Case Note & Summary
The Supreme Court dismissed the appeal filed by Accused No. 2 challenging his conviction for gang rape under Section 376(2)(g) IPC. The victim (PW-1) had lodged an FIR on 28 January 2006 alleging that on 27 January 2006 at 7 PM, while returning home from work, she was taken by Accused No. 1 (the manager/owner of the company) to a railway bridge where four other accused were waiting. They forcibly dragged her to a secluded place, threatened her with a knife, stripped her, and gang raped her until 3:30 AM. She escaped and informed her mother (PW-2) and aunt (PW-3). The trial court convicted all accused under Sections 376(2)(g) and 506(1) IPC and Section 4 of the Tamil Nadu Prevention of Women Harassment Act, sentencing them to 10 years rigorous imprisonment. The High Court dismissed the appeals. The appellant argued that the prosecutrix and her mother and aunt turned hostile in cross-examination and that medical evidence did not support the prosecution. The Supreme Court observed that the examination-in-chief of the prosecutrix fully supported the prosecution case, and the medical evidence (PW-8) confirmed injuries consistent with forcible sexual intercourse by multiple persons. The Court held that the evidence of a hostile witness cannot be rejected in toto; the part that is consistent with the prosecution case can be relied upon. The subsequent retraction after three and a half months was not sufficient to discredit the credible testimony recorded in examination-in-chief. The Court upheld the concurrent findings and dismissed the appeal.
Headnote
A) Criminal Law - Gang Rape - Section 376(2)(g) IPC - Conviction based on prosecutrix's testimony and medical evidence - The appellant challenged his conviction on the ground that the prosecutrix and her relatives turned hostile in cross-examination. The Supreme Court held that the evidence of a hostile witness cannot be rejected in toto; the part which is consistent with the prosecution case can be relied upon. The prosecutrix's examination-in-chief and the medical evidence clearly established the offence. The subsequent retraction was not sufficient to discredit the prosecution case. (Paras 5-10)
B) Evidence Law - Hostile Witness - Appreciation of Evidence - The Court reiterated the settled principle that the evidence of a hostile witness is not effaced from the record; it can be accepted to the extent it is found dependable on careful scrutiny. (Paras 9-10)
C) Criminal Procedure - Appeal - Section 374 CrPC - Dismissal of appeal by High Court - The High Court's dismissal of the criminal appeal was upheld as the concurrent findings of fact were based on credible evidence. (Paras 1, 2.6)
Issue of Consideration
Whether the conviction of the appellant under Section 376(2)(g) IPC is sustainable when the prosecutrix and other witnesses turned hostile in cross-examination?
Final Decision
The Supreme Court dismissed the appeal and upheld the conviction of the appellant under Section 376(2)(g) IPC and other offences, as well as the sentences imposed by the trial court and confirmed by the High Court.
Law Points
- Evidence of hostile witness cannot be rejected in toto
- relevant part can be relied upon
- Medical evidence corroborating prosecutrix's testimony
- Conviction under Section 376(2)(g) IPC sustainable despite subsequent retraction by witnesses
Case Details
Criminal Appeal No. 840 of 2012 (arising out of SLP (Crl.) No. 100 of 2020)
Shri Rahul Shyam Bhandari (for appellant), Shri V. Krishnamurthy (for State of Tamil Nadu)
Accused No. 2 (name not mentioned in judgment)
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against conviction for gang rape and related offences.
Remedy Sought
Appellant (Accused No. 2) sought acquittal by challenging the concurrent findings of the trial court and High Court.
Filing Reason
Appellant was convicted under Section 376(2)(g) IPC and other offences; he appealed on the ground that the prosecutrix and other witnesses turned hostile in cross-examination and medical evidence did not support the prosecution.
Previous Decisions
Trial court convicted all accused under Sections 376(2)(g) and 506(1) IPC and Section 4 of Tamil Nadu Prevention of Women Harassment Act, sentencing them to 10 years rigorous imprisonment. High Court dismissed the appeals.
Issues
Whether the conviction under Section 376(2)(g) IPC is sustainable when the prosecutrix and other witnesses turned hostile in cross-examination?
Whether the medical evidence corroborates the prosecution case?
Submissions/Arguments
Appellant argued that the prosecutrix (PW-1), her mother (PW-2), and aunt (PW-3) did not support the prosecution case in cross-examination, and medical evidence did not support the prosecution.
Appellant relied on Rai Sandeep alias Deepu v. State (NCT of Delhi) to argue that conviction cannot be sustained when evidence of prosecutrix and medical evidence do not support the prosecution.
Respondent (State) argued that the examination-in-chief of the prosecutrix and medical evidence fully supported the prosecution case, and the subsequent retraction was not credible.
Ratio Decidendi
The evidence of a hostile witness cannot be rejected in toto; the part which is consistent with the prosecution case can be relied upon. In this case, the examination-in-chief of the prosecutrix and the medical evidence clearly established the offence of gang rape. The subsequent retraction by the witnesses in cross-examination, recorded after a gap of three and a half months, did not efface the credible evidence already on record. Therefore, the conviction was sustainable.
Judgment Excerpts
The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
In the present case, the prosecutrix as well as her mother-Jaya (PW-2) and her aunt-Jamuna (PW-3) have fully supported the prosecution case.
Procedural History
FIR registered on 28 January 2006. Investigation led to charge-sheet. Case committed to Sessions Court. Trial court convicted accused on 26 June 2012. Accused No. 2 filed Criminal Appeal No. 840 of 2012 before the High Court, which was dismissed on 27 August 2019. Thereafter, Accused No. 2 filed the present appeal before the Supreme Court.
Acts & Sections
- Indian Penal Code, 1860 (IPC): 376(2)(g), 506(1), 341, 323, 506(2)
- Code of Criminal Procedure, 1973 (CrPC): 374, 164
- Tamil Nadu Prevention of Women Harassment Act: 4
