Mere turned hostile by prosecutrix – a Rape Victim in identifying the Accused- did not result in Acquittal – when medical evidence proves Rape of the victim = The presence of semen belonging to Group B as of the appellant, on the clothes of the victim as also the appellant, were together sufficient to sustain the conviction. If PW­1 and 2 due to poverty, with sheer passage of time by six months before deposing in court had been won over, it will not detract from the offence committed by the appellant to warrant acquittal.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.913 OF 2016
HEMUDAN NANBHA GADHVI ….APPELLANT(S)
VERSUS
STATE OF GUJARAT …RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The appellant assails his conviction by the High Court under
Section 376(2)(f) IPC, sentencing him to ten years rigorous
imprisonment, with fine of Rs.5,000/­ along with a default
stipulation, after reversing his acquittal ordered by the trial court.
2. The prosecutrix PW­2, aged 9 years, was sexually assaulted
on 20.02.2004 by an unknown, tall and thin person wearing
white clothes. PW­3 Jasiben, accompanying the prosecutrix was
also a minor. She informed PW­1 Ambaben, the mother of the
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prosecutrix. F.I.R. was lodged by PW­1 the same day. The medical
examination of the prosecutrix was also done the same day, by
PW­9 Dr. Meghna Narendrabhai Mehta. Sexual assault on PW­2
stood established by rupture of the hymen, with fresh blood
oozing, and injury of 1.5 cm to 2 cm extending upto the lower
part of the body. The appellant and one Dhirubhai Mulubhai
Desai were taken into custody on suspicion. Test Identification
Parade (T.I.P.) was conducted by PW­11, the Executive
Magistrate, Dilipkumar Kantilal Rathod two days after the
occurrence on 22.02.2004. The T.I.P. report Exhibit P­38, bears
the thumb impression of PW­2 who was accompanied by her
mother. The appellant was identified by PW­2. Six months later,
on 31.08.2004 while deposing during trial PW­2 and PW­3 denied
the sexual assault and also declined dock identification. The trail
court consequentially acquitted the appellant.
3. The High Court, on appeal by the State, reversed the
acquittal, and convicted the appellant holding that the F.I.R.
lodged by PW­1 had been duly proved by PW­12 Police SubInspector
Bachubhai P. Kalsariya. The sexual assault on the
prosecutrix stood established by the medical report, corroborated
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by the presence of semen on the clothes of the prosecutrix, and
the appellant, proved by the FSL serological report as belonging to
Group B, which is the same as that of the appellant. The T.I.P.
identification of the appellant stood proved by PW­11. The
appellant was held to have won over the prosecutrix by sheer
passage of time and the consequent delay in trial, but that it
could not come to the aid of the appellant in view of the nature of
evidence available against him.
4. Learned counsel for the appellant assailing the conviction
contended that the T.I.P. is only corroborative evidence, and
cannot be put at par with substantive evidence for conviction.
There is not an iota of evidence with regard to the identity of the
appellant being the perpetrator, and dock identification of the
appellant had been declined. Reliance was placed on Sheikh
Sintha Madhar vs. State Rep. by Inspector of Police, (2016)
11 SCC 265 and Prakash vs. State of Karnataka, (2014) 12
SCC, 133. It was lastly contended that the serological report was
not formally exhibited and neither had the author of the same
been examined. No question was put to the appellant under
Section 313 Cr.P.C. with regard to the serological report, with an
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opportunity of defence, relying on Tara Singh vs. The State, AIR
1951 SC 441. The conviction was therefore unsustainable.
5. Learned counsel for the State opposing the appeal submitted
that the sexual assault on the prosecutrix stood established by
the medical report. The appellant had been identified in the T.I.P.
which was conducted without delay. The presence of semen
belonging to Group B as of the appellant, on the clothes of the
victim as also the appellant, were together sufficient to sustain
the conviction. If PW­1 and 2 due to poverty, with sheer passage
of time by six months before deposing in court had been won
over, it will not detract from the offence committed by the
appellant to warrant acquittal.
