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.”

 
New Delhi: The Supreme Court affirmed the conviction of a rape accused even though the rape survivor turned hostile and failed to identify him. Setting a new precedent, the apex court said that it would indeed be a "travesty of justice,” when the medical proof corroborates the story.
 
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.”
 
“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,” the court said in its judgment.
 
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.
 
“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 PW­1 by a settlement through coercion, intimidation, persuasion and undue influence. The mere fact that PW­2 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 the perpetrator,” the court said in its judgement.
 
"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.
 
The court showed compassion and restraint when the matter of prosecuting the survivor for falsifying evidence came. 

“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,” a report said.
 
"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.