Court Allows Child Abuse Case Accused To Cross-Examine Survivor

The trial court had earlier rejected the petitioner's plea on the ground that the main witness was a 'child' and that as per POCSO Act, the child witness cannot be called repeatedly to testify in the court.

In a significant judgment, the Madras High Court has held that an accused in a Protection of Children from Sexual Offences (POCSO) case might be allowed to cross-examine the survivor, who was a minor at the time of occurrence, but an adult (21 years old) now.

Justice A D Jagadish Chandira gave the ruling while allowing a criminal original petition from S Ganeshan of Coimbatore, recently.

In this case, the petitioner has been charged for the offences under Section 366 of the IPC, Section 5(l) read with Section 6 of the POCSO Act (sexual assault) and under Section 9 of the Prohibition of Child Marriage Act, 2006. Section 29 of the POCSO Act stated that the Special Court for POCSO cases shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be, unless, the contrary is proved.

"In view of this, a heavy burden is caused on the petitioner to rebut the presumption which operates against him. The three prosecution witnesses (PWs) -- two doctors and the victim -- are crucial to the case. If the witnesses are not cross-examined, the evidence stands unrebutted and it would amount to a case of no defence resulting in grave prejudice to the petitioner. In this case, the victim is now aged about 21 years and she will not fall within the definition of 'child' so as to attract Sec. 33(5) of the POCSO Act."