POCSO Act Doesn't Bar Cross-Examination of Child Witness

Source: Delhi High Court 

Why in News? 

A Bench of Justice Chandrasekharan Sudha, in Shankar Singh v. State of NCT of Delhi (2026), dismissed an appeal challenging a conviction under the POCSO Act while holding that the trial court had erred in disallowing certain cross-examination questions to be put to the child victim, terming it an "incorrect procedure." 

What was the Background of Shankar Singh v. State of NCT of Delhi (2026) Case? 

• The appellant was convicted for wrongfully confining an 11-year-old girl on several occasions and committing aggravated penetrative sexual assault upon her, under Sections 342, 376(2)(i) and (l) of the Indian Penal Code, 1860, and Section 6 of the POCSO Act. He was sentenced to 12 years' rigorous imprisonment along with a fine of Rs. 12,000. 
• The victim's statement under Section 164 CrPC was recorded with her speaking only two words in the Maithili dialect, which were translated by her mother. 
• During trial, the defence sought to put certain suggestions to the child victim, including that the incident had not occurred and that she had not raised any alarm or informed anyone.  
• The trial court disallowed these suggestions on the ground that the child, whose mental age was assessed at around five years, was not capable of understanding their nature and import. The appellant challenged his conviction before the Delhi High Court. 

What were the Court's Observations? 

• On Cross-Examination of a Child Witness under POCSO: The Court held that the POCSO Act protects a child from aggressive questioning or character assassination and ensures the child's dignity is maintained during trial, but this does not mean the defence cannot or need not put questions to the child witness. 
• On the Victim's Statement in a Regional Dialect: The Court noted the victim spoke only two words in Maithili during her Section 164 CrPC statement, translated by her mother, and held that the absence of oath administered to the minor victim or the interpreter would not automatically result in rejection of the statement. 
• On Sufficiency of the Evidence: The Court held that the minor's testimony had to be read as a whole, along with the gestures recorded by the trial court, and found ample material establishing the accused's overt acts. It further held that non-examination of every witness to the incident cannot result in an adverse inference when the evidence actually adduced is cogent, credible, and sufficient to establish guilt beyond reasonable doubt. 
• On the Safeguards under POCSO Not Being a Technical Ground: The Court held that the safeguards under the POCSO Act and the POCSO Rules, 2020 are intended to protect and facilitate the child, and cannot be converted into a technical ground for discarding otherwise reliable substantive evidence in the absence of demonstrated prejudice. 
• On the Trial Court's Erroneous Procedure: Even while upholding the conviction, the Court held that the trial court erred in completely disallowing the defence's proposed questions to the child victim on the ground that she could not understand them. Referring to Section 33 of the POCSO Act, the Court noted that questions during examination-in-chief, cross-examination, or re-examination of a child must be communicated to the Special Court, which then puts those questions to the child. It held that this procedure under Section 33(2) ought to have been adopted, and the defence should not have been prevented outright from putting the suggestions to the witness. 

What is Cross-Examination of a Child Witness under the POCSO Act? 

About the Act: 

• The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a landmark legislation enacted to safeguard children from sexual abuse and exploitation, addressing their inherent vulnerability and ensuring their safety and well-being. It was enacted in consonance with the Convention on the Rights of the Child, adopted by the UN General Assembly and acceded to by the Government of India on 11th December 1992. 

Preamble: 

• The Act protects children from offences of sexual assault, sexual harassment, and pornography, and provides for the establishment of Special Courts for the trial of such offences and matters connected or incidental thereto. 

Major Dates: 

• Enacted: 19th June 2012 
• Enforced: 14th November 2012 

POCSO Amendment Act, 2019: 

• Came into force on 16th August 2019. 
• Introduced more stringent penalties for offences under the Act. 
• Inserted Clause (da) in Section 2(1), defining "child pornography." 
• Brought penetrative sexual assault on a child below sixteen years of age within the ambit of Section 4 of the Act.

Cross-Examination of a Child Witness under the POCSO Act: 

Position under Section 33: 

The POCSO Act does not bar the defence from cross-examining a child witness. What it regulates is the manner in which such cross-examination is conducted, so as to protect the child from trauma while preserving the accused's right to a fair trial. 

Key Safeguards Governing Cross-Examination: 

• No Direct Interrogation: Neither the Special Public Prosecutor nor defence counsel puts questions directly to the child. Under Section 33(2), questions to be asked during examination-in-chief, cross-examination, or re-examination must first be communicated to the Special Court, which then puts those questions to the child in a manner it considers appropriate. 
• Protection, Not Prohibition: Section 33(6) prohibits aggressive questioning or character assassination of the child and requires that the child's dignity be maintained at all times, but this does not amount to a bar on cross-examination itself. 
• Frequent Breaks: The Special Court may permit breaks for the child as needed during the course of the trial. 
• Supportive Presence: A trusted family member, guardian, friend, or relative may be permitted to remain present with the child during testimony. 
• No Repeated Testimony: The child cannot be called to testify repeatedly.