S.348 BNSS | Kerala High Court Refuses To Recall POCSO Victim For Further Examination To Change Evidence On Compromise

The Kerala High Court has recently held that the powers under Section 311 CrPC or corresponding Section 348 BNSS cannot be invoked to recall a POCSO or rape victim for further cross-examination for changing the evidence given during trial.

Justice G. Girish reiterated the settled-position that the powers under Section 311 Cr.P.C. cannot be invoked in a routine manner, and can only be exercised if there are valid and sufficient grounds. The judge opined that the petitioner's attempt to compel the victim to state that the incident of rape did not occur amounted to degrading the sanctity and credibility of judicial proceedings.

The petitioner is an accused person who is facing criminal prosecution for allegedly committing offences under Section 376 [Punishment for rape], 323 [Punishment for voluntarily causing hurt] and 506 IPC [Punishment for criminal intimidation] and Sections 4, and 3(a) [penetrative sexual assault], 7 and 8 [sexual assault] of the POCSO Act. During the course of trial, the victim girl child (PW1) and 27 other prosecution witnesses were examined.

Before examining the investigating officers, the accused managed to get the case compromised with the victim and approached the High Court to quash the proceedings. He also filed a petition under Section 311 Cr.P.C. before the Special Court for recalling the victim to cross-examine her to bring out the settlement of issue between them. The petition was dismissed. Aggrieved, the petitioner has preferred the present petition.

The counsel for the petitioner submitted that the earlier evidence tendered by the victim was under external influence and since she has now expressed willingness to put forward a new version, she may be called to prove his innocence.

Noting that the victim had unwaveringly stood by the her version before the Investigating officer, Magistrate and during cross-examination, the Court observed:

"Now the effort being made by the petitioner/accused is to persuade the survivor to confess before the Trial Court that she had launched false prosecution and gave false evidence about the penetrative sexual assault perpetrated upon her by the accused/petitioner. No doubt, the above venture of the petitioner/accused cannot be given the stamp of approval of this Court, since the attempt of the petitioner in this regard is to subvert the due process of law."

Thus, the Court dismissed the petition.

Case Title: Shiju Krishnan v. State of Kerala

Case No: Crl.M.C. No. 6477 of 2025

Citation: 2025 LiveLaw (Ker) 472

Counsel for the petitioner: Rebin Vincent Gralan, Dinesh G. Warrier

Counsel for the respondent: G. Sudheer, Public Prosecutor

Click to Read/Download Judgment