LexSELVAMANI versus THE STATE REP. BY THE INSPECTOR OF POLICE
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* Author [2024] 6 S.C.R. 653 : 2024 INSC 393 Selvamani v. The State Rep. By The Inspector of Police (Criminal Appeal No. 906 of 2023) 08 May 2024 [B.R. Gavai* and Sandeep Mehta, JJ.] Issue for Consideration Appellant was one of the five accused persons who were found guilty of committing the offence of gang rape and was convicted under Section 376(g) and 506(1) of Penal Code, 1860 and Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act by the trial court. Whether High Court was justified in dismissing the appeal filed by the Appellant against the conviction when prosecutrix and witnesses turned hostile at the cross examination stage. Headnotes Conviction upheld even when prosecutrix and other witnesses turned hostile – Correctness of: Held: In the present case, the prosecutrix as well as her mother and her aunt have fully supported the prosecution case – FIR came to be lodged immediately on the very same day – The statement of the prosecutrix under Section 164 CrPC was also recorded before the Judicial Magistrate, who has also deposed about the prosecutrix giving the statement and narrating the incident – The medical expert who had examined the victim has clearly stated that prosecutrix was having injuries on her person – No doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case – In the present case, it appears that, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in- chief which fully incriminates the accused – However, when the evidence of the victim as well as her mother (PW-2) and aunt (PW- 3) is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), there is sufficient corroboration to the version given by the prosecutrix 654 [2024] 6 S.C.R. Digital Supreme Court Reports in her examination-in-chief – Reliance is placed on the judgment in the case of Vinod Kumar v. State of Punjab (2015) 3 SCC 220, and Rajesh Yadav and Another v. State of Uttar Pradesh (2022) 12 SCC 200. [Paras 5, 6, 7, 8, 11, 12 and 13] Evidence of hostile witness – Reliance upon: Held: A 3 judge bench of this Court in the case of Khujji @ Surendra Tiwari v. State of Madhya Pradesh (1991) 3 SCC 627, relying on the judgments of this Court in the cases of Bhagwan Singh v. State of Haryana (1976) 1 SCC 389, Sri Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, Syad Akbar v. State of Karnataka (1980) 1 SCC 30, has held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him – The same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof – The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence (C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567) – The case of Rai Sandeep alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21 relied upon by the learned counsel for Appellant can be distinguished, inasmuch as in the said case except a minor abrasion on the right side of the neck below jaw, there were no other injuries on the private part of the prosecutrix, although it was allegedly a forcible gang rape – As such, the said judgment would not be applicable in the present case. [Paras 9, 10 and 14] Case Law Cited Khujji @ Surendra Tiwari v. State of Madhya Pradesh [1991] 3 SCR 1 : (1991) 3 SCC 627; Bhagwan Singh v. State of Haryana [1976] 2 SCR 921 : (1976) 1 SCC 389; Sri Rabindra Kumar Dey v. State of Orissa [1977] 1 SCR 439 : (1976) 4 SCC 233; Syad Akbar v. State of Karnataka [1980] 1 SCR 95 : (1980) 1 SCC 30; C. Muniappan and Others v. State of Tamil Nadu [2010] 10 SCR 262 : (2010) 9 SCC 567; Vinod Kumar v. State of Punjab [2015] 1 SCR 504 : (2015) 3 SCC 220; Rajesh Yadav and Another v. State of Uttar Pradesh [2022] 16 SCR 967 : (2022) 12 SCC 200 – relied on. Rai Sandeep alias Deepu v. State (NCT of Delhi) [2012] 6 SCR 1153 : (2012) 8 SCC 21 – distinguished. [2024] 6 S.C.R. 655 Selvamani v. The State Rep. By The Inspector of Police List of Acts
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