Cross-examination under a POCSO case

Cross-examination in a Protection of Children from Sexual Offences (POCSO) case is the

process of questioning witnesses to ensure a fair trial. It's a fundamental right in the Indian
legal system, especially for serious offenses like those covered by the POCSO Act.
Cross-examination under the POCSO Act, 2012 has to be dealt with very gently and carefully
because it can lead to a person who is guilty of a crime, absolving or acquittal from the
charges levied leading to injustice to the child victim. Cross-examination has to be granted by
the magistrate only when the judge is fully convinced of the facts and circumstances of the
case and does not work arbitrarily.
Most of the time cross-examination of the child victim is not granted because of Section
33(5) of the said act, which states that the child victim shall not be called to the court
repeatedly to testify in the court. The aim of the POCSO Act i.e. to protect the child victim
from bearing the same trauma and tragic incident again and again, this would be defeated if
the court of law grants the cross-examination of the victim again and again.
Major Sections related to this are:
1. Section 33(6): Prohibits aggressive, harassing, or humiliating questioning of the child
victim. Questions must be respectful and age-appropriate.
2. Sec 33(5): Repeatedly calling child victim to testify.
3. Section 33(4): Child-friendly environment in the court.
4. Section 33(2): Section 33(2) of the POCSO Act prohibits the direct examination of the
victim. Instead, the Special Public Prosecutor or the defense counsel must submit their
questions to the Special Court, which will then be asked to the victims.
Given below are some of the cases that I have researched based on the topic of Cross-
Examination of Child Victims under POCSO Act, 2012.
 In a significant ruling, the Supreme Court of India expressed strong disapproval of the
cross-examination methods employed against a 4-year-old victim in a sexual assault
case. The case, Kesarinandan Sabhapati Upadhyay v. State of Maharashtra and
Another, Highlighted the challenges young witnesses face in legal proceedings. A
Bench led by Justices Abhay S. Oka and Augustine George Masih raised concerns
about the defense’s tactics, noting that the child was subjected to nearly 150 questions
during cross-examination. The victim cannot be subjected to more questions than
required.
 Kesari Nandan Sabhapati Upadhyay v. State of Maharashtra and Another highlighted
the challenges young witnesses face in legal proceedings. A Bench led by Justices
Abhay S. Oka and Augustine George Masih raised concerns about the defense’s
tactics, noting that the child was subjected to nearly 150 questions during cross-
examination. The Court, relying upon the above case, raised serious concerns
regarding the total number of questions the victim was subjected to, i.e., around 150
questions that are too much for a child who has gone through a tragic incident and
trauma.
  Right Of Accused to Cross-Examine Prosecutrix Can’t Always Be Denied Only
Because Of Section 33(5), POCSO Act: Uttarakhand High Court
The accused has the right to cross-examine the prosecutrix and it will not be denied because
of S.33(5) which states that the court must ensure that the child is not called repeatedly to
testify in the court. This does not mean that it will take away the rights of the accused.
Accused charged for committing serious offenses like rape, and penetrative sexual
intercourse should be given an adequate opportunity to cross-examine the witness.
 Prosecution can cross-examine the victims on her turning hostile: Karnataka HC
There can be instances where the victim (child) turns hostile because of the atmosphere in the
