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2023 Supreme(Online)(GUJ) 181
HIGH COURT OF GUJARAT
ILESH J. VORA, J
ANANDBHAI BHARATBHAI VAGHELA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 1206 of 2023
For the Appellants/Petitioners: MR. JAY G THAKER, ROSHANKUMAR S PARMAR
For the Respondents: MS MOXA THAKKAR, APP
The court emphasized the importance of allowing defence witnesses to ensure the accused's right to a fair trial and the relevance of prior statements in impeaching credibility.
Headnote:(A) Constitution of India - Article 226 - Criminal Procedure Code, 1973 - Section 233 - Writ application challenging trial court's rejection of the application to examine a defence witness - Court held that the trial court failed to appreciate the relevance of prior statements for establishing a defence - The witness's statement was essential to impeach the credibility of the victim's testimony in the context of the accused's rights to a fair trial. (Paras 8, 10)
(B) Criminal Procedure - Fair trial rights - The function of the court is to ensure all necessary evidence is available to support the accused's case and to prevent any undue hindrances in presenting a defence. (Paras 8, 9)
Facts of the case:
The applicant challenged an order rejecting the request to examine a police witness whose prior statement potentially contradicted the victim's claim of non-consensual sex. The trial court found the witness irrelevant, ruling the statement was not substantive evidence.
Findings of Court:
The court overruled the trial court's decision, stating that the witness's earlier statement was relevant to the defence and crucial to ensure a fair trial.
Issues: The relevance of statements recorded under Section 161 of Cr.P.C. in establishing the defence of the accused was a key question.
Ratio Decidendi: The court emphasized the duty of the trial court to allow the examination of defence witnesses unless justified otherwise, highlighting the importance of ensuring that an accused can adequately defend themselves.
Result: The application is allowed, and the trial court is directed to issue process upon the witness.
| Table of Content |
|---|
| 1. application for defence witness examination (Para 1 , 2) |
| 2. trial court's rejection analysis (Para 3 , 4) |
| 3. relevance of witness statements for fair trial (Para 8 , 9 , 10) |
ORDER
1. By way of this writ application, filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C, the applicant herein challenges the order below Exh.62, dated 09.12.2022 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 Sections 323 and 307 etc.
2. Facts and circumstances giving rise to filing of present application are that, pursuant to the FIR dated 05.03.2021, registered with Vadaj Police Station, Ahmedabad, for the offfences punishable under Sections 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 Section 307 of the IPC. The reason for examination of the witness is that, the victim in her statement recorded under Section 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 dated 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 dated 09.12.2022, observing that, in the offence registered under Section 307 has no any co-relation with the offence registered under Section 376 of the IPC. It is further observed that, the victim has not examine in the offence registered under Section 307 and therefore, admission unless and until she be not examined by the Court, the statement recorded under Section 161 of Cr.P.C. is not relevant fact. It is further observed that, the statement recorded under Section 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 Section 162(1) of the Cr.P.C. and that too, in the trial of Section 307 of the IPC.
4. Aggrieved with the order, the applicant-accused preferred instant writ application, inter alia, challenging the validity and sustainability of the order.
5. Mr. R.S. Parmar, learned counsel appearing for and on behalf of the applicant-accused would submits that, the learned trial Court failed to appreciate the facts that, the applicant has been charged with serious offence of rape and at the relevant time, the victim was major aged about 29 years and before registration of offence of rape, the brother of the victim lodged an FIR dated 23.11.2020, registered with Naranpura Police Station for the offences punishable under Section 307 of the IPC etc. wherein the investigating officer Mr. K.G. Zala recorded the statement of the victim and in that statement, the elements of consent of the alleged act of sexual relationship has been referre
