Chennai: Protection of Children from Sexual Offences Act, 2012 (Pocso) Act takes the prosecution of the offender and the well-being of the child hand in hand. It is not as if the interests of the child can be sacrificed for the sake of the trial, Madras high court has said.Justice D Bharatha Chakravarthy observed this on Tuesday while censuring the prosecution for producing a child survivor in court eight years after the incident, citing the child was in a state of fear during the earlier deposition.“It is for prosecution to establish its case through available witnesses. The mother has been examined, and the child’s testimony is on record. With the available evidence, the prosecution can proceed with the trial. I am of the view that there is neither any legal basis nor justification for recalling the child witness again,” the court said.“More specifically, the very purpose of protecting the survivor would be defeated if the child witness is recalled. Recalling a child witness, particularly the victim of a sexual offence, either at the instance of the prosecution or at the instance of the accused, cannot be permitted by this court, the judge added.“There is absolutely no justification for the stakeholders expecting the child to narrate the episode after eight years, when the child was not even able to narrate immediately. The magistrate had at the relevant time failed to understand that the child would not make coherent statements. Instead, the child could have been asked to indicate where it was painful,” the court said.In the present application or order of recalling the witness in this case, sadly, the relevant aspects are not even argued or discussed. Thus, it can be seen that we have a long way to go in understanding survivors, their inner voice, and the art of empathising with them, the judge added.