court and sometimes they are not able to describe the nature of the crime accurately. So, The
court should be child-friendly under Sec 33 (4) of POCSO which says that the Special Court
shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend, or
a relative, in whom the child has trust or confidence, to be present in the court.
 “Orissa High Court Upholds POCSO Act’s Limitations on Witness Recall,
Emphasizes Judicial Discretion”
Tapas Swain @ Tapas Kumar Swain v. State of Orissa & Another1
The Court in this case held that the accused also has the right to cross-examine the child
victim for further questioning. The court was of the above view on the case that the child
should not be called for further questioning as it would go against the purpose of the POCSO
which entails the protection of the children.
 State of Rajasthan v. Om Prakash (2015): In this case, the Indian Supreme Court
ruled that cross-examining medical experts’ testimony is necessary to determine the
veracity and trustworthiness of their conclusions. The court made it clear that the
cross-examination had to be handled fairly and professionally, without using any
strategies that would be detrimental to the interests of the young victim.
 Special Court Under POCSO Act Must Ensure That Child Victim Is Not Repeatedly
Called to Give Testimony: Apex Court
Madhab Chandra Pradhan & Ors. v. State of Odisha2
According to Sec 33(5), the child victim should not be called again and again to testify about
the same incident, this will have a deteriorating effect on the child who has suffered a
traumatic experience of sexual assault.
Reference was made to the landmark judgment of the Court in State (NCT of Delhi) v. Shiv
Kumar Yadav (2016)3 Which held that the plea for recall of a witness under Section 311 must
be bona fide and genuine. Secondly, applications for recall of a witness under Section 311
should not be allowed as a matter of course and the discretion given to the Court must be
exercised judiciously, not arbitrarily.
Pidika Sambaru VS State Of Odisha - Orissa Santosh Barar @ Raju VS State of M. P. -
Madhya Pradesh.
1
CRLMC No.1506 of 2024
2
Special Leave Petition (Crl.) No. 10082 of 2024.
3
(2016) 2 SCC 402
 1. While the rights of the accused to cross-examine are paramount, the courts also
recognize the need to balance these rights with the protection of child victims under
the POCSO Act. The courts have ruled that the denial of cross-examination must be
justified and cannot be based on delaying tactics by the accused
Conclusion on cross-examination in POCSO cases
After reading several case laws and judgments, I concluded that cross-examination is the
right of the accused and Section 33 (5) of the POCSO ACT states that no child victim shall be
called to court repeatedly to testify. Both things are to be balanced and should go hand in
hand and none of the two is absolute. If the court works arbitrarily and not judicially gives the
permission for cross examination, then the purpose for which the POSCO Act was framed
would be defeated i.e. to protect the child victim. Things change from fact to fact,
circumstances of different cases. The accused has the right to cross-examine the victim, but
this right is not absolute and subject to Section 33(5) of the accused.
Implications of Denying Cross-Examination
If the accused is denied the cross-examination of the victim, then it can lead to up following
situations
Denying the accused an opportunity to cross-examine the victim could:
 Violate Article 21 of the Constitution, which guarantees the right to a fair trial.
 This leads to violations of the rule of law and fair procedures established by law.

