HEMUDAN NANBHA GADHVI versus STATE OF GUJARAT on 28 September 2018

SUPREME COURT REPORTS[2018] 12 S.C.R. 672

[2018] 12 S.C.R.

HEMUDAN NANBHA GADHVI

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STATE OF GUJARAT

(Criminal Appeal No. 913 of 2016)

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SEPTEMBER 28, 2018

[RANJAN GOGOI, NAVIN SINHA AND K. M. JOSEPH, JJ.]

Penal Code, 1860: s.376(2)(f) – Sexual assault on minor –Accused-appellant was identified by prosecutrix in test identificationparade – However, six months later, while deposing during trial,Cthe prosecutrix and the other minor eye-witness denied the sexualassault and also declined dock identification – Acquittal by trialcourt – High Court reversed the order of acquittal holding that thesexual assault on the prosecutrix was established by medical reportand that the appellant had won over the prosecutrix by sheer passageDof time and the consequent delay in trial but that it could not cometo the aid of the appellant in view of nature of evidence availableagainst him – On appeal, held: The corroboration of theidentification in T.I.P is found in the medical report of the prosecutrixin conjunction with the semen found on the clothes of the prosecutrixand the appellant belonging to the Group B of the appellant – TheEvaginal smear and vaginal swab also confirmed the presence ofsemen – The facts and circumstances of the case, and the nature ofthe evidence available unequivocally established the appellant asthe perpetrator of sexual assault on the prosecutrix – The serologistreport was an expert opinion under s.45 of the Evidence Act andFwas, therefore, admissible in evidence without being marked anexhibit formally or having to be proved by oral evidence – It wouldbe a travesty of justice in the peculiar facts of the instant case if theappellant is acquitted merely because the prosecutrix turned hostileand failed to identify the appellant in the dock, in view of the otheroverwhelming evidence available – Hostile witness – Crime againstGWomen – Evidence Act, 1872 – s.45.

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Administration of criminal justice – Dispensation of justicein a criminal trial is a serious matter and cannot be allowed tobecome a mockery by simply allowing prime prosecution witnessesto turn hostile as a ground for acquittal – Penal Code, 1860 –Hs.376(2)(f).

Dismissing the appeal, the Court

HELD: 1. PW-1 and PW-2 have acknowledged having goneto the hospital on the day of occurrence. PW-9, the doctor hasconfirmed the sexual assault made on PW-2. The F.I.R. lodgedby PW-1 on the same day stood proved by PW-12 the police Sub-Inspector who stated that it was recorded by him exactly asdictated by the witness. He also proved having forwarded theprosecutrix for medical examination, the seizure of exhibits andsending the same to the FSL. The prosecutrix was also confrontedunder Section 145 of the Evidence Act with her statement underSection 161, Cr.P.C confirming the sexual assault on her aftershe turned hostile, contending that she had suffered injury in afall. The nature of injuries on her person are well nigh impossibledue to a fall. Any opinion of the doctor that such injury could becaused by a fall, does not establish the injury as due to fall, as afact but remains a mere expression of an opinion. [Para 6] [677-E-G]

2. The appellant was apprehended on suspicion along withanother. The T.I.P. was held without delay on 22.02.2004. TheT.I.P. report bears the thumb impression of PW-2 who wasaccompanied by her mother. The T.I.P. report has been dulyproved by PW-11. The appellant was identified by PW-2. Thereappears no substantive challenge to the T.I.P. Identification inthe dock, generally speaking, is to be given primacy overidentification in T.I.P, as the latter is considered to becorroborative evidence. But it cannot be generalized as a universalrule, that identification in T.I.P. cannot be looked into, in case offailure in dock identification. Much will depend on the facts of acase. If other corroborative evidence is available, identificationin T.I.P. will assume relevance and will have to be consideredcumulatively. [Para 7] [677-H; 678-A-C]

Prakash v. State of Karnataka (2014) 12 SCC 133 –

relied on.

3. The family of the prosecutrix was poor. She was one ofthe five siblings. The assault upon her took place while she hadtaken the buffalos for grazing. Her deposition was recorded nearlysix months after the occurrence. There is no infirmity in the A

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Areasoning of the High Court that it was sufficient time andopportunity for the accused to win over the prosecutrix and PW-1 by a settlement through coercion, intimidation, persuasion andundue influence. The mere fact that PW-2 may have turned hostile,is not relevant and does not efface the evidence with regard tothe sexual assault upon her and the identification of the appellantBas the perpetrator. [Para 8] [678-E-G]

State v. Sanjeev Nanda(2012)8 SCC 450 : [2012] 12SCR 881 – relied on.

