Conviction upheld on the basis of evidence even if prosecutrix turned hostile: SC

22 Oct 2018

Conviction upheld on the basis of evidence even if prosecutrix turned hostile: SC1

On 28th September, 2018,the Apex Court while deciding an appeal in the case of Hemudan Nanbha Gadhvi v. State of Gujarat, dismissed the appeal filed by the appellant and upheld his conviction under section 376 of Indian Penal Code. By this judgment, the Hon’ble Court once again relied on the principle ‘People can lie but the evidences cannot, especially the circumstantial evidences’, and going by this principle again, conviction of appellant of ten years of imprisonment u/s 376(2) of IPC was upheld.

Let’s go through the facts of the case in brief:

A girl aged 9 years was raped in the fields by an unknown, tall and white person on 20.02.2004 when she had gone to the fields for the rearing of her cattle with her another minor friend. A FIR was lodged by the mother of the victim same day and TIP was carried out by the Executive Magistrate on 22.02.2004 and the TIP report also bears the thumb impression of the victim. Initially, the appellant and one more person was taken into custody by police upon suspicion, however the appellant was identified by her minor friend. The medical examination of the victim also confirmed the sexual assault and as per the FSL serological report the semen samples found on the clothes of the victim were of the appellant. However,after 6 months while deposing in the trial court the victim and her friend turned hostile, denied any kind of sexual assault and identification. Based on their deposition, the trial court acquitted the appellant. Aggrieved by the order of the trial court, State filed appeal in the High Court who convicted the appellant for 10 years of rigorous punishment along with fine. Upon conviction,the appellant filed an appeal in the Apex Court of the country which was dismissed by a bench of three judges and the conviction of the appellant by the High Court was upheld.


The Supreme Court enumerated that “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 victim and her friend by a settlement through coercion, intimidation,persuasion and undue influence. The mere fact that victim 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 perpetrator.”The Court further stated that Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation and the Court has the full power under section 193 of the IPC to punish those witnesses. The statement of the victim that such injury caused by a fall was not established as a fact and also the nature of the injury was such that which would be almost next to impossible to be caused by fall.


It was pointed by the Hon’ble Court that if any of the evidences like medical evidence of the victim, FSL reports,TIP or identification was either doubtful or not corroborated with other evidences then the consideration of the case would be entirely different. But,as in the present the evidences put on record undeniably proves the offence of the appellant then it would be mockery of the criminal justice system if the appellant would be acquitted only because the victim turned hostile and denied any kind of sexual assault on her. It is to be noted here the TIP was duly done by the Executive Magistrate and the report of the TIP also bears the thumb impression of the victim. Therefore, under these circumstances the evidence of TIP cannot be rejected especially when the same has been corroborated with other substantive evidences.


Accordingly, the Hon’ble Court dismissed the appeal of the appellant and confirmed his sentence ordered by High Court, along with this Court decided not to proceed under section 344 of CrPC against the victim for tendering false evidence and opined that the incident happened 14 years ago when the victim was barely 9 years old and at the time of decision she might had been married and settled in her new life and thereby refrained from directing any prosecution against her.

-         By Advocate Prakshi Agrawal



1.       Hemudan Nanbha Gadhvi v. State of Gujarat – 2018 SCC Online SC1688



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