HEMUDAN NANBHA GADHVI versus STATE OF GUJARAT

Citation: [2018] 12 S.C.R. 672 · Decided: 28-09-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 12 S.C.R.
HEMUDAN NANBHA GADHVI
v.
STATE OF GUJARAT
(Criminal Appeal No. 913 of 2016)
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 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).
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[2018] 12 S.C.R. 672
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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 Sub-
Inspector 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]  [677-
E-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
HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT
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SUPREME COURT REPORTS
[2018] 12 S.C.R.

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