PETITIONER:
BHARWADA BHOGINBHAI HIRJIBHAI
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT24/05/1983
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
SEN, A.P. (J)
CITATION:
1983 AIR 753 1983 SCR (3) 280
1983 SCC (3) 217 1983 SCALE (1)665
CITATOR INFO :
RF 1988 SC 696 (10,14)
R 1988 SC1883 (247)
R 1989 SC1890 (27)
R 1990 SC 658 (14,19)
ACT:
Constitution of India, 1950, Article 136 read with
order XXI of the Supreme Court Rules, 7966-Concurrent
finding of fact, when can be reopened by the Supreme Court
in an appeal by Special Leave, explained.
Evidence - Reappreciation of evidence in the context of
minor discrepancies, explained.
Evidence-Corroborative evidence in rape cases-Whether,
when and to what extent corroboration to the testimony of a
victim of rape is essential to establish the charge.
HEADNOTE:
The appellant, a government servant employed in the
Sachivalaya at Gandhinagar was found guilty, by the Sessions
Judge, Mehsna, of serious charges of sexual misbehaviour
with two young girls (aged about 10 or 12 and was convicted
for the offence of rape, outraging the modesty of women, and
wrongful confinement The appeal carried to the High Court
substantially failed. The High Court affirmed the orders of
conviction under section 342 I.P.C. for wrongfully confining
the girls and conviction under Section 354 I.P.C. for
outraging the modesty of the two girls. With regard to the
more serious charge of rape on one of the girls, the High
Court came to the conclusion that what was established by
evidence was an offence or attempt to commit rape and not of
rape. Accordingly, the conviction under Section 376 was
altered into one under Section 376 read with Section Sl I
I.P.C.
Dismissing the appeal and maintaining the conviction on
all counts, Court
^
HELD: 1:1 A concurrent finding of fact as recorded by
the Sessions Court and affirmed by the High Court, cannot be
reopened in an appeal by Special Leave unless it is
established (1) that the finding is based on no evidence or
(2) that the finding is perverse, it being such as no
reasonable person could have arrived at even if the evidence
was taken at its face value or (3) the finding is based and
built on inadmissible evidence, which evidence if excluded
from vision, would negate the prosecution case or
substantially discredit or impair it or (4) some vital piece
of evidence which would tilt the balance in favour of the
convict has been overlooked, disregarded, or wrongly
discarded. The present is not a case of such a nature. [285
G-H, 286 A]
1:2. Discrepancies which do not go to the root of the
matter and shake the basic version of the witnesses
therefore cannot be annexed with undue
281
importance. More so when the all important "probabilities-
factor" echoes in favour of the version narrated by the
witnesses. The reasons are: (1) By and large a witness
cannot be expected to possess a photographic memory and to
recall the details of an incident. It is not as if a video
tape is replayed on the mental screen; (2) ordinarily it so
happens that a witness is overtaken by events. The witness
could not have anticipated the occurrence which so often has
an element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details; (3)
The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person's mind whereas it might go
unnoticed on the part of another; (4) By and large people
cannot accurately recall a conversation and reproduce the
very words used by them or heard by them. They can only
recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape recorder;
(5) In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to make
very precise or reliable estimates in such matters. Again,
it depends. On the 'timesense' of individuals which varies
from person to person. (6) ordinarily a witness cannot be
expected to recall accurately the sequence of events which
take place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up, when
interrogated later on; (7) A witness, though wholly
truthful, is liable to be overawed by the court atmosphere
and the piercing cross examination made by counsel and out
of nervousness mix up facts; get confused regarding sequence
of events, or fill up details from imagination on the spur
of moment. The subconscious mind of the witness sometimes so
operates on account of the fear of looking foolish, or being
disbelieved, though the witness is giving a truthful and
honest account of the occurrence witnessed by him-Perhaps it
is a sort of a psychological defence mechanism activated on
the spur of the moment. [286 B-H, 287 A-E]
2:1. Corroboration is not the sine-quo-non for a
conviction in a rape case. In the Indian setting, refusal to
act on the testimony of a victum of sexual assault in the
absence of corroboration as a rule, is adding insult to
injury. Viewing the evidence of the girl or the women who
complains of rape or sexual molestation with the aid of
spectacles fitted with lenses tinged with doubt, disbelief
or suspicion, is to justify the charge of male chauvinism in
a male dominated society. [287 F. 288 C-D]
Rameshwar v. The State of Rajasthan, [1952] S.C.R. 377
@ 386 followed.
