HARISHBHAI ABHESING BARIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present Criminal Revision Application under Section 397 of the Code of Criminal Procedure read with Section 311 of the Code of Criminal Procedure, the present applicant has challenged the legality and validity of an order dated 02.01.2021 passed below Exh.63 in Special Case No.44 of 2018 (POCSO) and prayed for grant of reliefs as prayed for in application at Exh.63.

(2.) The case of the applicant is that a complaint came to be filed being FIR No.C.R.No.I-29 of 2018 registered with Rajgadh Police Station, Panchmahals for the offences punishable under Sections 363, 366, 376(D) and 114 of the Indian Penal Code read with Sections 4, 6 and 17 of the POCSO Act read with Section 3(1)(w)(i)(ii) and Section 3(2)(5) of the Atrocity Act in which the applicant is made as one of the co-accused.

(3.) As per the say of the complainant, while they were attending the marriage function at the house of Bhavsinhbhai who is close relative, the prosecutrix and her mother have also accompanied to attend the said marriage function and during that night, the people present were dancing on the DJ music. According to the complainant, the alleged incident occurred in the early morning hours between 3 to 4 AM on 11.05.2018. As per the further narration in the FIR, the prosecutrix had gone to attend the nature's call after informing her mother alongwith 3 other girls as named in the examination, from where, it is alleged that accused No.1 i.e. present applicant and accused No.2 had thrown her over the wall near school and have attempted to rape the prosecutrix and upon such occurrence of incident, the applicant was found on the scene and therefore, was caught hold by family members of the prosecutrix. The complainant belong to Rathwa community and accused are belonging to Baria community, they are scheduled tribe and hence, according to applicant, the Atrocity Act may not be applicable. However, during the course of examination, an application was given at Exh.63 on 24.12.2020 under Section 311 of the Cr.P.C. for permitting to examine Dr.Bhakti Gor, Gynecologist, Civil Hospital, Godhra, who conducted the physical examination of prosecutrix as well as accused and is a P.W.No.9 whose deposition was taken at Exh.29 and hence, for the purpose of examination, a request is made to examine Dr.Bhakti Gor, as stated above. Simultaneously, a further request is made to cross-examine further the prosecution witness i.e. mother Gosliben as well as P.S.I. - Mr.Kiritkumar Vinodbhai Patel who was examined as P.W.10 at Exh.33 and hence, a summons be issued and this application was submitted alongwith another application at Exh.62 and both were clubbed and got decided by an order dated 02.01.2021 passed by the learned Additional Session Judge, Godhra a Special Judge (POCSO) who was pleased to allow Exh.63 application in part by permitting Dr.Bhakti Gor to be examined further who conducted the physical examination of prosecutrix and so far as prosecution witness No.2 Gosliben Rameshbhai Gamirbhai Rathva was already examined at Exh.11 and P.W.10 Kiritkumar Vinodbhai Patel examined at Exh.33, a request came to be rejected and in view of the order passed, Exh.62 application came to be disposed of and it is this order passed by the learned Special Judge (POCSO) and Additional Sessions Judge, Godhra is made the subject matter of present Revision Application under Section 397 of the Criminal Procedure Code.