Trial court may recall child witness to clarify ambiguous testimony, Gauhati High Court rules while upholding POCSO conviction મિ 20-year sentence

The appellant was convicted under Section 376AB IPC and Section 6 of the POCSO Act for sexually assaulting a child aged five years and ten months, and sentenced to 20 years’ rigorous imprisonment and a fine.

At trial, the child’s examination-in-chief and cross-examination described the appellant gagging her and touching her body and chest, but did not mention penetration.

In a further examination six months later, she stated that he had inserted his finger into her private parts.

The Trial Court had recalled her to clarify what it considered ambiguous evidence, and the appellant was permitted to re-cross-examine her.

The appellant appealed, arguing that the further examination improperly introduced a new fact and that the evidence did not establish penetrative sexual assault.

Whether the Trial Court could recall and further examine the victim under Section 311 CrPC to clarify ambiguity, notwithstanding the limits on re-examination under Section 138 of the Evidence Act.

Whether the victim’s evidence in further examination, considered with her Section 164 CrPC statement, supported the conviction under Section 6 of the POCSO Act and Section 376AB IPC.

Section 138 of the Indian Evidence Act, 1872 provides that re-examination is ordinarily directed to explaining matters raised in cross-examination; a new matter may be introduced with the court’s permission, subject to further cross-examination.

Section 311 CrPC empowers a court to recall and re-examine a witness where the evidence appears essential to a just decision, but the power must be exercised judicially and not to fill a party’s lacuna or cause unfair prejudice.

The Court applied Sections 375 and 376AB IPC and Sections 3 and 6 of the POCSO Act, under which insertion of a body part into a child’s private parts constitutes penetrative sexual assault and attracts the prescribed punishment.

It also relied on Pannayar v. State of Tamil Nadu, (2009) 9 SCC 152, concerning the proper scope of re-examination, and Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, concerning the court’s power to recall and re-examine a witness where essential to a just decision.

The Court held that the Trial Court had recalled the child because her initial testimony was ambiguous and further evidence was considered necessary to reach a just decision.

Section 311 CrPC permitted that course, and the appellant had the opportunity to re-cross-examine her; accordingly, the later testimony was not excluded merely because it introduced the penetration detail.

Although the Court acknowledged that the further testimony was weakened by its omission from the initial examination, it found it truthful and corroborated by the child’s Section 164 CrPC statement that the appellant had inserted his finger into her private parts.

The evidence therefore supported penetrative sexual assault notwithstanding the medical evidence recording no injury.

Finding no ground to disturb the conviction or sentence under Section 6 of the POCSO Act, the Court dismissed the appeal and directed that the Trial Court record be returned.