Supreme Court: Navin Sinha, J. speaking for Ranjan Gogoi,  J. and himself and K.M. Joseph, J. dismissed an appeal, which if not the circumstances of the case were prevalent would have been an appropriate case to be directed for prosecution.

The factual matrix of the case briefs out the relevant points to be considered while comprehending the present cases which are, the prosecutrix was aged 9 years at the time of sexual assault in the year 2004 by an unknown person; along with the prosecutrix was PW-3 who was a minor too. Further, it has been stated that the FIR was lodged by the mother of the prosecutrix and in furtherance, to that, a medical test was conducted which clearly had established the sexual assault signs on the prosecutrix. Six months later when the trial took place PW-3 and prosecutrix both denied the sexual assault and also declined dock identification. Therefore, Trial Court acquitted the appellant, which further was reversed by the High Court on an appeal by the State.

The Supreme Court on noting the submissions placed by the learned counsel who was opposing the appeal, the Court stated that “We find no infirmity in the reasoning of the High Court that, 6 months was a sufficient time and opportunity for the accused to win over the prosecutrix by a settlement through coercion, intimidation, persuasion and undue influence.”

The Court on placing reliance on State v. Sanjeev Nanda, 2012 (8) SCC 450, stated that the mere fact of prosecutrix turning hostile is not relevant, and it also does not efface the evidence with regard to the sexual assault upon her and the identification of the appellant as the perpetrator.

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 turn hostile.”

The Apex Court in the present case stated it to be a “travesty of justice” if the appellant were acquitted simply on the basis of prosecutrix turning hostile by giving no consideration to the overwhelming evidence placed. Additionally, the Court was of the view that it was a fit case to direct prosecution of the prosecutrix under Section 344 CrPC for tendering false evidence. However, the Court took a different view even after being aware of the perpetrator in the present case only on the basis that the stated occurrence took place 14 years ago and at present she must be married and settled in a new life, all of which may possibly be jeopardized if the present appeal is not dismissed. Therefore, the appeal stands to be dismissed. [Hemudan Nanbha Gadhvi v. State of Gujarat,2018 SCC OnLine SC 1688, decided on 28-09-2018]


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