Punjab & Haryana High Court: POCSO Trial Witnesses Cannot Retract Sworn Testimony Through Subsequent Affidavits; Recall Under Section 231 CrPC Impermissible

Case Name: Chander Dev alias Chand Singh v. State of Haryana & Others

Date of Judgment: 30 July 2026

Citation: CRM-M-37543-2018

Bench: Hon’ble Mrs. Justice Manisha Batra

Held: The Punjab and Haryana High Court held that substantive prosecution witnesses in a criminal trial, particularly in prosecutions under the POCSO Act, cannot be permitted to retract or neutralise their sworn judicial testimony through affidavits executed after their examination and cross-examination have concluded. Section 296 CrPC applies only to witnesses of a formal character and cannot be invoked to place on record affidavits contradicting substantive evidence. Likewise, the power to recall witnesses under Section 231 CrPC cannot be exercised merely to enable prosecution witnesses to withdraw or contradict their earlier testimony. Permitting such a course would undermine the sanctity of evidence recorded during trial and adversely affect the fairness and credibility of criminal proceedings.

Summary: The petitioner challenged two orders passed by the Trial Court in a prosecution arising out of offences under Section 377 IPC and Section 6 of the POCSO Act. The first order rejected an application filed by the victim’s father under Section 296 CrPC seeking permission to place affidavits on record stating that the petitioner was innocent and that the FIR had been lodged due to misunderstanding. The second order dismissed the petitioner’s application under Section 231 CrPC seeking recall of the victim and his father for further examination in light of those affidavits.

The prosecution case alleged that the petitioner, while serving as an Upacharya (teacher) in a Gurukul, had repeatedly committed unnatural sexual assault upon a minor student over a period of approximately one year and threatened him with humiliation and academic consequences if he disclosed the incidents. During investigation, the victim reiterated these allegations in his statement recorded under Section 164 CrPC. Subsequently, during trial, both the victim and his father entered the witness box and fully supported the prosecution case on oath. Only after their examination and cross-examination had concluded did they execute affidavits asserting that the petitioner had committed no offence and that the complaint had been lodged due to misunderstanding or tutoring.

The petitioner contended that the object of a criminal trial is to discover the truth and that the complainant, after attaining majority, had voluntarily clarified the true factual position. It was argued that the affidavits constituted material evidence which ought to have been accepted under Sections 295 and 296 CrPC and that denial of recall under Section 231 CrPC violated the petitioner’s right to a fair trial under Article 21 of the Constitution.

Rejecting these submissions, the High Court observed that Section 296 CrPC is confined to evidence of witnesses of a formal character and cannot be extended to substantive prosecution witnesses seeking to retract sworn testimony. The Court further held that Section 231 CrPC is not intended to facilitate the recall of witnesses merely to enable them to resile from statements already made before the Court. Such a practice would seriously erode the sanctity attached to judicial testimony and encourage witnesses to alter their evidence after completion of examination, thereby compromising the integrity of criminal trials.

The Court also declined to attach significance to the victim’s subsequent claim, made after attaining majority, that the petitioner was innocent. It held that the evidentiary value and credibility of rival versions are matters to be assessed by the Trial Court at the stage of final appreciation of evidence. However, statutory procedural safeguards cannot be circumvented by permitting witnesses to replace or neutralise their judicial testimony through subsequently executed affidavits. The Court emphasised that prosecutions under the POCSO Act concern grave, non-compoundable offences and must proceed strictly in accordance with the procedure established by law, free from the influence of post-testimony retractions. Finding no perversity or jurisdictional error in the impugned orders, the High Court dismissed the petition.

Decision: The High Court dismissed the petition and upheld the Trial Court’s refusal to accept post-testimony affidavits of the victim and his father under Section 296 CrPC and its refusal to recall them under Section 231 CrPC. The Court held that subsequent affidavits cannot be used to retract or dilute sworn evidence recorded in a POCSO trial.