Supreme Court Upholds Conviction in Sexual Assault Case Despite Hostile Witness: Hemudan Nanbha Gadhvi vs. State of Gujarat (28 September 2018)

LEGAL ISSUE: Whether a conviction for sexual assault can be upheld when the victim turns hostile during trial, but other evidence corroborates the assault.

CASE TYPE: Criminal Law – Sexual Assault

Case Name: Hemudan Nanbha Gadhvi vs. State of Gujarat

Judgment Date: 28 September 2018

Introduction

Date of the Judgment: 28 September 2018

Citation: Not Available

Judges: Ranjan Gogoi, Navin Sinha, K.M. Joseph

Can a conviction for sexual assault be upheld when the victim, a minor, turns hostile during the trial? The Supreme Court of India addressed this critical question in the case of Hemudan Nanbha Gadhvi vs. State of Gujarat. The court examined whether the testimony of a hostile witness could negate other substantial evidence, such as medical reports and forensic findings, that pointed towards the guilt of the accused.

The Supreme Court bench comprised Justices Ranjan Gogoi, Navin Sinha, and K.M. Joseph. The judgment was authored by Justice Navin Sinha.

Case Background

On 20th February 2004, a 9-year-old girl (referred to as PW-2) was sexually assaulted by an unknown individual described as tall and thin, wearing white clothing. The incident occurred while the girl was grazing buffaloes, accompanied by another minor, Jasiben (PW-3). Jasiben informed the victim’s mother, Ambaben (PW-1), who then filed a First Information Report (F.I.R.) on the same day. The medical examination of the victim, conducted by Dr. Meghna Narendrabhai Mehta (PW-9), confirmed the sexual assault. The victim’s hymen was ruptured, with fresh blood, and a 1.5 to 2 cm injury extending to the lower part of her body was found.

Based on suspicion, Hemudan Nanbha Gadhvi (the appellant) and one Dhirubhai Mulubhai Desai were taken into custody. A Test Identification Parade (T.I.P.) was conducted on 22nd February 2004, where the victim identified the appellant. However, during the trial six months later on 31st August 2004, both the victim (PW-2) and Jasiben (PW-3) denied the sexual assault and refused to identify the appellant in court. Consequently, the trial court acquitted the appellant.

Timeline

Course of Proceedings

The trial court acquitted the appellant after the victim and another witness denied the sexual assault and refused to identify the appellant in court. The State appealed this decision to the High Court. The High Court reversed the trial court’s acquittal, convicting the appellant under Section 376(2)(f) of the Indian Penal Code (IPC). The High Court relied on the initial F.I.R., the medical report confirming the sexual assault, the presence of semen on the victim’s clothes matching the appellant’s blood group, and the victim’s identification of the appellant during the T.I.P. The High Court concluded that the victim and her mother had been influenced by the appellant due to the delay in the trial.

Legal Framework

The case primarily revolves around Section 376(2)(f) of the Indian Penal Code (IPC), which deals with the punishment for rape. The section states:

“376. Punishment for rape.—(1) … (2) Whoever commits rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years. Explanation 1.—… Explanation 2.—… (f) is a person in a position of authority or a public servant and commits rape on a woman in his custody or under his charge.”

Additionally, the court considered the following sections of the Indian Evidence Act, 1872:

• Section 45: Expert opinions.
• Section 145: Cross-examination as to previous statements in writing.

The court also referred to Section 161 of the Code of Criminal Procedure (Cr.P.C.) regarding the examination of witnesses by the police.

Arguments

Appellant’s Arguments:

• The T.I.P. is merely corroborative evidence and cannot be considered substantive evidence for conviction.
• There is no substantial evidence to prove the appellant was the perpetrator, especially since the victim declined dock identification.
• The serological report was not formally exhibited, and the author of the report was not examined.
• No question regarding the serological report was put to the appellant under Section 313 of the Code of Criminal Procedure (Cr.P.C.), denying him the opportunity to defend himself.
• 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, to argue that T.I.P. is not substantive evidence.
• Reliance was placed on Tara Singh vs. The State, AIR 1951 SC 441, to argue that the appellant was not given the opportunity to defend himself regarding the serological report.

State’s Arguments:

• The sexual assault was established by the medical report.
• The appellant was identified in the T.I.P., which was conducted promptly.
• The presence of semen on the victim’s clothes, matching the appellant’s blood group, is sufficient to sustain the conviction.
• The victim and her mother may have been won over due to poverty and the passage of time, but this should not negate the offense committed by the appellant.

