ANANDBHAI BHARATBHAI VAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this writ application, filed under Article 226 of the Constitution of India read with Sec. 482 of Cr.P.C, the applicant herein challenges the order below Exh.62, dtd. 9/12/2022 passed by the Additional Sessions Judge, City Sessions Court, Court No.24, Ahmedabad, by which, the request made by the applicant-accused to examine the defence witness one Mr. K.G. Zala, Police Inspector, Naranpura Police Station, who has recorded the statement of the victim in connection with the offence registered for the offences punishable under Ss. 323 and 307 etc.

(2.) Facts and circumstances giving rise to filing of present application are that, pursuant to the FIR dtd. 5/3/2021, registered with Vadaj Police Station, Ahmedabad, for the offfences punishable under Ss. 376, 376(2)(n), the applicant herein was apprehended and after completion of investigation, charge-sheet came to be filed against him and the same has been culminated into Sessions Case being registered as 213 of 2021. The City Sessions Court, Ahmedabad framed the charge and accordingly, trial began and after completion of prosecution evidence, the applicant-accused called upon on his defence and adduce evidence in support thereof. The applicant-accused moved an application Exh.62, for the issuance of process upon witness P.I., Mr. K.G. Zala, who had recorded the statement of the victim in connection with the offence registered with Naranpura Police Station for the offences under Sec. 307 of the IPC. The reason for examination of the witness is that, the victim in her statement recorded under Sec. 161 of Cr.P.C., made certain admission with regard to consensual physical relationship and the same has been mentioned in the application. It is averred that, the factum of statement dtd. 24/11/2020, recorded by Mr. Zala, was referred to the victim in her deposition and same has been denied. Thus, in order to contradict the evidence of the victim and impeach her credibility, the witness Mr. Zala is necessary to ascertain the truth.

(3.) The learned trial Court after giving opportunity of being heard to both the sides, rejected the application vide its order dtd. 9/12/2022, observing that, in the offence registered under Sec. 307 has no any co-relation with the offence registered under Sec. 376 of the IPC. It is further observed that, the victim has not examine in the offence registered under Sec. 307 and therefore, admission unless and until she be not examined by the Court, the statement recorded under Sec. 161 of Cr.P.C. is not relevant fact. It is further observed that, the statement recorded under Sec. 161 of Cr.P.C. shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Sec. 162(1) of the Cr.P.C. and that too, in the trial of Sec. 307 of the IPC.