2:2. Corroboration may be considered essential to
establish a sexual offence in the backdrop of the social
ecology of the Western World. It is wholly unnecessary to
import the said concept on a turn-key basis and to
transplant it on the Indian soil regardless of the
altogether different atmosphere, attitudes, mores, responses
of the Indian Society, and its profile. The identities of
the two worlds are different. The solution of problems
cannot therefore be idential. It is conceivable in the
Western Society that a female may level false accusation as
regards sexual molestation against a male for several
reasons such as:-(1) The female may be a 'gold
282
digger' and may well have an economic motive-to extract
money by holding out the gun of prosecution or public
exposure; (2) She may be suffering from psychological
neurosis and may seek an escape from the neurotic prison by
phantasizing or imagining a situation where she is desired,
wanted and chased, by males. (3) She may want to wreak
vengence on the male for real or imaginary wrongs. She may
have a grudge against a particular male, or males in
general, and may have the design to square the account; (4)
She may have been induced to do so in consideration of
economic rewards, by a person interested in placing the
accused in a compromising or embarassing position, on
account of personal or political vendetta; (5) She may do so
to gain notoriety or publicity or to appease her own ego, or
to satisfy her feeling of self-importance in the context of
her inferiority complex; (6) She may do so on account of
jealousy; (7) She may do so to win sympathy of others; (8)
She may do so upon being repulsed. By and large these
factors are not relevant to India, and the Indian
Conditions. [288 F-H, 289 A-E]
2:3. Rarely will a girl or a woman in India make such
false allegations of sexual assault, whether she belongs to
the urban or rural society, or, sophisticated, or, not-so
sophisticated, or, unsophisticated society. Only very rerely
can one conceivably come accross an exception or two and
that too possibily from amongst the urban elites. Because:-
(1) A girl or a woman in the tradition bound non-permissive
Society of India would be extremely reluctant even to admit
that any incident which is likely to reflect on her chastity
had ever occurred; (2) She would be conscious of the danger
of being ostracised by the Society or being looked down by
the society including by her own family members, relatives,
friends, and neighbours; (3) She would have to brave the
whole world; (4) She would face the risk of losing the love
and respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered; (5) If
she is unmarried, she would apprehend that it would be,
difficult to secure an alliance with a suitable match from a
respectable or an acceptable family; (6) lt would almost
inevitably and almost invariably result in mental torture
and suffering to herself; (7) The tear of being taunted by
others will always haunt her; (8) She would feel extremely
embarrassed in relating the incident to others being over
powered by feeling of shame on account of the upbringing in
a tradition bound society where by and large sex is taboo;
(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and family
honour is brought into controversy; (10) The parents of an
unmarried girl as also the husband and members of the
husband's family of a married woman, would also more often
than not, want to avoid publicity on account of the fear of
social stigma on the family name and family honour; (11) The
fear of the victim herself being considered to be
promiscuous or in some way responsible for the incident
regardless of her innocence; (12) The reluctance to face
interrogation by the investigating agency, to face the
court, to face the cross examination by Counsel for the
culprit, and the risk of being disbelieved, acts as a
deterrent. In view of these factors the victims and their
relatives are not too keen to bring the culprit to books.
And when in the face of these factors the crime is brought
to light there is a built in assurance that the charge is
genuine rather than fabricated. [289 F-H, 290 A-E]
283
2:4. On principle the evidence of a victim of sexual
assault stands on par with evidence of an injured witness.
