HEMUDAN NANBHA GADHVIversusSTATE OF GUJARAT

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


A                       HEMUDAN NANBHA GADHVI
                                         v.
                              STATE OF GUJARAT
                        (Criminal Appeal No. 913 of 2016)
B                             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,
C
      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
D     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
E
      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
F     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
G     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 –
H     s.376(2)(f).
                                          672
    HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT                           673


      Dismissing the appeal, the Court                                  A
       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             B
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        C
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]                                                                    D
       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            E
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      F
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.                                                        G
       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
                                                                        H
674            SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A     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
B
      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
C     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
D     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
E     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]
F           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
G     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
H     conjunction with the semen found on the clothes of the
    HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT                          675


prosecutrix and the appellant belonging to the Group B of the          A
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
                                                                       B
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                                    C

      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
                                                                       D
                      Case Law Reference
[2016] 2 SCR 936                  referred to          Para 4
[1951] SCR 729                    referred to          Para 4
(2014) 12 SCC 133                 relied on            Para 7
                                                                       E
[2012] 12 SCR 881                 relied on            Para 8
[2006] 2 SCR 1081                 relied on            Para 9
[2008] 10 SCR 869                 relied on            Para 9
[2015] 6 SCR 239                  relied on            Para 10         F
[2014] 12 SCR 218                 relied on            Para 12


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 913 of 2016
                                                                       G
      From the Judgment and Order dated 13.01.2016 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 1390 of 2006.
      Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Bhaskar
Singh, Ms. Deepa Gorasia, Ms. Khushboo V. Malkhan, Advs. for the
Appellant.                                                             H
676            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           Ms. 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 the
      High Court under Section 376(2)(f) IPC, sentencing him to ten years
B     rigorous imprisonment, with fine of Rs.5,000/- along with a default
      stipulation, after reversing his acquittal ordered by the trial court.
             2. The prosecutrix PW-2, aged 9 years, was sexually assaulted
      on 20.02.2004 by an unknown, tall and thin person wearing white clothes.
      PW-3 Jasiben, accompanying the prosecutrix was also a minor. She
C     informed PW-1 Ambaben, the mother of the prosecutrix. F.I.R. was
      lodged by PW-1 the same day. The medical examination of the prosecutrix
      was also done the same day, by PW-9 Dr. Meghna Narendrabhai Mehta.
      Sexual assault on PW-2 stood established by rupture of the hymen, with
      fresh blood oozing, and injury of 1.5 cm to 2 cm extending upto the lower
D     part of the body. The appellant and one Dhirubhai Mulubhai Desai were
      taken into custody on suspicion. Test Identification Parade (T.I.P.) was
      conducted by PW-11, the Executive Magistrate, Dilipkumar Kantilal
      Rathod two days after the occurrence on 22.02.2004. The T.I.P. report
      Exhibit P-38, bears the thumb impression of PW-2 who was accompanied
      by her mother. The appellant was identified by PW-2. Six months later,
E     on 31.08.2004 while deposing during trial PW-2 and PW-3 denied the
      sexual assault and also declined dock identification. The trail court
      consequentially 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 had
F     been duly proved by PW-12 Police Sub-Inspector Bachubhai P. Kalsariya.
      The sexual assault on the prosecutrix stood established by the medical
      report, corroborated by the presence of semen on the clothes of the
      prosecutrix, and the appellant, proved by the FSL serological report as
      belonging to Group B, which is the same as that of the appellant. The
G     T.I.P. identification of the appellant stood proved by PW-11. The appellant
      was held to have 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 the nature of evidence available against him.
            4. Learned counsel for the appellant assailing the conviction
      contended that the T.I.P. is only corroborative evidence, and cannot be
H
    HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT                                 677
                [NAVIN SINHA, J.]

put at par with substantive evidence for conviction. There is not an iota     A
of evidence with regard to the identity of the appellant being the
perpetrator, and dock identification of the appellant had been declined.
Reliance was placed on Sheikh Sintha Madhar vs. State Rep. by
Inspector of Police, (2016) 11 SCC 265 and Prakash vs. State of
Karnataka, (2014) 12 SCC, 133. It was lastly contended that the
                                                                              B
serological report was not formally exhibited and neither had the author
of the same been examined. No question was put to the appellant under
Section 313 Cr.P.C. with regard to the serological report, with an
opportunity of defence, relying on Tara Singh vs. The State, AIR 1951
SC 441. The conviction was therefore unsustainable.
       5. Learned counsel for the State opposing the appeal submitted         C
that the sexual assault on the prosecutrix stood established by the medical
report. The appellant had been identified in the T.I.P. which was
conducted without delay. The presence of semen belonging to Group B
as 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 to      D
poverty, with sheer passage of time by six months before deposing in
court had been wonover, it will not detract from the offence committed
by the appellant to warrant acquittal.
        6. We have considered the submissions on behalf of the parties.
The records have also been perused including necessary translations           E
into English from vernacular language. 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 stands 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      F
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       G
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.
      7. The appellant was apprehended on suspicion along with
another. The T.I.P. was held without delay on 22.02.2004. Exhibit P-38,       H
678             SUPREME COURT REPORTS                           [2018] 12 S.C.R.