6. We have considered the submissions on behalf of the
parties. The records have also been perused including necessary
translations into English from vernacular language. PW­1 and
PW­2 have acknowledged having gone to the hospital on the day
of occurrence. PW­9, the doctor has confirmed the sexual assault
made on PW­2. The F.I.R. lodged by PW­1 on the same day
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stands proved by PW­12 the police Sub­Inspector who stated that
it was recorded by him exactly as dictated by the witness. He
also proved having forwarded the prosecutrix for medical
examination, the seizure of exhibits and sending the same to the
FSL. The prosecutrix was also confronted under Section 145 of
the Evidence Act with her statement under Section 161, Cr.P.C
confirming the sexual assault on her after she turned hostile,
contending that she had suffered injury in a fall. The nature of
injuries on her person are well nigh impossible due to a fall. Any
opinion of the doctor that such injury could be caused by a fall,
does not establish the injury as due to fall, as a fact but remains
a mere expression of an opinion.
7. The appellant was apprehended on suspicion along with
another. The T.I.P. was held without delay on 22.02.2004. Exhibit
P­38, the T.I.P. report bears the thumb impression of PW­2 who
was accompanied by her mother. The T.I.P. report has been duly
proved by PW­11. The appellant was identified by PW­2. There
appears no substantive challenge to the T.I.P. Identification in
the dock, generally speaking, is to be given primacy over
identification in T.I.P, as the latter is considered to be
corroborative evidence. But it cannot be generalized as a
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universal rule, that identification in T.I.P. cannot be looked into,
in case of failure in dock identification. Much will depend on the
facts of a case. If other corroborative evidence is available,
identification in T.I.P. will assume relevance and will have to be
considered cumulatively. In Prakash vs. State of Karnataka,
(2014) 12 SCC 133 it was observed as follows :
“16…. Even so, the failure of a victim or a
witness to identify a suspect is not always fatal
to the case of the prosecution. In Visveswaran v.
State it was held:
11. … The identification of the accused
either in a test identification parade or in
court is not a sine qua non in every case if
from the circumstances the guilt is
otherwise established. Many a time, crimes
are committed under the cover of darkness
when none is able to identify the accused.
The commission of a crime can be proved
also by circumstantial evidence.”
8. The family of the prosecutrix was poor. She was one of the
five siblings. The assault upon her took place while she had
taken the buffalos for grazing. Her deposition was recorded nearly
six months after the occurrence. We find no infirmity in the
reasoning of the High Court that it was sufficient time and
opportunity for the accused to win over the prosecutrix and PW­1
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by a settlement through coercion, intimidation, persuasion and
undue influence. The mere fact that PW­2 may have turned
hostile, is not relevant and does not efface the evidence with
regard to the sexual assault upon her and the identification of the
appellant as the perpetrator. The observations with regard to
hostile witnesses and the duty of the court in State vs. Sanjeev
Nanda, 2012 (8) SCC 450 are also considered relevant in the
present context:
“101…..if a witness becomes hostile to subvert
the judicial process, the court shall not stand as
a mute spectator and every effort should be made
to bring home the truth. Criminal justice system
cannot be overturned by those gullible witnesses
who act under pressure, inducement or
intimidation. Further, Section 193 IPC imposes
punishment for giving false evidence but is
seldom invoked.”
9. A criminal trial is but a quest for truth. The nature of
inquiry and evidence required will depend on the facts of each
case. The presumption of innocence will have to be balanced with
the rights of the victim, and above all the societal interest for
preservation of the rule of law. Neither the accused nor the
victim can be permitted to subvert a criminal trial by stating
falsehood and resort to contrivances, so as to make it the theatre
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of the absurd. Dispensation of justice in a criminal trial is a
serious matter and cannot be allowed to become a mockery by
simply allowing prime prosecution witnesses to turn hostile as a
ground for acquittal, as observed in Zahira Habibullah Sheikh
vs. State of Gujarat, (2006) 3 SCC 374 and Mahila Vinod
Kumari vs. State of Madhya Pradesh, (2008) 8 SCC 34. If the
medical evidence had not confirmed sexual assault on the
prosecutrix, the T.I.P. and identification therein were doubtful,
corroborative evidence was not available, entirely different
considerations may have arisen.
