Rape- Accused Cannot Be Acquitted Merely Because Victim Turned Hostile And Failed To Identify Him In The Dock: SC

“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.”

The Supreme Court recently affirmed conviction of a rape accused even though during the trial the rape victim had turned hostile and failed to identify the accused.

The bench comprising Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph fall short of convicting the prosecutrix for giving false evidence considering the circumstances like her age at the time of incident and other factors.

Background

Hemudan Nanbha Gadhvi was tried for sexually assaulting a 9 year old girl. Though she identified the accused during the Test Identification Parade, she turned hostile during trial and denied the sexual assault and also declined dock identification. The High court reversed the findings, and convicted the accused holding that he 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 in view of overwhelming evidence available against him.

TIP Can Be Looked Into Even In Case Of Failure Of Dock Identification

In his appeal before the Apex court (Hemudan Nanbha Gadhvi vs. State of Gujarat), the bench observed that it cannot be generalized that identification in T.I.P. cannot be looked into, in case of failure in dock identification. It said: “That 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.”

Victim Turning Hostile Does Not Efface Other Evidence

Agreeing with the High court view as regards victim turning hostile, the bench said: “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 PW-1 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.”

Neither The Accused Nor The Victim Can Be Permitted To Subvert A Criminal Trial

Referring to the evidence on record, the bench said that it unequivocally establishes the accused as the perpetrator of sexual assault on the prosecutrix. The court also said that it would be travesty of justice if the accused were to be acquitted merely because the prosecutrix turned hostile and failed to identify him in the dock, in view of the other overwhelming evidence available. The bench added: “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.”

Refrains From Prosecuting The Prosecutrix Who Turned Hostile

Finally, the bench made these comments on aspect of the victim turning hostile. It said: “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.”