A     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
B
      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. In
      Prakash vs. State of Karnataka, (2014) 12 SCC 133 it was observed
C     as follows :
              “16…. Even so, the failure of a victim or a witness to identify a
              suspect is not always fatal to the case of the prosecution. In
              Visveswaran v. State it was held:
                11. … The identification of the accused either in a test
D               identification parade or in court is not a sine qua non in every
                case if from the circumstances the guilt is otherwise established.
                Many a time, crimes are committed under the cover of darkness
                when none is able to identify the accused. The commission of
                a crime can be proved also by circumstantial evidence.”
E            8. 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
F     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. The observations with regard to hostile
      witnesses and the duty of the court in State vs. Sanjeev Nanda, 2012
G     (8) SCC 450 are also considered relevant in the present context:
              “101…..if a witness becomes hostile to subvert the judicial
              process, the court shall not stand as a mute spectator and every
              effort should be made to bring home the truth. Criminal justice
              system cannot be overturned by those gullible witnesses who
H
    HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT                                  679
                [NAVIN SINHA, J.]

        act under pressure, inducement or intimidation. Further, Section       A
        193 IPC imposes punishment for giving false evidence but is
        seldom invoked.”
        9. 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       B
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        C
for acquittal, as observed in Zahira Habibullah Sheikh vs. State of
Gujarat, (2006) 3 SCC 374 and Mahila Vinod Kumari vs. State of
Madhya Pradesh, (2008) 8 SCC 34. 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      D
different considerations may have arisen.
       10. 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. In Iqbal           E
vs. State of U.P., 2015 (6) SCC 623, it was observed as follows:
        “15. Evidence of identification of the miscreants in the test
        identification parade is not a substantive evidence. Conviction
        cannot be based solely on the identity of the dacoits by the
        witnesses in the test identification parade. The prosecution has       F
        to adduce substantive evidence by establishing incriminating
        evidence connecting the accused with the crime, like recovery
        of articles which are the subject matter of dacoity and the alleged
        weapons used in the commission of the offence.”
       11. The corroboration of the identification in T.I.P is to be found     G
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
                                                                               H
680             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     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.
B             12. The contention on behalf of the appellant that the serological
      report was not put to him by the court under Section 313 Cr. P.C. and
      therefore, he has been prejudiced in his defence, has been raised for the
      first time before this court. The serological report being available, it was
      a failure on the part of the trial court to bring it to the attention of the
      appellant. The prosecution cannot be said to be guilty of not adducing or
C     suppressing any evidence. In view of the nature of the evidence available
      in the present case, as discussed hereinbefore, we are of the opinion
      that no prejudice can be said to have been caused to the appellant for
      that reason, as held in Nar Singh vs. State of Haryana, (2015) 1 SCC
      496:
D             “32….When there is omission to put material evidence to the
              accused in the course of examination under Section 313 CrPC,
              the prosecution is not guilty of not adducing or suppressing such
              evidence; it is only the failure on the part of the learned trial
              court. The victim of the offence or the accused should not suffer
E             for laches or omission of the court. Criminal justice is not one-
              sided. It has many facets and we have to draw a balance between
              conflicting 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 High
F             Court. The objection as to the defective Section 313 CrPC
              statement has not been raised in the trial court or in the High
              Court and the omission to put the question under Section 313
              CrPC, and prejudice caused to the accused is raised before this
              Court for the first time. It was brought to our notice that the
              appellant is in custody for about eight years. While the right of
G             the accused to speedy trial is a valuable one, the Court has to
              subserve the interest of justice keeping in view the right of the
              victim’s family and society at large.”
             13. The present was an appropriate case to direct the prosecution
      of the prosecutrix under Section 344 Cr.P.C alike Mahila Vinod Kumari
H
     HEMUDAN NANBHA GADHVI v. STATE OF GUJARAT                                 681
                 [NAVIN SINHA, J.]

(supra) for tendering false evidence. But considering that the prosecutrix     A
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.
                                                                               B
       14. The appeal is dismissed.


Devika Gujral                                              Appeal dismissed.

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