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2015 DIGILAW 448 (UTT)

MOHD. AASIM v. STATE OF UTTARAKHAND

2015-09-14

SUDHANSHU DHULIA

body2015
JUDGMENT : Hon’ble Sudhanshu Dhulia, J. (Oral) 1. The applicant before this Court is an accused for the offences punishable under Sections 376 and 506 of I.P.C. and Section 3/4 Protection of Children from Sexual Offence Act in Special Sessions Trial No. 47 of 2014, which is pending in the court of Fast Track Court/Additional District & Sessions Judge/Special Judge (POCSO), Dehradun. 2. The Special Judge (POCSO) framed the charges under the aforesaid Sections against the applicant on 02.02.2015 and thereafter the court concerned took cognizance in the matter against the applicant. The age of the girl/victim was 16 years on the date of incident. The girl/victim – Palak (P.W.1) was examined on 29.04.2015 and she was also cross-examined on the same day. Thereafter her father – Shiv Prasad Uniyal (P.W.2) was also examined, as prosecution witness, and gave his examination and examination-in-chief on 05.06.2015. 3. Now on 27.07.2015 the applicant/accused engaged another counsel and that new counsel moved an application, under Section 311 of Cr.P.C., for recalling the two witnesses of the prosecution i.e. P.W.1 and P.W.2. This application has been rejected by the court concerned vide order dated 12.08.2015. Aggrieved by the said rejection order, the applicant preferred present application before this Court. 4. The application refers to the date of birth and other details given by the prosecutrix and her father i.e. P.W.1 and P.W.2. The applicant wants to re-examine theose witnesses. This prayer of the applicant has been denied by the court concerned and rejected the same. 5. In view of this Court, the girl/victim has already been put to a lengthy cross-examination by the accused. Recalling of a child victim, who has been a victim of rape and sexual assault, cannot be permitted in a routine manner. Although Section 311 of Cr.P.C. gives wide powers to the trial court to re-examine or called for any witness, which has not been examined so far, in order to get the truth of the matter, yet presently the case before the Special Judge (POCSO) is also under the POCSO Act, which is a special Act. Clause (5) to Section 33 of the POCSO Act clearly states that “the Special Court shall ensure that the child is not called repeatedly to testify in the court.” 6. Clause (5) to Section 33 of the POCSO Act clearly states that “the Special Court shall ensure that the child is not called repeatedly to testify in the court.” 6. Even otherwise, this being a Special Act will have a overriding effect over any other provision of Cr.P.C. read with Section 35 of the POCSO Act, such trial as far as possible must be completed within the period of one year from the date of cognizance. Section 35 of the POCSO Act reads as under:- “35. (1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. (2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.” 7. In view of the above observation, this Court does not find any fault in the rejection of the application of the applicant. The application, moved by the applicant/accused, for calling the victim as well as another witness appears to be a delaying tactics. This Court does not find any fault in the order of the court below. 8. Accordingly, the application under Section 482 Cr.P.C. stands dismissed.