Cross-Examination Questions
Sample question for the complainant
1. What has happened?
2. When it happened?
3. Who did this?
4. At what place the incident took place?
5. At what time the incident took place?
6. Has anyone else seen it happening?
7. Was there any physical contact?
8. What was the response to the incident that occurred?
9. Do you recognize the accused personally or do you know the accused personally before the
incident?
10. What did you do after the incident happened?
11. Who was the first person to who the incident has been narrated?
12. Were you taken forcefully from your parent’s custody

Sample Question for Witness

1. When did you witness?
2. At what time did you witness?
3. Where did you witness?
4. Do you recognize the victim or accused?
5. Do you know someone else also who witnessed this incident?
6. What did you do after witnessing the incident?
7. Did you tell about the incident to someone else?

Sample Question for Respondent

 If the accused pleads that he is guilty then the questions to be asked to be asked are:

1. Why did you do that?

2. Was there any other person involved?
3. Where this incident took place?
4. Are you aware of the further charges on you?
5. What were the circumstances leading up to the incident?

 If the accused denies the charges or allegations then the question:

6. Is there any evidence that supports this contention?

7. Where were you when this incident happened?
8. Do you have any witnesses who can corroborate your whereabouts?

Sample Question for doctors

1. What are your educational qualifications?
2. Are you competent enough to do the medical examination?
Some questions that can be asked during cross-examination of a prosecutrix in a POCSO case
include:
1. Question about the victim’s moral character.
2. Delay in filing the FIR
3. Absence of proper medical evidence to connect the allegations of rape.
4. Did anyone force you to give any false statement in court?
5. Were you under any stress, coercion, or undue influence while giving any
statement in a court of law?
 6. Did you go under medical examination after the incident?
7. Did you know the accused before the incident?
8. Did the Police force you to give any false statement?
9. Did the accused threaten you after the alleged incident?

MS. N VS STATE & ANR

This Court, thinks, that in addition to the aforementioned conditions, the following
considerations should be kept in mind while considering grant of bail to an accused in
matters relating to sexual offenses specially the POCSO Act:
i. The age of the Victim;
ii. The age difference between the victim and the accused;
iii. The ferociousness of the offense;
iv. The relationship between the victim and the accused and;
v. The vicinity of the residence of the accused and the victim and if they are in
proximity then if the accused is willing to reside elsewhere, till the pendency of
trial

Riyaz vs State (Govt. Of NCT of Delhi) & Anr. on 27 August 2024

This Court thinks that the present case is of a love affair between the Prosecutrix and the
Petitioner. Consensual sex between girls who are just below the age of 18 years and boys who
are just above 20 years has been in a legal grey area because the consent given by a minor
girl cannot be said to be valid consent in the eyes of the law.
17. because of the law laid down by the Apex Court and because all the public witnesses,
including the Prosecutrix, have been examined, and also looking at the age of the Petitioner,
this Court thinks that no useful purpose would be served in keeping the Petitioner further in
custody. This Court, therefore, is inclined to grant bail to the petitioner on the following
conditions:
a) The petitioner shall give security in the sum of Rs.50,000/-
with two sureties in the like amount to the satisfaction of the Trial Court;
b) The Memo of Parties shows that the petitioner is residing at H.No.20, New MS Block,
Near OK Model School, New Delhi. The Petitioner is directed to continue to reside at the
same address and in case there is any change in the address of the Petitioner, the Petitioner is
directed to intimate the same to the Investigating Officer.
c) The Petitioner is directed not to leave the city of Delhi without seeking prior permission
from the concerned Court.
d) The Petitioner is directed to report to the local police station once in every week, i.e. on
every Wednesday at 10:30 AM and the Petitioner shall be released within half an hour after
completing the formalities.;
e) The Petitioner is directed to give all his mobile numbers to the Investigating Officer and
keep them operational at all times;
f) The petitioner shall not, directly or indirectly, tamper with evidence or try to influence the
witnesses in any manner;
g) The Petitioner is directed not to contact the Prosecutrix or any of her family members.
h) The petitioner shall attend all the Court proceedings.
i) In case it is established that the petitioner has tried to influence the witnesses or tamper
with the evidence, the bail granted to the petitioner shall stand cancelled forthwith.
The petition is disposed of along with all the pending application(s), if any.

In State of Maharashtra v. Bhatiya @ Rahul Arjun Gore14,

the girl quarrelled with her sister over the latter’s disapproval of her love affair with the
accused and left home. Her sister filed a missing complaint after which the girl herself came
before the police and mentioned in her statement that she was having a relationship with the
accused and intended to marry him. She did not, however, make any reference to sex with the
accused and also refused to undergo medical examination. After she returned home, the
sisters quarrelled again. The girl was brought to the police station and upon her refusal to live
with her family, she was sent to a Mahila Sudhar Gruh based on an order by the Child
Welfare Committee. When she was medically examined, on being asked by the doctor, she
mentioned sexual intercourse with the accused. Following this the girl was again taken to the
police station where she gave her statement revealing her affair with the accused and
admitted to having had sexual intercourse with him based on a promise to marry. Based on
her statement, she was treated as an informant and an FIR was lodged and charges under
Sections 4 and 6, POCSO Act and Section 376(2)(i) and Section 376(2)(n) of the IPC were
included.

