POCSO Act Doesn't Bar Cross-Examination Of Child Witness But Must Be Protected From Aggressive Questioning: Delhi High Court
The Delhi High Court has held that the POCSO Act does not bar the defence to cross examine a child witness but the statute protects the minor against aggressive questioning or character assassination. “...the POCSO Act has clearly provided for provisions to protect the child from aggressive questioning or character assassination and to see that the dignity of the child is maintained at...
The Delhi High Court has held that the POCSO Act does not bar the defence to cross examine a child witness but the statute protects the minor against aggressive questioning or character assassination.
“...the POCSO Act has clearly provided for provisions to protect the child from aggressive questioning or character assassination and to see that the dignity of the child is maintained at all times during the trial. This does not mean that the defence cannot or need not put questions to the child witness,” Justice Chandrasekharan Sudha said.
The Court made the observation while dismissing an appeal filed by a man challenging his conviction for the offences under Sections 342, 376(2)(i) and (l) of the Indian Penal Code, 1872, and Section 6 of the Protection of Children from Sexual Offences Act, 2012.
He was accused of wrongfully confining a minor girl aged 11 years at several occasions and committed aggravated penetrative sexual assault upon her. He was sentenced to undergo rigorous imprisonment for a period of 12 years as well as fine of Rs. 12,000.
Upholding the conviction, the Court noted that the victim spoke only two works in Maithili dialect during the course of recording her statement under Section 164 of Cr.P.C. that was translated by her mother.
The Court said that merely because oath was not administered to the minor victim or the interpreter would not automatically result in the rejection of the statements.
It observed there were ample materials to indicate the overt acts of the accused, and that the minor's testimony had to be read as a whole along with the gestures that she made, which were recorded by the trial court in her testimony. That would clearly establish or prove the act committed by the accused on PW1, it added.
Further, Justice Sudha held that the safeguards under the POCSO Act and the 2012 Rules are intended to protect and facilitate the child and cannot be converted into a technical ground for discarding otherwise reliable substantive evidence in the absence of demonstrated prejudice.
The Court also held that mere non-examination of every witness to the incident cannot result in an adverse inference when the evidence actually adduced is cogent, credible and sufficient to establish guilt beyond reasonable doubt.
Even though the Court upheld the trial court order, it highlighted an “incorrect procedure” adopted, even though no arguments were raised on it.
The trial court had disallowed certain questions suggestions sought to be put to the child victim by the defence, taking into account her tender age and the assessment that her mental age was around five years.
The questions proposed by the defence included suggestions that the alleged incident had not taken place and that the child had not raised any alarm or informed anyone about the alleged incident.
The trial court had disallowed the suggestions on the ground that the child was not capable of understanding their nature and import.
On this, the Court held that the trial court had erred in completely disallowing the questions.
Referring to Section 33 of the POCSO Act, the Court noted that the provision requires questions during the examination-in-chief, cross-examination or re-examination of a child to be communicated to the Special Court, which then puts those questions to the child.
“The procedure contemplated under Sub-section (2) of Section 33 ought to have been adopted by the trial court and not prevented the defence from putting the suggestions to the witness,” the Court said.
Title: SHANKAR SINGH v. STATE OF NCT OF DELHI