10. It would indeed be a travesty of justice in the peculiar facts
of the present case if the appellant were to be acquitted merely
because the prosecutrix turned hostile and failed to identify the
appellant in the dock, in view of the other overwhelming evidence
available. In Iqbal vs. State of U.P., 2015 (6) SCC 623, it was
observed as follows:
“15. Evidence of identification of the miscreants
in the test identification parade is not a
substantive evidence. Conviction cannot be
based solely on the identity of the dacoits by the
witnesses in the test identification parade. The
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prosecution has to adduce substantive evidence
by establishing incriminating evidence
connecting the accused with the crime, like
recovery of articles which are the subject matter
of dacoity and the alleged weapons used in the
commission of the offence.”
11. The corroboration of the identification in T.I.P is to be found
in the medical report of the prosecutrix considered in conjunction
with the semen found on the clothes of the prosecutrix and the
appellant belonging to the Group B of the appellant. The vaginal
smear and vaginal swab have also confirmed the presence of
semen. A close analysis of the facts and circumstances of the
case, and the nature of the evidence available unequivocally
establishes the appellant as the perpetrator of sexual assault on
the prosecutrix. The serologist report was an expert opinion
under Section 45 of the Evidence Act,1872 and was therefore
admissible in evidence without being marked an exhibit formally
or having to be proved by oral evidence.
12. The contention on behalf of the appellant that the serological
report was not put to him by the court under Section 313 Cr. P.C.
and therefore, he has been prejudiced in his defence, has been
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raised for the first time before this court. The serological report
being available, it was a failure on the part of the trial court to
bring it to the attention of the appellant. The prosecution cannot
be said to be guilty of not adducing or suppressing any evidence.
In view of the nature of the evidence available in the present case,
as discussed hereinbefore, we are of the opinion that no prejudice
can be said to have been caused to the appellant for that reason,
as held in Nar Singh vs. State of Haryana, (2015) 1 SCC 496:
“32….When there is omission to put material
evidence to the accused in the course of
examination under Section 313 CrPC, the
prosecution is not guilty of not adducing or
suppressing such evidence; it is only the failure on
the part of the learned trial court. The victim of the
offence or the accused should not suffer for laches
or omission of the court. Criminal justice is not
one­sided. It has many facets and we have to draw
a balance between conflicting rights and duties.
33. Coming to the facts of this case, the FSL report
(Ext. P­12) was relied upon both by the trial court
as well as by the High Court. The objection as to
the defective Section 313 CrPC statement has not
been raised in the trial court or in the High Court
and the omission to put the question under Section
313 CrPC, and prejudice caused to the accused is
raised before this Court for the first time. It was
brought to our notice that the appellant is in
custody for about eight years. While the right of the
accused to speedy trial is a valuable one, the Court
has to subserve the interest of justice keeping in
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view the right of the victim’s family and society at
large.”
13. The present was an appropriate case to direct the prosecution
of the prosecutrix under Section 344 Cr.P.C alike Mahila Vinod
Kumari (supra) for tendering false evidence. But considering that
the prosecutrix was barely 9 years old on the date of occurrence,
that the occurrence had taken place 14 long years ago, she may
have since been married and settled to a new life, all of which
may possibly be jeopardised, we refrain from directing her
prosecution, which we were otherwise inclined to order.
14. The appeal is dismissed.
………………………….J.
[RANJAN GOGOI]
………………………….J.
[NAVIN SINHA]
………………………….J.
[K.M. JOSEPH]
NEW DELHI
SEPTEMBER 28, 2018.
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