Just as a witness who has sustained an injury (which is not
shown or believed to be self-inflicted) is the best witness
in the sense that he is least likely to exculpate the real
offender, the evidence of a victim of a sex-offence is
entitled to great weight, absence of corroboration
notwithstanding. And while corroboration in the form of eye
witness account of an independent witness may often be
forthcoming in physical assault cases, such evidence cannot
be expected in sex offences, having regard to the very
nature of the offence. It would therefore be adding insult
to injury to insist on corroboration drawing inspiration
from the rules devised by the courts in the Western World.
[290 E-G]
2:5. Therefore, if the evidence of the victim does not
suffer from any basic infirmity, and the 'probabilities-
factor' does not render it unworth of credence, as a general
rule, there is no reason to insist on corroboration except
from the medical evidence, where, having regard to the
circumstances of the case, medical evidence can be expected
to be forthcoming, subject to the following qualification:
Corroboration may be insisted upon when a woman having
attained majority is surprised in a compromising position
and there is a likelihood of her having levelled such an
accusation on account of the instinct of self-preservation.
Or when the 'probabilities-factor' is found to be out of
tune. [290 G-H, 291 A-B]
2:6. To countenance the suggestion, in the instant
case, that the appellant has been falsely roped in at the
instance of the father of P.W. 2 who was supposed to have
some enmity against the appellant would be wrong. Ordinarily
no parents would do so in Indian Society as at present and
thereby bring down their own social status and spoil their
reputation in Society, not to speak of the danger of
traumatic effect on the psychology of their daughter. Having
regard to the prevailing mores of the Indian Society, it is
inconceivable that a girl of 10 or 12 would invent on her
own a false story of sexual molestation. Moreover, the
medical evidence fully supports the finding of the High
Court that there was an attempt to commit rape on P.W. 1 by
the appellant. [291 G-H, 292 A-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 68
of 1977.
Appeal by Special Leave from the Judgment and order
dated 15th November, 1976 of the Gujarat High Court in
Criminal Appeal No. 832 of 1976.
R.H. Dhebar and B. V. Desai for the Appellant.
R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
284
THAKKAR, J. To say at the beginning what we cannot help
saying at the end: human goodness has limits-human depravity
has none. The need of the hour however, is not exasperation.
The need of the hour is to mould and evolve the law so
as to make it more sensitive and responsive to the demands
of the time in order to resolve the basic problem: “Whether,
when, and to what extent corroboration to the testimony of a
victim of rape is essential to establish the charge.” And
the problem has special significance for the women in India,
for, while they have often been idolized, adored, and even
worshipped, for ages they have also been exploited and
denied even handed justice-Sixty crores anxious eyes of
Indian a women are therefore focussed on this problem. And
to that problem we will presently address ourselves.
The learned Sessions Judge Mehsana found the appellant,
a Government servant employed in the Sachivalaya at
Gandhinagar, guilty of serious charges of sexual
misbenaviour with two young girls (aged about 10 or 12) and
convicted the appellant for the offence of rape, outraging
the modesty of women, and wrongful confinement. The appeal
carried to the High Court substantially failed. The High
Court affirmed the order of conviction under Sec. 342 of the
Indian Penal Code for wrongfully confining the girls. The
High Court also sustained the order of conviction under Sec.
354 of the Indian Penal Code for outraging the modesty of
the two girls. With regard to the more serious charge of
rape on one of the girls, the High Court came to the
conclusion that what was established by evidence was an
offence of attempt to commit rape and not of rape.
Accordingly the conviction under Sec. 376 was altered into
one under Sec. 376 read with Sec. 511 of the Indian Penal
Code. The appellant has preferred the present appeal with
special leave.