4. A criminal trial is but a quest for truth. The nature ofCinquiry and evidence required will depend on the facts of eachcase. The presumption of innocence will have to be balancedwith the rights of the victim, and above all the societal interestfor preservation of the rule of law. Neither the accused nor thevictim can be permitted to subvert a criminal trial by statingfalsehood and resort to contrivances, so as to make it the theatreDof the absurd. Dispensation of justice in a criminal trial is a seriousmatter and cannot be allowed to become a mockery by simplyallowing prime prosecution witnesses to turn hostile as a groundfor acquittal. If the medical evidence had not confirmed sexualassault on the prosecutrix, the T.I.P. and identification thereinEwere doubtful, corroborative evidence was not available, entirelydifferent considerations may have arisen. [Para 9] [679-B-D]

Zahira Habibullah Sheikh v. State of Gujarat(2006) 3SCC 374 : [2006] 2 SCR 1081;Mahila Vinod Kumariv. State of Madhya Pradesh(2008) 8 SCC 34 : [2008]10 SCR 869 – relied on.F

5. It would indeed be a travesty of justice in the peculiarfacts of the present case if the appellant were to be acquittedmerely because the prosecutrix turned hostile and failed toidentify the appellant in the dock, in view of the otherGoverwhelming evidence available. [Para 10] [679-D-E]

Iqbal v. State of U.P.(2015) 6 SCC 623 : [2015] 6SCR 239 – relied on.

6. The corroboration of the identification in T.I.P is to befound in the medical report of the prosecutrix considered inHconjunction with the semen found on the clothes of the prosecutrix and the appellant belonging to the Group B of theappellant. The vaginal smear and vaginal swab have alsoconfirmed the presence of semen. A close analysis of the factsand circumstances of the case, and the nature of the evidenceavailable unequivocally establishes the appellant as theperpetrator of sexual assault on the prosecutrix. The serologistreport was an expert opinion under Section 45 of the EvidenceAct, 1872 and was therefore admissible in evidence without beingmarked an exhibit formally or having to be proved by oralevidence. [Para 11] [679-G-H; 680-A-B]

Nar Singh v. State of Haryana(2015) 1 SCC 496:[2014] 12 SCR 218 – relied on Sheikh Sintha Madhar v. State Rep. by Inspector ofPolice(2016) 11 SCC 265 : [2016] 2 SCR 936;TaraSingh v. The State, AIR 1951 SC 441 : [1951] SCR 729– referred to CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 913 of 2016

From the Judgment and Order dated 13.01.2016 of the High Courtof Gujarat at Ahmedabad in Criminal Appeal No. 1390 of 2006.

Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, BhaskarSingh, Ms. Deepa Gorasia, Ms. Khushboo V. Malkhan, Advs. for theAppellant.

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AMs. Jesal Wahi, Ms. Vishakha, Ms. Hemantika Wahi, Mamta Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by NAVIN SINHA, J. 1.Theappellant assails his conviction by theHigh Court under Section 376(2)(f) IPC, sentencing him to ten yearsBrigorous imprisonment, with fine of Rs.5,000/- along with a defaultstipulation, after reversing his acquittal ordered by the trial court.

2. The prosecutrix PW-2, aged 9 years, was sexually assaultedon 20.02.2004 by an unknown, tall and thin person wearing white clothes.PW-3 Jasiben, accompanying the prosecutrix was also a minor. SheCinformed PW-1 Ambaben, the mother of the prosecutrix. F.I.R. waslodged by PW-1 the same day. The medical examination of the prosecutrixwas also done the same day, by PW-9 Dr. Meghna Narendrabhai Mehta.Sexual assault on PW-2 stood established by rupture of the hymen, withfresh blood oozing, and injury of 1.5 cm to 2 cm extending upto the lowerDpart of the body. The appellant and one Dhirubhai Mulubhai Desai weretaken into custody on suspicion. Test Identification Parade (T.I.P.) wasconducted by PW-11, the Executive Magistrate, Dilipkumar KantilalRathod two days after the occurrence on 22.02.2004. The T.I.P. reportExhibit P-38, bears the thumb impression of PW-2 who was accompaniedby her mother. The appellant was identified by PW-2. Six months later,Eon 31.08.2004 while deposing during trial PW-2 and PW-3 denied thesexual assault and also declined dock identification. The trail courtconsequentially 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 PW-1 hadFbeen duly proved by PW-12 Police Sub-Inspector Bachubhai P. Kalsariya.The sexual assault on the prosecutrix stood established by the medicalreport, corroborated by the presence of semen on the clothes of theprosecutrix, and the appellant, proved by the FSL serological report asbelonging to Group B, which is the same as that of the appellant. TheGT.I.P. identification of the appellant stood proved by PW-11. The appellantwas held to have won over the prosecutrix by sheer passage of time andthe consequent delay in trial, but that it could not come to the aid of theappellant in view of the nature of evidence available against him.

