Evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him: Supreme Court

On May 08, 2024, the Supreme Court (SC) of India declined to aside the conviction of the accused in a gang rape case, Selvamani vs. the State Rep. by the Inspector of Police, stating that 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. While upholding the conviction, the bench constituting Justice BR Gavai and Justice Sandeep Mehta observed that there was sufficient corroboration to the version given by the prosecutrix (victim) in her examination-in-chief. The SC said, “In the present case also, it appears that, on account of a long gap between the examination-in-chief and cross-examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim, as well as her mother (PW-2) and aunt (PW-3), is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert (PW-8), we find that there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.” 

The SC bench was hearing an appeal filed by the accused against the Madras High Court judgment which upheld his conviction order passed by the trial court. The trial court convicted and sentenced the accused persons for offences punishable under Section Sections 376(2)(g) and 506(1) of the Indian Penal Code, 1860, and Section 4 of the Tamil Nadu Prevention of Women Harassment Act. While hearing the matter, the bench considered various existing judgments. The top court said that “In the present case, the prosecutrix, as well as her mother (PW-2) and her aunt Jamuna (PW-3), have fully supported the prosecution case.” It added that the statement of the prosecutrix under Section 164 CrPC was also recorded before Smt. Lakshmi Ramesh, Judicial Magistrate (PW-6). She has also deposed the prosecutrix, giving the statement and narrating the entire incident. Dr. Indrani, Medical Expert (PW.8), who had examined the victim, has clearly stated that the prosecutrix was having injuries on her person and there was forcible sexual intercourse several times by several persons. So the victim lost her virginity and there were also abrasions on the private parts of the victim. 

Therefore, the bench observed that there is “no doubt that the prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case.” Further, the SC pointed out that “there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief.” It added that “Thus find no reason to interfere with the concurrent findings of fact recorded by the trial court as  well as the High Court on appreciation of the evidence.” The appeal was dismissed by the two-judge bench of the Supreme Court.