The incident occurred on Sunday, September 7, 1975, at
about 5.30 p.m. at the house of the appellant. The evidence
of P.W. 1 and P.W. 2 shows that they went to the house of
the appellant in order to meet his daughter (belonging to
their own age group of 10 or 12) who happened to be their
friend. The appellant induced them to enter his house by
creating an impression that she was at home, though, in fact
she was not. Once they were inside, the appellant closed the
door, undressed himself in the presence of both the girls,
and exposed himself. He asked P.W. 2 to indulge in an
indecent act. P.W. 2 started crying and fled from there.
P.W. 1
285
however could not escape. She was pushed into a cot, and was
made to undress. The appellant sexually assaulted her. P.W.
1 was in distress and was weeping as she went out. She
however could not apprise her parents about what had
transpired because both of them were out of Gandhinagar
(they returned after 4 or 5 days).
It appears that the parents of P.W. 1 as well as
parents of P.W. 2 wanted to hush up the matter. Some
unexpected developments however forced the issue. The
residents of the locality somehow came to know about the
incident. And an alert Woman Social Worker, P.W. 5
Kundanben, President of the Mahila Mandal in Sector 17,
Gandhinagar, took up the cause. She felt indignant at the
way in which the appellant had misbehaved with two girls of
the age of his own daughter, who also happened to be friends
of his daughter, taking advantage of their helplessness,
when no one else was present. Having ascertained from P.W. 1
and P.W. 2 as to what had transpired, she felt that the
appellant should atone for his infamous conduct. She
therefore called on the appellant at his house. It appears
that about 500 women of the locality had also gathered near
the house of the appellant. Kundanben requested the
appellant to apologize publicly in the presence of the woman
who had assembled there. If the appellant had acceded to .
this request possibly the matter might have rested there and
might not have come to the court. The appellant, however,
made it a prestige issue and refused to apologize. Thereupon
the police was contacted and a complaint was lodged by P.W.
1 on 19 Sept. 1975. P.W. 1 was then sent to the Medical
officer for medical examination. The medical examination
disclosed that there was evidence to show that an attempt to
commit rape on her had been made a few days back. The
Sessions Court as well as the High Court have accepted the
evidence and concluded that the appellant was guilty of
sexual misbehavior with P.W. 1 and P.W. 2 in the manner
alleged by the prosecution and established by the evidence
of P.W. 1 and P.W. 2. Their evidence has been considered to
be worthy of acceptance lt is a pure. finding of fact
recorded by the Sessions Court and affirmed by the High
Court. Such a concurrent finding of fact cannot be reopened
in an appeal by special leave unless it is established: (1)
that the finding is based on no evidence or (2) that the
finding is perverse, it being such as no reasonable person
could have arrived at even if the evidence was taken at its
face value or (3) the finding is based and built on
inadmissible evidence, which evidence, if excluded from
vision, would negate the prosecution case or substantially
discredit
286
or impair it or (43 some vital piece of evidence which would
tilt the balance in favour of the convict has been
overlooked, disregarded, or wrongly discarded. The present
is not a case of such a nature. The finding of guilt
recorded by the Sessions Court as affirmed by the High Court
has been challenged mainly on the basis of minor
discrepancies in the evidence. We do not consider it
appropriate or permissible to enter upon a reappraisal or
reappreciation of the evidence in the context of the minor
discrepancies painstakingly highlighted by learned counsel
for the appellant. Over much importance cannot be attached
to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to
possess a photographic memory and to recall
the details of an incident. It is not as if a
video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is
overtaken by events. The witness could not
have anticipated the occurrence which so
often has an element of surprise. The mental
faculties therefore cannot be expected to be
attuned to absorb the details.
(3) The powers of observation differ from person
to person. What one may notice, another may
not. An object or movement might emboss its
image on one person’s mind whereas it might
go unnoticed on the part of another.
(4) By and large people cannot accurately recall
a conversation and reproduce the very words
used by them or heard by them. They can only
recall the main purport of the conversation.
It is unrealistic to expect a witness to be a
human tape recorder.