Innovativeness of the argument: The appellant’s argument regarding the non-exhibition of the serological report and the lack of questioning under Section 313 Cr.P.C. was innovative, as it highlighted procedural lapses that could potentially prejudice the defense.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the Test Identification Parade (T.I.P.) can be considered as substantive evidence for conviction.
2. Whether the conviction can be sustained when the prosecutrix turns hostile during the trial and fails to identify the accused in the dock.
3. Whether the serological report can be considered as evidence without being formally exhibited and its author being examined.
4. Whether the failure to question the accused about the serological report under Section 313 Cr.P.C. prejudiced his defense.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Prakash vs. State of Karnataka, (2014) 12 SCC 133: The Supreme Court of India, discussed the evidentiary value of T.I.P. and held that failure of a witness to identify a suspect is not always fatal to the prosecution’s case, especially if other circumstances establish guilt.
• Visveswaran v. State: The Court held that identification of the accused in T.I.P. or in court is not a sine qua non if guilt is established by other circumstances.
• State vs. Sanjeev Nanda, 2012 (8) SCC 450: The Supreme Court of India, discussed the duty of the court when a witness turns hostile, emphasizing that the court should strive to bring out the truth and not allow the criminal justice system to be subverted by hostile witnesses.
• Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374: The Supreme Court of India, emphasized that criminal trials should not be allowed to become a mockery by allowing prime witnesses to turn hostile.
• Mahila Vinod Kumari vs. State of Madhya Pradesh, (2008) 8 SCC 34: The Supreme Court of India, reiterated the principle that criminal trials should not be subverted by hostile witnesses.
• Iqbal vs. State of U.P., 2015 (6) SCC 623: The Supreme Court of India, held that identification in T.I.P. is not substantive evidence, and conviction cannot be based solely on it.
• Nar Singh vs. State of Haryana, (2015) 1 SCC 496: The Supreme Court of India, held that the omission to put material evidence to the accused under Section 313 Cr.P.C. is a lapse of the trial court, not the prosecution, and the accused should not suffer for such laches.
• Sheikh Sintha Madhar vs. State Rep. by Inspector of Police, (2016) 11 SCC 265: The Supreme Court of India, discussed the evidentiary value of T.I.P.
• Tara Singh vs. The State, AIR 1951 SC 441: The Supreme Court of India, discussed the importance of providing the accused with an opportunity to defend themselves.

Legal Provisions:

• Section 376(2)(f), Indian Penal Code (IPC): Defines the offense of rape and its punishment.
• Section 45, Indian Evidence Act, 1872: Deals with expert opinions.
• Section 145, Indian Evidence Act, 1872: Deals with cross-examination as to previous statements in writing.
• Section 161, Code of Criminal Procedure (Cr.P.C.): Deals with the examination of witnesses by the police.
• Section 313, Code of Criminal Procedure (Cr.P.C.): Deals with the examination of the accused.
• Section 344, Code of Criminal Procedure (Cr.P.C.): Deals with the procedure for prosecution of witnesses for giving false evidence.

Judgment

The Supreme Court dismissed the appeal, upholding the conviction of the appellant.

How each authority was viewed by the Court:

• Prakash vs. State of Karnataka, (2014) 12 SCC 133*: The Court distinguished this case by stating that while T.I.P. is generally corroborative, it can be considered relevant when other corroborative evidence is available.
• Visveswaran v. State*: The Court relied on this case to emphasize that identification in a T.I.P. or in court is not always necessary if other circumstances establish guilt.
• State vs. Sanjeev Nanda, 2012 (8) SCC 450*: The Court used this case to highlight its duty to ensure justice is not subverted by hostile witnesses.
• Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374*: The Court used this case to support its view that criminal trials should not be allowed to become a mockery by allowing prime witnesses to turn hostile.
• Mahila Vinod Kumari vs. State of Madhya Pradesh, (2008) 8 SCC 34*: The Court reiterated the principle that criminal trials should not be subverted by hostile witnesses.
• Iqbal vs. State of U.P., 2015 (6) SCC 623*: The Court distinguished this case by stating that while T.I.P. is not substantive evidence, the corroborative evidence in this case was sufficient to uphold the conviction.
• Nar Singh vs. State of Haryana, (2015) 1 SCC 496*: The Court relied on this case to hold that the omission to question under Section 313 Cr.P.C. was a lapse of the trial court and not the prosecution, and no prejudice was caused to the appellant.
• Sheikh Sintha Madhar vs. State Rep. by Inspector of Police, (2016) 11 SCC 265*: The Court considered this case in relation to the evidentiary value of T.I.P.
• Tara Singh vs. The State, AIR 1951 SC 441*: The Court considered this case in relation to the importance of providing the accused with an opportunity to defend themselves.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The medical evidence unequivocally established the sexual assault on the victim.
• The T.I.P. was conducted without delay, and the victim had identified the appellant.
• The forensic evidence, specifically the serological report, corroborated the victim’s identification by linking the semen found on her clothes to the appellant’s blood group.
• The Court recognized that the victim and her family were poor and vulnerable, and that the delay in the trial had likely provided an opportunity for the appellant to influence them.
• The Court emphasized that the criminal justice system should not be subverted by hostile witnesses, especially in cases where other evidence is strong.
• The Court held that procedural lapses, such as the failure to question the accused under Section 313 Cr.P.C., should not prejudice the case when other evidence is overwhelming.

The Court’s reasoning was a blend of factual analysis and legal principles. The factual aspects of the case, such as the medical and forensic evidence, played a significant role in establishing the guilt of the accused. The legal principles, such as the role of a hostile witness and the admissibility of expert opinions, were also considered to ensure that justice was served.