A similar view has been taken by the Gujarat High Court in Jayantibhai Babulbhai
Alani v. State of Gujarat, (2018) SCC Online Guj. 1223, wherein the High Court has
observed as under:
 This is an unusual case of boy and girl having affair. As the prosecutrix was a minor, the
applicant was sent to prison because of the complaint lodged by the father of the prosecutrix.
Undoubtedly, a minor girl is to be protected under law as there are number of instances of
sexual abuses of minor girls therefore, there is special legislation of POCSO in the year 2012
and amendment in sections 375 and 376 of the IPC in 2014. The judiciary takes a very
serious note of sexual offences against women and specially against minor girls. Upon
reading of the statement of the prosecutrix, they both eloped. Further, the trial Court rejected
bail application mainly on the ground that the girl is minor and her consent is immaterial.
In the present case, the prosecutrix is 17 years 11 months old and the accused is 18 years
old. It appears from the record and the statement of the prosecutrix dated 07.04.2018 that
the prosecutrix was in love with the applicant and left the home of her own and moved
with the applicant at various places. These are the mitigating factors and therefore, the
present application deserves consideration." (emphasis supplied).
A co-ordinate Bench of this Court in Dharmander Singh v. State, (2020) SCC Online Del
1267, has laid down the parameters that are to be followed when considering bail of a
person accused under the POCSO Act, and the same reads as under:
Though the heinousness of the offense alleged will beget the length of sentence after trial, to
give due weightage to the intent and purpose of the Legislature in engrafting section 29 in
this special statute to protect children from sexual offenses, while deciding a bail plea at the
post-charge stage, in addition to the nature and quality of the evidence before it, the court
would also factor in certain real life considerations, illustrated below, which would tilt the
balance against or in favour of the accused:
a. the age of the minor victim: the younger the victim, the more heinous the offence alleged;
b. the age of the accused: the older the accused, the more heinous the offence alleged;
c. the comparative age of the victim and the accused: the more their age difference, the more
the element of perversion in the offence alleged;
d. the familial relationship, if any, between the victim and the accused: the closer such
relationship, the more odious the offence alleged;
e. whether the offence alleged involved threat, intimidation, violence and/or brutality;
f. the conduct of the accused after the offence, as alleged;
g. whether the offence was repeated against the victim; or whether the accused is a repeat
offender under the POCSO Act or otherwise;
h. whether the victim and the accused are so placed that the accused would have easy access
to the victim, if enlarged on bail: the more the access, greater the reservation in granting bail;
i. the comparative social standing of the victim and the accused: this would give insight into
whether the accused is in a dominating position to subvert the trial;
j. whether the offence alleged was perpetrated when the victim and the accused were at
an age of innocence: an innocent, though unholy, physical alliance may be looked at with less
severity;
k. whether it appears there was tacit approval-in-fact, though not consent-in-law, for the
offence alleged;
l. whether the offence alleged was committed alone or along with other persons, acting in a
group or otherwise;
m. other similar real-life considerations.
In Anant Janardhan Sunatkari v. State of Mahrashtra, (2021) SCC Online Bom.136, the
Bombay High Court, while dealing with a case involving a 19 year old boy who had
been convicted of rape of a 15 year old girl, released the accused on bail and has
observed as follows :
"11. I have perused the impugned judgment; evidence of victim, mother of victim and of PW-
6 (Classmate of the victim) as well the evidence of Medical Officer.
12. I am conscious of the fact that the passing of POCSO has been significant and progressive
step in securing children's rights and furthering the cause of protecting children against sexual
abuse. The letter and spirit of the law, which defines a child as anyone less than 18 years of
age, is to protect children from sexual abuse.
13. I am also conscious of the fact that consensual sex between minors has been in a legal
grey area because the consent given by minor is not considered to be a valid consent in eyes
of law.