(5) In regard to exact time of an incident, or
the time duration of an occurrence, usually,
people make their estimates by guess work on
the spur of the moment 1.1 at the time of
interrogation. And one cannot expect people
to make very precise or reliable estimates in
such matters. Again, it depends on the time-
sense of individuals which varies from person
to person.
287
(6) Ordinarily a witness cannot be expected to
recall accurately the sequence of events
which take place in rapid succession or in a
short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.
(7) A witness, though wholly truthful, is liable
to be overawed by the court atmosphere and
the piercing cross examination made by
counsel and out of nervousness mix up facts,
get confused regarding sequence of events, or
fill up details from imagination on the spur
of the moment. The sub-conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him-Perhaps it is a sort of a
psychological defence mechanism activated on
the spur of the moment.
Discrepancies which do not go to the root of the matter
and shake the basic version of the witnesses therefore
cannot be annexed with undue importance. More so when the
all important “probabilities-factor” echoes in favour of the
version narrated by the witnesses.
It is now time to tackle the pivotal issue as regards
the need for insisting on corroboration to the testimony of
the prosecutrix in sex-offences. This Court, in Rameshwar v.
The State of Rajasthan,(1) has declared that corroboration
is not the sine que-non for a conviction in a rape case. The
utterance of the Court in Rameshwar may be replayed, across
the time-gap of three decades which have whistled past, in
the inimitable voice of Vivian Bose, J. who spoke for the
Court
The rule, which according to the cases has
hardened into one of law, is not that
corroboration is essential before there can be a
conviction but that the necessity of
corroboration, as a matter of prudence, except
where the circumstances make it safe to dispense
with it, must be present to the mind of the judge
…….
288
The only rule of law is that this rule of prudence
must be present to the mind of the Judge or the
jury as the case may be and be understood and
appreciated by him or them. There is no rule of
practice that there must, in every case, be
corroboration before a conviction can be allowed
to stand.”
And whilst the sands were running out in the time
glass, the crime graph of offences against women in India
has been scaling new peaks from day to day. That is why an
elaborate rescanning of the jurisprudential sky through the
lenses of ‘logos’ and ‘ethos’, has been necessitated.
In the Indian setting, refusal to act on the testimony
of a victim of sexual assault in the absence of
corroboration as a rule, is adding insult to injury. Why
should the evidence of the girl or the woman who complains
of rape or sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt, disbelief
or suspicion ? To do so is to justify the charge of male
chauvinism in a male dominated society. We must analyze the
argument in support of the need for corroboration and
subject it to relentless and remorseless cross-examination.
And we must do so with a logical, and not an opiniated, eye
in the light of probabilities with our feet firmly planted
on the soil of India and with our eyes focussed on the
Indian horizon. We must not be swept off the feet by the
approach made in the Western World which has its own social
mileu, its own social mores, its own permissive values, and
its own code of life. Corroboration may be considered
essential to establish a sexual offence in the backdrop of
the social ecology of the Western World. It is wholly
unnecessary to import the said concept on a turn-key basis
and to transplate it on the Indian soil regardless of the
altogether different atmosphere, attitudes, mores, responses
of the Indian Society and its profile. The identities of the
two worlds are different. The solution of problems cannot
therefore be identical. It is conceivable in the Western
Society that a female may level false accusation as regards
sexual molestation against a male for several reasons such
as:
(1) The female may be a ‘gold digger’ and may
well have an economic motive to extract money
by holding out the gun of prosecution or
public exposure.
289
(2) She may be suffering from psychological
neurosis and may seek an escape from the
neurotic prison by phantasizing or imagining
a situation where she is desired, wanted, and
chased by males.
(3) She may want to wreak vengence on the male
for real or imaginary wrongs. She may have a
grudge against a particular male, or males in
general, and may have the design to square
the account.
(4) She may have been induced to do so in
consideration of economic rewards, by a
person interested in placing the accused in a
compromising or embarassing position, on
account of personal or political vendatta.