Logical Reasoning:

The Court considered alternative interpretations, such as the possibility that the victim’s injuries were due to a fall, but rejected them based on the medical evidence. The Court also considered the argument that the serological report was inadmissible but rejected it based on Section 45 of the Evidence Act.

The Court concluded that the overwhelming evidence established the appellant as the perpetrator of the sexual assault. The Court emphasized that the criminal justice system should not be subverted by hostile witnesses, and that procedural lapses should not prejudice the case when other evidence is strong.

The Court’s decision was based on the following reasons:

• The medical evidence unequivocally established the sexual assault.
• The T.I.P. was conducted without delay, and the victim had identified the appellant.
• The forensic evidence corroborated the victim’s identification.
• The victim’s hostility was likely due to the passage of time and undue influence.
• The serological report was admissible as an expert opinion.
• The procedural lapse under Section 313 Cr.P.C. did not prejudice the appellant.

The Court quoted the following from the judgment:

“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.”

“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 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.”

There were no dissenting opinions in this case. The judgment was delivered by a three-judge bench, with Justice Navin Sinha authoring the opinion.

The Supreme Court’s reasoning was based on a careful analysis of the facts, the medical and forensic evidence, and the legal principles involved. The Court’s decision highlights the importance of ensuring that the criminal justice system is not subverted by hostile witnesses and that procedural lapses do not undermine the pursuit of justice.

Key Takeaways

• A conviction for sexual assault can be upheld even if the victim turns hostile during the trial, provided there is other strong corroborative evidence.
• The Test Identification Parade (T.I.P.) is generally corroborative evidence, but it can be considered substantive if other evidence supports it.
• Medical and forensic evidence, such as serological reports, are crucial in establishing the guilt of the accused.
• The criminal justice system should not be subverted by hostile witnesses, especially when other evidence is strong.
• Procedural lapses by the trial court should not prejudice a case if the evidence is overwhelmingly against the accused.

The judgment reinforces the importance of a holistic approach to criminal trials, where all available evidence is considered to ensure that justice is served. It also highlights the vulnerability of victims and the need to protect them from undue influence.

Directions

The Supreme Court did not give any specific directions in this case, except for dismissing the appeal. The Court did observe that the present was an appropriate case to direct the prosecution of the prosecutrix under Section 344 Cr.P.C., but refrained from doing so.

Impact

The Supreme Court’s judgment in Hemudan Nanbha Gadhvi vs. State of Gujarat has several significant impacts on legal precedent:

• Reinforcement of Corroborative Evidence: The judgment reinforces the importance of corroborative evidence in sexual assault cases. It clarifies that while the testimony of the victim is crucial, it is not the sole determinant of guilt. Other evidence, such as medical reports, forensic findings, and T.I.P., can be equally important.
• Limitations of Hostile Witness Testimony: The judgment clarifies that the testimony of a hostile witness does not automatically negate the prosecution’s case. If there is strong corroborative evidence, the court can still uphold a conviction. This protects the integrity of the criminal justice system and prevents criminals from escaping justice by intimidating or influencing witnesses.
• Admissibility of Expert Opinions: The judgment clarifies that expert opinions, such as serological reports, are admissible as evidence under Section 45 of the Indian Evidence Act, 1872, without needing formal exhibition or oral proof. This simplifies the evidentiary process and ensures that scientific evidence is given due weight.
• Procedural Lapses: The judgment clarifies that procedural lapses by the trial court, such as the omission to question the accused under Section 313 Cr.P.C., should not prejudice the case if there is overwhelming evidence against the accused. This ensures that justice is not sacrificed on the altar of technicalities.
• Protection of Vulnerable Witnesses: The judgment underscores the vulnerability of victims, especially minors and those from disadvantaged backgrounds. It recognizes that these witnesses may be susceptible to intimidation or influence and that the court must take this into account.

The case sets a precedent for future cases involving similar circumstances, ensuring that the focus remains on the truth and the evidence, rather than solely on the testimony of a single witness. It also serves as a reminder that the criminal justice system must be vigilant against attempts to subvert it through intimidation or manipulation of witnesses.

Conclusion

The Supreme Court’s judgment in Hemudan Nanbha Gadhvi vs. State of Gujarat is a significant ruling that addresses the complexities of sexual assault cases where the victim turns hostile. The court’s decision to uphold the conviction despite the victim’s denial underscores the importance of corroborative evidence and the need to protect the integrity of the criminal justice system.

The key findings of the case are:

• A conviction can be sustained even if the victim turns hostile, provided there is strong corroborative evidence.
• The T.I.P. can be considered substantive evidence when other evidence supports it.
• Medical and forensic evidence are crucial in establishing guilt.
• The criminal justice system should not be subverted by hostile witnesses.
• Procedural lapses should not undermine the pursuit of justice when the evidence is overwhelming.

The judgment serves as a reminder that the criminal justice system must be robust and resilient, capable of delivering justice even in the face of challenges such as hostile witnesses and procedural lapses. It also highlights the need to protect vulnerable victims and ensure that they have access to justice.