How to open defence evidence in pocso rape cade

509 votes

It depends upon the stage and the ground which you will mention for not getting it recorded. If ground is genuine and judgment has not been pronounced by the court. Then we can file the application for opening up the defence evidence and court can recall the witnesses under section 311 of crpc or 348 of bnss. But, Court will not do it on normal circumstances but in exceptional case only. As your case is of POCSO then it is speedy trial then chances are less. But, you can take a chance if you have any ground by which you can satisfy the court. As there are Judgments also which you can refer in your favour.

Advocate Nitin Tyagi LawRato

617 votes

Yes, you may approach the Hon’ble High Court seeking reopening of the defence evidence stage, particularly if the accused was not given a fair and effective opportunity to lead defence evidence. The petition can rely on the principles of natural justice, right to fair trial, and prevention of miscarriage of justice. However, the High Court will consider the reasons for the earlier rejection and whether the proposed evidence is necessary for a just decision of the POCSO case.

Advocate Rahul Kumar LawRato

592 votes

Yes. If the defence evidence was closed without giving the accused a genuine and reasonable opportunity to lead material defence evidence, you can seek reopening before the High Court. The fact that the Sessions Court has already rejected the application does not by itself bar the High Court from exercising its revisional/inherent jurisdiction. In a POCSO case involving an allegation of rape, the High Court will, however, balance the accused's right to a fair opportunity of defence against the requirement of expeditious trial and the interests of the victim. You should demonstrate specifically what defence evidence was not permitted, why it was necessary, why it could not be produced earlier, and how refusal has caused prejudice to the accused's defence. A vague request merely stating that another opportunity is required is less likely to succeed. The appropriate application before the High Court should seek setting aside of the Sessions Court's order rejecting reopening and restoration/reopening of the defence evidence stage for the limited purpose of examining the specified defence witness/documents. The application should also explain that the request is not intended to delay the trial, but to ensure a fair opportunity to present the defence. If the trial is already at an advanced stage or judgment is imminent, the urgency should be specifically brought to the High Court's attention. Therefore, yes, you can approach the High Court for reopening of defence evidence, particularly where you can establish denial of a meaningful opportunity and consequent prejudice. The success of the application will depend substantially upon the reasons for the earlier closure, the reasons recorded by the Sessions Court while rejecting your application, and the precise defence evidence you now seek to introduce.

Advocate Yuganshu Sharma LawRato

677 votes

Yes. You can approach the High Court seeking reopening of the defence evidence stage, even if the Sessions Court has rejected the earlier application. The petition can rely on Section 311 CrPC / corresponding Section 348 BNSS, along with the right to a fair trial under Article 21. However, you must show a genuine reason why the defence evidence could not be led earlier and explain the materiality of the proposed evidence. Since it is a POCSO Section 6 case, the High Court will scrutinise the request strictly, particularly if recalling the child victim is sought.

Advocate Shakun Gosain LawRato

718 votes

Yes, depending upon the facts and the order passed by the Sessions Court, a remedy may be available before the High Court for restoration/reopening of the defence evidence stage. Since this is a POCSO case, the matter requires careful consideration of the trial stage, the reason for closure/rejection of defence evidence, and the contents of the Sessions Court order. Please obtain and review the impugned order and complete case proceedings before deciding the appropriate remedy.

Advocate Pooja Patel LawRato