[S. 33(5) POCSO Act] Child Witness Cannot Be Recalled To Fill Up Lacuna And Omission In Evidence Of Accused: Kerala High Court

It is to be noted that Section 33 (5) of the POCSO Act states that a child is not called repeatedly to testify in the Court.

Justice A. Badharudeen reiterated that the bar under Section 33(5) is not absolute, but it stated that a child witness can be recalled only when it is absolutely necessary to make a just decision on the case.

“This provision to be read and understood to hold that repeated examination of the child shall be avoided and this provision shall not be interpreted to hold that recalling of the child witness is prohibited in toto. Therefore, bar under Section 33(5) of the POCSO Act is not absolute and in an appropriate case, in order to meet the ends of justice, relaxation of the mandate under Section 33(5) of the POCSO Act is legally permissible. However, in such cases, it should be established that such recalling is absolutely necessary for the just decision of the case and the same shall not be for the purpose of filling up the lacuna in evidence or to fill up the omission at the instance of the counsel for the accused vis-a-vis the public prosecutor.”

The Fast Track Special Court for Protection of Children from Sexual Offences Act dismissed an application to recall a child witness to ask certain material questions during the trial. Aggrieved by the dismissal, the accused has approached the High Court.

The Counsel for the accused submitted that several material questions were omitted in the cross-examination, necessitating the recalling of the child witness. Relying upon Vineeth v. State of Kerala (2022), it was argued that the bar under Section 33 (5) was not absolute and that child witnesses could be recalled in appropriate cases.

The Public Prosecutor stated that the child witness should not be recalled since the accused was trying to fill the lacuna in evidence after the competition of the trial.

The Court found that it was legally unsustainable to recall the child witness since the accused was trying to fill up the lacuna and omissions in their evidence.

The Court stated that the order of the Special Court dismissing the application to recall the child witness was fully justified. As such, the Court dismissed the petition.

Counsel for Petitioner: Advocates Roshen D Alexander, Tina Alex Thomas, Harimohan, Kamal Roy M

Counsel for Respondents: Senior Public Prosecutor Renjith George

Citation: 2024 LiveLaw Ker 301

Case Title: Jerin Joy v State of Kerala

Case Number: CRL.MC NO. 3840 OF 2024

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