- In the case of State of Karnataka vs Somanna and ors. Justice Nagaprasanna of the Karnataka HC has held that a survivor of a case which falls under the ambit of POCSO Act may be cross-examined by the State if she turns hostile.
- However, the Court also held that the cross-examination can be done only if it complies with the provisions of section 33 of the POCSO Act which mandates that while cross-examination is underway, the questions have to be addressed to the Court and the Court shall, in turn, put the same to the victim.
- In the instant case, the allegations under the accused persons were that despite knowing that the victim is a minor, they married her off to the first accused, who was also aware of the fact that she is a child. The first accused also committed sexual assault on her many times. During the course of the trial, however, the victim had turned hostile.
- Consequently, the State had sought permission from the Court to cross-examine the victim upon her turning hostile, which was refused by the Court. Aggrieved, the State had approached the HC challenging this order of the trial Court.
- The Counsel for the State argued that cross-examination of the victim is a right and this right cannot be taken away merely because the case falls under the ambit of POCSO.
- The Court observed that the only issue which requires the Court’s consideration is whether the victim under POCSO can be cross-examined once she turns hostile.
- The Court observed that in view of Section 33(2) of the POCSO Act, the Special Public Prosecutor shall, while recording the examination-in-chef, cross-examination or re-examination of the victim, communicate the questions to be put to the child to the Court, and that the Court shall, in turn, put these questions to the child. Thus, the victim is permitted to be cross-examined under POCSO Act in her turning hostile, which shall also cover the situation under section 33(2) of the Act.
- The HC also referred to the decision of the Apex Court in the case of Nipun Saxena vs Union of India (2019) SCC wherein the Court had observed that children and women particularly those who have been subjected to sexual assualt are so intimidated by the atmosphere of the Court that they are nable to describe the nature of the crime accurately. The Court also observed that when they are cross-examined in a hostile manner, then their nervousness increases and the truth does not come out. Thus, the Court emphasised upon the importance of having child-friendly Courtrooms.
- Referring to the order of the lower Court, the HC observed that it runs contrary to the decision of the Apex Court and other decisions of the Karnataka HC as well. Thus, the Court allowed the State to cross-examine the victim, but only in compliance with section 33 of POCSO Act.
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