IMPORTANT POINTS
Opinion of the doctor that the injury could be caused by a fall, does not establish the injury as due to fall as a fact. It remains a mere expression of an opinion.
TIP report, if corroborated by other evidence, may prevail upon non identification in the court.
In view of other evidence the prosecutrix turning hostile may not be material.

JUDGMENT

NAVIN SINHA, J.

The appellant assails his conviction by the High Court under Section 376(2)(f) IPC, sentencing him to ten years rigorous imprisonment, with fine of Rs.5,000/- along with a default stipulation, after reversing his acquittal ordered by the trial court.

2. The prosecutrix PW-2, aged 9 years, was sexually assaulted on 20.02.2004 by an unknown, tall and thin person wearing white clothes. PW-3 Jasiben, accompanying the prosecutrix was also a minor. She informed PW-1 Ambaben, the mother of the prosecutrix. F.I.R. was lodged by PW-1 the same day. The medical examination of the prosecutrix was also done the same day, by PW-9 Dr. Meghna Narendrabhai Mehta. Sexual assault on PW-2 stood established by rupture of the hymen, with fresh blood oozing, and injury of 1.5 cm to 2 cm extending upto the lower part of the body. The appellant and one Dhirubhai Mulubhai Desai were taken into custody on suspicion. Test Identification Parade (T.I.P.) was conducted by PW-11, the Executive Magistrate, Dilipkumar Kantilal Rathod two days after the occurrence on 22.02.2004. The T.I.P. report Exhibit P38, bears the thumb impression of PW-2 who was accompanied by her mother. The appellant was identified by PW-2. Six months later, on 31.08.2004 while deposing during trial PW-2 and PW-3 denied the sexual assault and also declined dock identification. The trail court consequentially acquitted the appellant.

3. 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 SubInspector Bachubhai P. Kalsariya. The sexual assault on the prosecutrix stood established by the medical report, corroborated by the presence of semen on the clothes of the prosecutrix, and the appellant, proved by the FSL serological report as belonging to Group B, which is the same as that of the appellant. The T.I.P. identification of the appellant stood proved by PW-11. The appellant was held to have won over the prosecutrix by sheer passage of time and the consequent delay in trial, but that it could not come to the aid of the appellant in view of the nature of evidence available against him.

4. Learned counsel for the appellant assailing the conviction contended that the T.I.P. is only corroborative evidence, and cannot be put at par with substantive evidence for conviction. There is not an iota of evidence with regard to the identity of the appellant being the perpetrator, and dock identification of the appellant had been declined. Reliance was placed on Sheikh Sintha Madhar vs. State Rep. by Inspector of Police, (2016) 11 SCC 265 and Prakash vs. State of Karnataka, (2014) 12 SCC, 133. It was lastly contended that the serological report was not formally exhibited and neither had the author of the same been examined. No question was put to the appellant under Section 313 Cr.P.C. with regard to the serological report, with an opportunity of defence, relying on Tara Singh vs. The State, AIR 1951 SC 441. The conviction was therefore unsustainable.

5. Learned counsel for the State opposing the appeal submitted that the sexual assault on the prosecutrix stood established by the medical report. The appellant had been identified in the T.I.P. which was conducted without delay. The presence of semen belonging to Group B as of the appellant, on the clothes of the victim as also the appellant, were together sufficient to sustain the conviction. If PW-1 and 2 due to poverty, with sheer passage of time by six months before deposing in court had been won over, it will not detract from the offence committed by the appellant to warrant acquittal.

6. We have considered the submissions on behalf of the parties. The records have also been perused including necessary translations into English from vernacular language. PW-1 and PW-2 have acknowledged having gone to the hospital on the day of occurrence. PW-9, the doctor has confirmed the sexual assault made on PW-2. The F.I.R.