Penal Code, 1860: s.376(2)(f) – Sexual assault on minor – Accused-appellant was identified by prosecutrix in test identification parade – However, six months later, while deposing during trial, the prosecutrix and the other minor eye-witness denied the sexual assault and also declined dock identification – Acquittal by trial court – High Court reversed the order of acquittal holding that the sexual assault on the prosecutrix was established by medical report and that the appellant had 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 nature of evidence available against him – On appeal, held: The corroboration of the identification in T.I.P is found in the medical report of the prosecutrix 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 also confirmed the presence of semen – The facts and circumstances of the case, and the nature of the evidence available unequivocally established the appellant as the perpetrator of sexual assault on the prosecutrix – The serologist report was an expert opinion under s.45 of the Evidence Act and was, therefore, admissible in evidence without being marked an exhibit formally or having to be proved by oral evidence – It would be a travesty of justice in the peculiar facts of the instant case if the appellant is acquitted merely because the prosecutrix turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available – Hostile witness – Crime against Women – Evidence Act, 1872 – s.45.
Administration of criminal justice – 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 – Penal Code, 1860 – s.376(2)(f).
Dismissing the appeal, the Court
HELD: 1. PW-1 and PW-2 have acknowledged having gone to the hospital on the day of occurrence. PW-9, the doctor has confirmed the sexual assault made on PW-2. The F.I.R. lodged by PW-1 on the same day stood proved by PW-12 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. [Para 6] [677E-G]
2. The appellant was apprehended on suspicion along with another. The T.I.P. was held without delay on 22.02.2004. The T.I.P. report bears the thumb impression of PW-2 who was accompanied by her mother. The T.I.P. report has been duly proved by PW-11. The appellant was identified by PW-2. 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 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. [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 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. There is 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 PW-2 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. [Para 8] [678-E-G]
State v. Sanjeev Nanda (2012) 8 SCC 450 : [2012] 12 SCR 881 – relied on.
4. 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 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. 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. [Para 9] [679-B-D]
Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374 : [2006] 2 SCR 1081; Mahila Vinod Kumari v. State of Madhya Pradesh (2008) 8 SCC 34 : [2008]
10 SCR 869 – relied on.
5. 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. [Para 10] [679-D-E] Iqbal v. State of U.P. (2015) 6 SCC 623 : [2015] 6 SCR 239 – relied on.
6. 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. [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 of Police (2016) 11 SCC 265 : [2016] 2 SCR 936; Tara Singh v. The State, AIR 1951 SC 441 : [1951] SCR 729 – referred to
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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