(5) She may do so to gain notoriety or publicity
or to appease her own ego or to satisfy her
feeling of self-importance in the context of
her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
By and large these factors are not relevant to India,
and the Indian conditions. Without the fear of making too
wide a statements or of overstating the case, it can be said
that rarely will a girl or a woman in India make false
allegations of sexual assault on account of any such factor
as has been just enlisted. The statement is generally true
in the context of the urban as also rural Society. It is
also by and large true in the context of the sophisticated,
not so sophisticated, and unsophisticated society. Only very
rarely can one conceivably come across an exception or two
and that too possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely reluctant
even to admit that any incident which is likely to reflect
on her chastity had ever occurred. (2) She would be
conscious of the danger of being ostracised by the Society
or being looked down by the Society including by her own
family members, relatives, friends and neighbours. (3) She
would have to brave the
290
whole world. (4) She would face the risk of losing the love
and respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered. (S) If
she is unmarried, she would apprehend that it would be
difficult to secure an alliance with a suitable match from a
respectable or an acceptable family. (6) It would almost
inevitably and almost invariably result in mental torture
and suffering to herself. (7) The fear of being taunted by
others will always haunt her. (8) She would feel extremely
embarrassed in relating the incident to others being over
powered by a feeling of shame on account of the upbringing
in a tradition bound society where by and large sex is
taboo. (9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and family
honour is brought into controversy. (10) The parents of an
unmarried girl as also the husband and members of the
husband’s family of a married woman would also more often
than not, want to avoid publicity on account of the fear of
social stigma on the family name and family honour. (11) The
fear of the victim herself being considered to be
promiscuous or in some way responsible for the incident
regardless of her innocence. (12) The reluctance to face
interrogation by the investigating agency, to face the
court, to face the cross examination by Counsel for the
culprit, and the risk of being disbelieved, acts as a
deterrent.
In view of these factors the victims and their
relatives are not too keen to bring the culprit to books.
And when in the face of these factors the crime is brought
to light there is a built-in assurance that the charge is
genuine rather than fabricated.. On principle the evidence
of a victim of sexual assault stands on par with evidence of
an injured witness. Just as a witness who has sustained an
injury (which is not shown or believed to be self inflicted)
is the best witness in the sense that he is least likely to
exculpate the real offender, the evidence of a victim of a
sex-offence is entitled to great weight, absence of
corroboration notwithstanding. And while corroboration in
the form of eye witness account of an independent witness
may often be forthcoming in physical assault cases, such
evidence cannot be expected in sex offences, having regard
to the very nature of the offence. It would therefore be
adding insult to injury to insist on corroboration drawing
inspiration from the rules devised by the courts in the
Western World. Obseisance to which has perhaps become a
habit presumably on account of the colonial hangover. We are
therefore of the opinion that if the evidence of the victim
does not suffer from any basic infirmity, and the
probabilities-factors does not render it unworthy of
credence, as a general
291
rule, there is no reason to insist on corroboration except
from the medical evidence, where, having regard to the
circumstances of the case, medical evidence can be expected
to be forthcoming, subject to the following qualification:
Corroboration may be insisted upon when a woman having
attained majority is found in a compromising position and
there is a likelihood of her having levelled such an
accusation on account of the instinct of self-preservation.
Or when the ‘probabilities-factor’ is found to be out of
tune.
Now we return to the facts of the present case. Testing
the evidence from this perspective, the evidence of P.W. 1
and P.W. 2 inspires confidence. The only motive suggested by
defence was that there was some history of past trade union
rivalry between the father of P.W. 2 and the appellant. It
must be realized that having regard to the prevailing mores
of the Indian Society, it is inconceivable that a girl of 10
or 12 would invent on her own a false story of sexual
molestation. Even at the age of 10 or 12 a girl in India can
be trusted to be aware of the fact that the reputation of
the entire family would be jeopardised, upon such a story
being spread. She can be trusted to-know that in the Indian
Society her own future chances of getting married and
settling down in a respectable or acceptable family would be
greatly marred if any such story calling into question her
chastity were to gain circulation in the Society. It is also
unthinkable that the parents would tutor their minor
daughter to invent such a story in order to wreak vengence
on someone. They would not do so for the simple reason that
it would bring down their own social status in the Society
apart from ruining the future prospects of their own child.
