 of the POSCO Act.
Sd/-
JUDGE
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