4. Learned counsel for the appellant assailing the convictioncontended that the T.I.P. is only corroborative evidence, and cannot beH

put at par with substantive evidence for conviction. There is not an iotaof evidence with regard to the identity of the appellant being theperpetrator, and dock identification of the appellant had been declined.Reliance was placed on Sheikh Sintha Madhar vs. State Rep. byInspector of Police, (2016) 11 SCC 265 and Prakash vs. State ofKarnataka, (2014) 12 SCC, 133. It was lastly contended that theserological report was not formally exhibited and neither had the authorof the same been examined. No question was put to the appellant underSection 313 Cr.P.C. with regard to the serological report, with anopportunity of defence, relying on Tara Singh vs. The State, AIR 1951SC 441. The conviction was therefore unsustainable.

5. Learned counsel for the State opposing the appeal submittedthat the sexual assault on the prosecutrix stood established by the medicalreport. The appellant had been identified in the T.I.P. which wasconducted without delay. The presence of semen belonging to Group Bas of the appellant, on the clothes of the victim as also the appellant,were together sufficient to sustain the conviction. If PW-1 and 2 due topoverty, with sheer passage of time by six months before deposing incourt had been wonover, it will not detract from the offence committedby the appellant to warrant acquittal.

6. We have considered the submissions on behalf of the parties.The records have also been perused including necessary translationsinto English from vernacular language. PW-1 and PW-2 haveacknowledged having gone to the hospital on the day of occurrence.PW-9, the doctor has confirmed the sexual assault made on PW-2. TheF.I.R. lodged by PW-1 on the same day stands proved by PW-12 thepolice Sub-Inspector who stated that it was recorded by him exactly asdictated by the witness. He also proved having forwarded the prosecutrixfor medical examination, the seizure of exhibits and sending the same tothe FSL. The prosecutrix was also confronted under Section 145 of theEvidence Act with her statement under Section 161, Cr.P.C confirmingthe sexual assault on her after she turned hostile, contending that shehad suffered injury in a fall. The nature of injuries on her person arewell nigh impossible due to a fall. Any opinion of the doctor that suchinjury could be caused by a fall, does not establish the injury as due tofall, as a fact but remains a mere expression of an opinion.

7. The appellant was apprehended on suspicion along withanother. The T.I.P. was held without delay on 22.02.2004. Exhibit P-38, AB

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Athe T.I.P. report bears the thumb impression of PW-2 who wasaccompanied by her mother. The T.I.P. report has been duly proved byPW-11. The appellant was identified by PW-2. There appears nosubstantive challenge to the T.I.P. Identification in the dock, generallyspeaking, is to be given primacy over identification in T.I.P, as the latteris considered to be corroborative evidence. But it cannot be generalizedBas a universal rule, that identification in T.I.P. cannot be looked into, incase of failure in dock identification. Much will depend on the facts ofa case. If other corroborative evidence is available, identification in T.I.P.will assume relevance and will have to be considered cumulatively. InPrakash vs. State of Karnataka, (2014) 12 SCC 133 it was observedCas follows :

“16…. Even so, the failure of a victim or a witness to identify asuspect is not always fatal to the case of the prosecution. InVisveswaran v. State it was held:

11. … The identification of the accused either in a testDidentification parade or in court is not a sine qua non in everycase if from the circumstances the guilt is otherwise established.Many a time, crimes are committed under the cover of darknesswhen none is able to identify the accused. The commission ofa crime can be proved also by circumstantial evidence.”

E8. The family of the prosecutrix was poor. She was one of thefive siblings. The assault upon her took place while she had taken thebuffalos for grazing. Her deposition was recorded nearly six monthsafter the occurrence. We find no infirmity in the reasoning of the HighCourt that it was sufficient time and opportunity for the accused to winFover the prosecutrix and PW-1 by a settlement through coercion,intimidation, persuasion and undue influence. The mere fact that PW-2may have turned hostile, is not relevant and does not efface the evidencewith regard to the sexual assault upon her and the identification of theappellant as the perpetrator. The observations with regard to hostilewitnesses and the duty of the court in State vs. Sanjeev Nanda, 2012G(8) SCC 450 are also considered relevant in the present context:

“101…..if a witness becomes hostile to subvert the judicialprocess, the court shall not stand as a mute spectator and everyeffort should be made to bring home the truth. Criminal justicesystem cannot be overturned by those gullible witnesses who H

act under pressure, inducement or intimidation. Further, Section193 IPC imposes punishment for giving false evidence but isseldom invoked.”

