Acquitting rape accused individuals merely because the survivor turned hostile and failed to identify him in the dock, would indeed be a "travesty of justice", the Supreme Court said while affirming the conviction of a rape accused.
A bench of Justice Ranjan Gogoi, Justice Navin Sinha and Justice KM Joseph opined that neither the accused nor the survivor 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 witnesses to turn hostile as a ground for acquittal, the top court said.
The top court while upholding the Gujarat High Court judgement sentencing one Hemudan Nanbha Gadhvi to 10 years in jail for raping a nine-year-old girl in 2004 relied on the medical report of the survivor which confirmed the sexual assault.
The survivor's mother had lodged a complaint with the police and the girl had identified the accused during the Test Identification Parade (TIP).
However, a trial court acquitted Gadhvi after the survivor turned hostile. Later, the High Court convicted him saying her deposition was recorded six months after the incident and accused had sufficient time to settle the issue.
"If the medical evidence had not confirmed sexual assault on the prosecutrix (victim), the TIP and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen," said the top court.
"It would indeed be a travesty of justice in the peculiar facts of the present case if the appellant (accused) were to be acquitted merely because the prosecutrix (victim) turned hostile and failed to identify the appellant in the dock, in view of the other overwhelming evidence available," it said.
On the issue of the survivor turning hostile during the trial, the top court said that this was an appropriate case to direct the prosecution of the survivor for tendering false evidence.
However, the bench refrained itself from doing so considering that the survivor was barely nine years old at the time of the incident which happened 14 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," the top court said.
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