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Rape- Accused cannot be acquitted merely because victim turned hostile and failed to identify him in the dock
Hemudan Nanbha Gadhvi vs State of Gujarat
CRIMINAL APPEAL NO.913 OF 2016
About/from the judgment:
The Supreme Court has held that merely because a rape survivor turns hostile and submits false evidence favouring the rapist, it would not be sufficient to acquit him if there is sufficient evidence to prove his guilt otherwise.
In this case, the Gujarat High Court had reversed a Trial Court’s acquittal of the rape accused after prime witnesses, including the prosecutrix/survivor, turned hostile. Dismissing an appeal preferred by the accused, the Bench of Justices Ranjan Gogoi and Navin Sinha affirmed the High Court’s conviction, noting,
“A criminal trial is but a quest for truth…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 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.“
The prosecutrix was raped in 2004, at which point she was about nine years old. A medical examination held the same day confirmed that she had been raped. The accused had been arrested on suspicion. A serological report found that the semen recovered from the prosecutrix was of the same group as that of the accused i.e. type B. The prosecutrix had also identified the accused as her rapist in a Test Identification Parade.
However, the prosecutrix and her mother turned hostile during the trial, eventually attributing the injuries of the prosecutrix to a fall. The prosecutrix also declined to identify the accused in court i.e. by dock identification. This lead to the acquittal of the accused.
The Supreme Court faulted the trial court, observing, inter alia, that the initial identification of the accused during the Test Identification Parade (TIP) ought not to have been dismissed altogether by the Trial Court.
“… it cannot be generalized as a 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 this case, the Supreme Court found that there was sufficient evidence to conclude that the accused was guilty, even if the prosecutrix had turned hostile.
“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…
… 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.“
The Bench also noted that the deposition in the case took place six months after the crime, which gave sufficient opportunity for the accused to influence the prosecutrix and her family, more so given that they were poor.
“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 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.“
Therefore, the Bench found that it was obligated to convict the accused/appellant for the crime.
“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.“
Before parting with the case, the Court also noted that ordinarily it would have ordered that action be taken against the prosecutrix for having given false evidence to the Court. However, the Bench took a lenient view, given that the incident had taken place 14 years ago when the prosecutrix was only a child.
“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.“
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