9. A criminal trial is but a quest for truth. The nature of inquiryand evidence required will depend on the facts of each case. Thepresumption of innocence will have to be balanced with the rights of thevictim, and above all the societal interest for preservation of the rule oflaw. Neither the accused nor the victim can be permitted to subvert acriminal trial by stating falsehood and resort to contrivances, so as tomake it the theatre of the absurd. Dispensation of justice in a criminaltrial is a serious matter and cannot be allowed to become a mockery bysimply allowing prime prosecution witnesses to turn hostile as a groundfor acquittal, as observed in Zahira Habibullah Sheikh vs. State ofGujarat, (2006) 3 SCC 374 and Mahila Vinod Kumari vs. State ofMadhya Pradesh, (2008) 8 SCC 34. If the medical evidence had notconfirmed sexual assault on the prosecutrix, the T.I.P. and identificationtherein were doubtful, corroborative evidence was not available, entirelydifferent considerations may have arisen.

10. It would indeed be a travesty of justice in the peculiar facts ofthe present case if the appellant were to be acquitted merely becausethe prosecutrix turned hostile and failed to identify the appellant in thedock, in view of the other overwhelming evidence available. In Iqbalvs. State of U.P., 2015 (6) SCC 623, it was observed as follows:

“15. Evidence of identification of the miscreants in the testidentification parade is not a substantive evidence. Convictioncannot be based solely on the identity of the dacoits by thewitnesses in the test identification parade. The prosecution hasto adduce substantive evidence by establishing incriminatingevidence connecting the accused with the crime, like recoveryof articles which are the subject matter of dacoity and the allegedweapons used in the commission of the offence.”

11. The corroboration of the identification in T.I.P is to be foundin the medical report of the prosecutrix considered in conjunction withthe semen found on the clothes of the prosecutrix and the appellantbelonging to the Group B of the appellant. The vaginal smear and vaginalswab have also confirmed the presence of semen. A close analysis ofthe facts and circumstances of the case, and the nature of the evidence A

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Aavailable unequivocally establishes the appellant as the perpetrator ofsexual assault on the prosecutrix. The serologist report was an expertopinion under Section 45 of the Evidence Act,1872 and was thereforeadmissible in evidence without being marked an exhibit formally or havingto be proved by oral evidence.

B12. The contention on behalf of the appellant that the serologicalreport was not put to him by the court under Section 313 Cr. P.C. andtherefore, he has been prejudiced in his defence, has been raised for thefirst time before this court. The serological report being available, it wasa failure on the part of the trial court to bring it to the attention of theappellant. The prosecution cannot be said to be guilty of not adducing orCsuppressing any evidence. In view of the nature of the evidence availablein the present case, as discussed hereinbefore, we are of the opinionthat no prejudice can be said to have been caused to the appellant forthat reason, as held in Nar Singh vs. State of Haryana, (2015) 1 SCC496:

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“32….When there is omission to put material evidence to theaccused in the course of examination under Section 313 CrPC,the prosecution is not guilty of not adducing or suppressing suchevidence; it is only the failure on the part of the learned trialcourt. The victim of the offence or the accused should not sufferEfor laches or omission of the court. Criminal justice is not one-sided. It has many facets and we have to draw a balance betweenconflicting rights and duties.

33. Coming to the facts of this case, the FSL report (Ext. P-12)was relied upon both by the trial court as well as by the HighFCourt. The objection as to the defective Section 313 CrPCstatement has not been raised in the trial court or in the HighCourt and the omission to put the question under Section 313CrPC, and prejudice caused to the accused is raised before thisCourt for the first time. It was brought to our notice that theappellant is in custody for about eight years. While the right ofGthe accused to speedy trial is a valuable one, the Court has tosubserve the interest of justice keeping in view the right of thevictim’s family and society at large.”

13. The present was an appropriate case to direct the prosecutionof the prosecutrix under Section 344 Cr.P.C alike Mahila Vinod Kumari H

HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT[NAVIN SINHA, J.]

(supra) for tendering false evidence. But considering that the prosecutrixwas barely 9 years old on the date of occurrence, that the occurrencehad taken place 14 long years ago, she may have since been marriedand settled to a new life, all of which may possibly be jeopardised, werefrain from directing her prosecution, which we were otherwise inclinedto order.

14. The appeal is dismissed.

Devika Gujral Appeal dismissed.

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