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Hemudan Nanbha Gadhvi Vs. State of Gujarat - (Supreme Court) (28 Sep 2018)

When there is omission to put material evidence to Accused by Trial Court, prosecution cannot be said to be guilty of not adducing or suppressing such evidence

MANU/SC/1097/2018

Criminal

The Appellant assails his conviction by the High Court under Section 376(2)(f) of Indian Penal Code, 1860 (IPC) sentencing him to ten years rigorous imprisonment, with fine of Rs. 5,000 along with a default stipulation. 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 been duly proved by PW-12 Police Sub-Inspector. The sexual assault on the prosecutrix stood established by the medical report.

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 victim and the identification of the Appellant as the perpetrator. 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 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 for acquittal, as observed in Zahira Habibullah Sheikh v. State of Gujarat and Mahila Vinod Kumari v. State of Madhya Pradesh. 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.

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 suppressing any evidence. In view of the nature of the evidence available in the present case, no prejudice can be said to have been caused to the Appellant. Supreme Court in Nar Singh v. State of Haryana, held that, when there is omission to put material evidence to the Accused in the course of examination under Section 313 Code of Criminal Procedure, 1973 (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 for laches or omission of the Court. The appeal is dismissed.

Relevant : Zahira Habibullah Sheikh v. State of Gujarat, MANU/SC/1344/2006: (2006) 3 SCC 374 and Mahila Vinod Kumari v. State of Madhya Pradesh, MANU/SC/7817/2008: (2008) 8 SCC 34, Nar Singh v. State of Haryana, MANU/SC/1004/2014: (2015) 1 SCC 496

Tags : CONVICTION   EVIDENCE   CREDIBILITY  

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