Facts
The survivor child, aged 6 years, was sexually assaulted by the accused person, and a FIR was registered under Sections 376, 342 of the IPC and Section 6 of the POCSO Act. The chargesheet was subsequently filed, and the statements of the child survivor were recorded. However, during the trial of the case, counsel of the accused contested that they were prevented from cross-examining the witness as to test her memory and bring out facts of material omission and hence wanted to recall the child witness for further examination. The application was rejected by the Trial court. An appeal was filed by the accused against the order of the trial court on the ground that the refusal of his application under Section 311 of the CrPC is violative of the Constitutional guarantee to an accused and vitiates the trial.
Judgment
The petition of the accused for recall for cross-examination was dismissed by the Court. It was held that Section 311 of the CrPC, in such cases, should be subject to Section 33(5) of the POCSO Act on the principle of generalia specialibus non-derogant. The child survivor was extensively examined for several hours, and any recall at this stage would fall foul of the provisions of Section 33(5) of the POCSO Act and the intent behind enacting the Section. The court further held that conflicting rights of the accused and the survivor have to be balanced when considering such an application, ensuring substantial justice by allowing the accused to cross-examine, the threshold for which is not met in the present case.
High Court of Madras