Harishbhai Abhesing Baria vs.

State of
Gujarat

PREPARED BY:
AAKANKSHA H RAJDEV
92001041009
B.COM LLB HONS.
SEMESTER: IV
SUBJECT: LAW OF CRIMES-II
FACTS OF THE CASE:
The current incident occurred in the early morning between 3:00 to 4:00 on 11-05-2018.
It was held that the prosecutor and her mother went to attend the marriage function during the night at the house of Bhavsinbhai
who was a close relative of them.
 The prosecutor had gone to attend the nature’s call after informing her mother and the other 3 girls.
 It was alleged that accused no. 1 in the present case which is applicant and the accused no. 2 had thrown the prosecutor over
the wall near the school and had attempted to rape her and after that incident the applicant was found on the scene and he was
caught hold by the family members of the prosecutor.
Dr. Bhakti Gor, a Gynaecologists, Civil Hospital, Godhra has conducted the physical examination of prosecutor and both the
accused.  Dr. Bhakti Gor Gynaecologist, Civil Hospital, Godhra was examined on 24-12-2020.
 It was also requested to cross-examine the mother of the prosecutor named Gosliben and the P.S.I Mr. Kiritkumar Vinodbhai
Patel.  Above both the applications were merged and decided by order dated on 02-01-2021 by Add. Sessions Judge, Godhra.
 The order was passed by the learned Special Judge of POCSO and Additional Sessions Judge, Godhra which is made the subject
matter of present Revision Application under Section 397 of CrPc and for the offences punishable under section 363, 366 376 (D)
and 114 of IPC and applicant is made as one of the co-accused.
 The complainant belonged to Rathwa Community and the accused are belonging to Baria community and as they are scheduled
tribe and therefore the Atrocity Act may not be applicable here.
ISSUES
 Are the applicants liable under Section-363 andSection-366 of Indian PenalCode?
 Will the re-examination of the prosecutor’s mother and PSI will be taken into
consideration second time
ARGUMENTS FROM APPLICANT SIDE :
Mr. Jayraj Chauhan argued that the erudite judge had issued an order to dismiss the wellfounded legal proposition
on the matter of section 311 of Cr.P.C. and under the above proposal; the investigating officer as well as the
prosecutor's mother should have been allowed to re-examine.
He stated that at least an investigative officer should be allowed to re-examine.
The challenged order is therefore illegal, unenforceable under the law and deserves to be rectified by granting full
relief, as required in the Exh.63 application.
Mr. Chauhan, reiterated his view that the plaintiff argued in favor of intervention and as such, the restraining order
deserved to be overturned. No other submissions have been made.
In brief, Mr. Chauhan argued that the mother of the prosecutor and the PSI should be re-examined
ARGUMENTS FROM RESPONDENT SIDE:

From these submissions, Mr. J.K.Shah, learned the APP strongly opposed the review request on the grounds that it
was an established law, with the sole purpose of filling it as a void, with no intent.
What review is allowed and that is to say, it is not the subject of Section 311 of the Cr.P.C. It is further argued that
the trial judge provided good reason in exercising the discretion vested in him and therefore, in terms of
jurisdiction, these views were not immediately substituted.
Even if there could be another point of view if there wasn't any obvious illegality in error of the order.
Prosecution Witness-2 Gosliben Rameshbhai Gamirbhai Rathva was already crossexamined and apparently
questioned at Exh.11 after the learned lawyers appeared at each party and in addition, this request was made after
the change of lawyer and is therefore considered a valid reason to allow the dismissal of witnesses by exercising
authority under Section 311 of Cr.P.C. Mr. Shah also stated that medical office is also allowed to be examined and
the summons for the same is already issued.
JUDGEMENT:
Because the facts are peculiar in nature, as stated above, the Court examined the decisions cited by the learned
advocate for the applicant and found that the facts in those decisions are quite different from the facts in the case
at hand, and thus the ratio established by those decisions may not be applied as a straightjacket formula, and as
such, having examined the said decisions, the Court is of the opinion that the same may not be of any use.
Based on the facts as they stand on the record and the proposition of law set forth above, this Court concludes that
no cause has been made out that warrants any interference.
As a result, the Revision Application is dismissed as being without merit.
While parting with the present ruling, it should be noted that the Court's observations are limited to the current
disagreement, and the trial court should not be affected by them while making a decision in the main case.
Hence, the application is dismissed.
CONCLUSION:
Thus from the above case analysis we can conclude the following
points:
 The Advocates from both the sided have commonly argued on the re-
examination of PSI and the mother of the prosecutor.
 According to me, the applicants cannot be punished under Section-
363 and Section366 of the Indian Penal Code, because the prosecutor
was not kidnapped.
 The re-examination of PSI and the mother of the prosecutor were
not taken place as it was done before.
 The application was dismissed because of devoid of merit (without
merit).
Hence above are the points of conclusion
THANK YOU