Gujarat High Court

Dhaval Bijalji Thakore vs State Of Gujarat on 10 January, 2023

Bench: Ilesh J. Vora

      R/SCR.A/10133/2022                             ORDER DATED: 10/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 10133 of 2022

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                           DHAVAL BIJALJI THAKORE
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. NISARG N JAIN(8807) for the Applicant(s) No. 1
MR JK SHAH, APP the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 10/01/2023
                       ORAL ORDER

1. Rule. Learned APP waives service of rule for the respondent

- State. With the consent, the matter is taken up for final

disposal.

2. By way of this application filed under Article 226 of the

Constitution of India read with Section 482 of the Code of

Criminal Procedure, 1973, the applicant has invoked

extraordinary jurisdiction of this Court challenging the

order dated 08.09.2022 passed below Exhs.40 and 44 in

Special POCSO Case No.324 of 2019, by the Special

POCSO Judge, City Civil and Sessions Judge, Ahmedabad,

whereby the Court did not grant permission to the

accused-applicant to ask certain questions and closed the

right of cross-examination of the victim.

R/SCR.A/10133/2022 ORDER DATED: 10/01/2023

3. The applicant herein has been charged with Sections 363,

366 and 376(2) of the IPC and Sections 5(L), 6 and 17 of

the POCSO Act.

4. This Court has heard learned advocate Mr.Niraj Jain

appearing for and on behalf of the applicant-original

accused and on advance copy, learned APP Mr.J.K. Shah.

5. Mr.Jain, learned counsel for the applicant would submit

that the learned Trial Court failed to provide sufficient

opportunity to the applicant to prove his defence. He would

further submit that at the relevant time, the victim had

informed the applicant that her mother wanted to get

marry with the person who is elder than her and therefore,

she does not want to marry him and had asked for

necessary help for which repeatedly she had called the

applicant through mobile and whatsapp call. It is in this

context, he submitted that during the cross examination of

the victim, the defence counsel asked some relevant and

necessary questions which directly impact on the

truthfulness, veracity of the witness. He would further

submit that the identity of the husband of the victim would

not fall under Section 33 of the POCSO Act. He would

further submit that in order to establish the factum of

R/SCR.A/10133/2022 ORDER DATED: 10/01/2023

mobile calls made by the victim, the cell number from

which calls were made is required to be brought to the

notice of the Court so that the accused can examine calling

the service provider of the cell phone. He would further

submit that while refusing the permission to ask some

questions to the victim, the Trial Court should not have

closed the right of the cross examination which is the

fundamental right of the accused to establish his defence.

6. In the aforesaid contentions, learned counsel for the

applicant would submit that the impugned order passed

below Exh.40 is contrary to the principle of law and

fundamental right of the applicant to defend his case.

7. On the other hand, learned APP Mr.J.K. Shah for the

respondent-State, contended that the learned Trial Court

has properly interpreted the mandatory provisions of

Section 33(7) as it is mandatory on the part of the Trial

Court to ensure that the identity of the child is not

disclosed at any time during the trial. He would further

submit that denial to ask certain questions as referred by

learned counsel for the applicant would not in any way

prejudice the right of the accused and therefore, no any

grounds exist to interfere with the impugned order.

R/SCR.A/10133/2022 ORDER DATED: 10/01/2023

8. Heard at length learned advocates for the respective parties

and perused the impugned order.

9. In the facts of the present case, the applicant - accused is

facing the charges of abduction and rape. The victim at the

relevant time was below 18 years. Section 33 of the POCSO

Act, 2012 provides for procedure and powers of the Special

Court while conducting the trial of the case. Sub-section

(7) of Section 33 cast a duty upon the Court to ensure that

the identity of the child is not disclosed at any time during

the course of investigation or trial. In such circumstances,

the question with regard to husband's name of the victim

and recording the cell number of the victim having been

rightly rejected by the Trial Court. It is open for the

applicant - accused to examine the witnesses of the service

provider by citing the cell number which was used by the

victim so as to establish the facts of the CDR. In such

circumstances, this Court is of the opinion that two

questions asked by the defence counsel would certainly

disclose the identity of the victim and therefore,

considering the mandatory provisions of the Act, the Trial

Court has not committed any error of law while rejecting

the application.

R/SCR.A/10133/2022 ORDER DATED: 10/01/2023

10. Mr.Jain, learned counsel submitted that in order to

establish the conduct of the victim, the question with

regard to filing of another FIR by the mother of the victim

was also rejected by the Court without assigning any

reason and therefore, so far question with regard to

another FIR lodged by the mother of the victim is

necessary to show the conduct of the parties.

11. In the case of Kartarsingh Vs. State of Punjab (1994(3)

SCC 569), the Apex Court explained the purpose of cross

examination of the witness. The Apex Court has observed

in Para-278 of the said judgment as under:

"Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross- examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness of his adversary;

(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;

R/SCR.A/10133/2022 ORDER DATED: 10/01/2023

and the questions to be addressed in the course of cross- examination are to test his veracity; to discovery who he is and what is his position in life; and to shake his credit by injuring his character."

12. Keeping in view of the facts of the present case and

applying the principles laid down by the Apex Court, I am

of the view that the Trial Court could not have refused the

permission to ask necessary questions with respect to

earlier complaint and/or case. Even otherwise, the closure

of the right of cross examination of the victim is also

against the statutory right of the accused to cross examine

witnesses.

13. In view of the above, the applicant - accused is permitted

to ask the questions with respect to the complaint and/or

FIR registered in the year 2022. The learned Trial Court

shall recall the victim and fix the date for further cross