They would also be expected to be conscious of The traumatic
effect on the psychology of the child and the disastrous
consequences likely to ensue when she grows up. She herself
would prefer to suffer the injury and the harassment, rather
than to undergo the harrowing experience of lodging a
complaint in regard to a charge reflecting on her own
chastity. We therefore refuse to countenance the suggestion
made by the defence that the appellant has been falsely
roped in at the instance of the father of P.W. 2 who was
supposed to have some enmity against the appellant. It is
unthinkable that the parents of P.W. 2 would tutor her to
invent a story of sexual misbehavior on the part of the
appellant merely in order to implicate him on account of
past trade union rivalry. The parents would have also
realized the danger of traumatic effect on the psychology of
their daughter. In fact it would have been considered to be
extremely distasteful to
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broach the subject. It is unthinkable that the parents would
go to the length of inventing a story of sexual assault on
their own daughter and tutor her to narrate such a version
which would bring down their own social status and spoil
their reputation in Society. Ordinarily no parents would do
so in Indian society as at present. Under the circumstances
the defence version that the father of P.W. 2 had tutored
her to concoct a false version in order to falsely implicate
the appellant must be unceremoniously thrown overboard.
Besides, why should the parents of P.W. 1 mar the future
prospects of their own daughter ? It is not alleged that
P.W. 1 had any motive to falsely implicate the appellant. So
also it is not even suggested why P.W. 1 should falsely
implicate the appellant. From the stand point of
probabilities it is not possible to countenance the
suggestion that a false story has been concocted in order to
falsely implicate the appellant. The medical evidence
provided by P.W 6, Dr. Hemangini Desai, fully supports the
finding of the High Court that there was an attempt to
commit rape on P.W. 1. Under the circumstances the
conclusion reached by the High Court cannot be successfully
assailed.
The only question that now remains to be considered is
as regards the sentence. The appellant has behaved in a
shockingly indecent manner. The magnitude of his offence
cannot be overemphasized m the context of the fact that he
misused his position as a father of a girl friend of P.W. 1
and- P.W. 2. P.W. 1 and P.W. 2 were visiting his house
unhesitatingly because of the fact that his daughter was
their friend. To have misused this position and to-have
tricked them into entering the house, and to have taken
undue advantage of the situation by subjecting them to
sexual harassment, is a crime of which a serious view must
be taken. But for the following facts and circumstances, we
would not have countenanced the prayer for leniency
addressed to us on behalf of the appellant. The special
circumstances are these. The appellant has lost his job in
view of the conviction recorded by the High Court. The
incident occurred some 7 years back. The appeal preferred to
the High Court was dismissed in November 15, 1976. About 6-
1/2 years have elapsed thereafter. In the view that we are
taking the appellant will have to be sent back to jail after
an interval of about 6-1/2 years. The appellant must have
suffered great humiliation in the Society. The prospects of
getting a suitable match for his own daughter have perhaps
been marred in view of the stigma in the wake of the finding
of guilt recorded against him in the context of such an
offence.
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Taking into account the cumulative effect of these
circumstances, and an overall view of the matter, we are of
the opinion that the ends of Justice will be satisfied if
the substantive sentence imposed by the High Court for the
offence under Sec. 376 read with Sec. 511 is reduced from
one of 2-1/2 years’ R. I., to one of 15 months’ R.I. The
sentence of fine, and in default of fine, will be course
remain undisturbed. So also the sentence imposed in the
context of the offence under Sec. 342 and Sec 354 of the
Indian Penal Code will remain intact. Subject to the
modification in the sentence to the aforesaid extent the
appeal fails and is dismissed The appellant shall surrender
in order to undergo the sentence. The bail bonds will stand
cancelled.
S.R. Appeal dismissed.
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