{"id":183840,"date":"1983-05-24T00:00:00","date_gmt":"1983-05-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bharwada-bhoginbhai-hirjibhai-vs-state-of-gujarat-on-24-may-1983"},"modified":"2017-04-15T23:11:47","modified_gmt":"2017-04-15T17:41:47","slug":"bharwada-bhoginbhai-hirjibhai-vs-state-of-gujarat-on-24-may-1983","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bharwada-bhoginbhai-hirjibhai-vs-state-of-gujarat-on-24-may-1983","title":{"rendered":"Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983<\/div>\n
Equivalent citations: 1983 AIR 753, \t\t 1983 SCR (3) 280<\/div>\n
Author: M Thakkar<\/div>\n
Bench: Thakkar, M.P. (J)<\/div>\n
           PETITIONER:\nBHARWADA BHOGINBHAI HIRJIBHAI\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT\n\nDATE OF JUDGMENT24\/05\/1983\n\nBENCH:\nTHAKKAR, M.P. (J)\nBENCH:\nTHAKKAR, M.P. (J)\nSEN, A.P. (J)\n\nCITATION:\n 1983 AIR  753\t\t  1983 SCR  (3) 280\n 1983 SCC  (3) 217\t  1983 SCALE  (1)665\n CITATOR INFO :\n RF\t    1988 SC 696\t (10,14)\n R\t    1988 SC1883\t (247)\n R\t    1989 SC1890\t (27)\n R\t    1990 SC 658\t (14,19)\n\n\nACT:\n     Constitution of  India, 1950,  Article  136  read\twith\norder  XXI  of\tthe  Supreme  Court  Rules,  7966-Concurrent\nfinding of  fact, when\tcan be reopened by the Supreme Court\nin an appeal by Special Leave, explained.\n     Evidence - Reappreciation of evidence in the context of\nminor discrepancies, explained.\n     Evidence-Corroborative evidence  in rape cases-Whether,\nwhen and  to what extent corroboration to the testimony of a\nvictim of rape is essential to establish the charge.\n\n\n\nHEADNOTE:\n     The appellant,  a government  servant employed  in\t the\nSachivalaya at Gandhinagar was found guilty, by the Sessions\nJudge, Mehsna,\tof serious  charges of\tsexual\tmisbehaviour\nwith two  young girls (aged about 10 or 12 and was convicted\nfor the offence of rape, outraging the modesty of women, and\nwrongful confinement  The appeal  carried to  the High Court\nsubstantially failed.  The High Court affirmed the orders of\nconviction under section 342 I.P.C. for wrongfully confining\nthe girls  and\tconviction  under  Section  354\t I.P.C.\t for\noutraging the  modesty of  the two girls. With regard to the\nmore serious  charge of\t rape on  one of the girls, the High\nCourt came  to the  conclusion that  what was established by\nevidence was an offence or attempt to commit rape and not of\nrape. Accordingly,  the conviction  under  Section  376\t was\naltered into  one under\t Section 376  read with Section Sl I\nI.P.C.\n     Dismissing the appeal and maintaining the conviction on\nall counts, Court\n^\n     HELD: 1:1\tA concurrent  finding of fact as recorded by\nthe Sessions Court and affirmed by the High Court, cannot be\nreopened  in  an  appeal  by  Special  Leave  unless  it  is\nestablished (1)\t that the finding is based on no evidence or\n(2) that  the finding  is perverse,  it\t being\tsuch  as  no\nreasonable person could have arrived at even if the evidence\nwas taken  at its face value or (3) the finding is based and\nbuilt on  inadmissible evidence,  which evidence if excluded\nfrom  vision,\twould  negate\tthe  prosecution   case\t  or\nsubstantially discredit or impair it or (4) some vital piece\nof evidence  which would  tilt the  balance in favour of the\nconvict\t has   been  overlooked,   disregarded,\t or  wrongly\ndiscarded. The\tpresent is not a case of such a nature. [285\nG-H, 286 A]\n     1:2. Discrepancies\t which do  not go to the root of the\nmatter\tand   shake  the  basic\t version  of  the  witnesses\ntherefore cannot be annexed with undue\n281\nimportance. More  so when  the all important \"probabilities-\nfactor\" echoes\tin favour  of the  version narrated  by\t the\nwitnesses. The\treasons are:  (1) By  and  large  a  witness\ncannot be  expected to\tpossess a photographic memory and to\nrecall the  details of\tan incident. It is not as if a video\ntape is\t replayed on the mental screen; (2) ordinarily it so\nhappens that  a witness\t is overtaken by events. The witness\ncould not have anticipated the occurrence which so often has\nan element  of\tsurprise.  The\tmental\tfaculties  therefore\ncannot be  expected to be attuned to absorb the details; (3)\nThe powers of observation differ from person to person. What\none may notice, another may not. An object or movement might\nemboss its  image on  one person's  mind whereas it might go\nunnoticed on  the part\tof another;  (4) By and large people\ncannot accurately  recall a  conversation and  reproduce the\nvery words  used by  them or  heard by\tthem. They  can only\nrecall\tthe   main  purport   of  the  conversation.  It  is\nunrealistic to expect a witness to be a human tape recorder;\n(5) In\tregard to  exact time  of an  incident, or  the time\nduration  of  an  occurrence,  usually,\t people\t make  their\nestimates by  guess work  on the  spur of  the moment at the\ntime of\t interrogation. And one cannot expect people to make\nvery precise  or reliable  estimates in such matters. Again,\nit depends.  On the  'timesense' of individuals which varies\nfrom person  to person.\t (6) ordinarily\t a witness cannot be\nexpected to  recall accurately\tthe sequence of events which\ntake place  in rapid  succession or  in a short time span. A\nwitness is  liable  to\tget  confused,\tor  mixed  up,\twhen\ninterrogated  later   on;  (7)\t A  witness,  though  wholly\ntruthful, is  liable to\t be overawed by the court atmosphere\nand the\t piercing cross\t examination made by counsel and out\nof nervousness mix up facts; get confused regarding sequence\nof events,  or fill  up details from imagination on the spur\nof moment. The subconscious mind of the witness sometimes so\noperates on account of the fear of looking foolish, or being\ndisbelieved, though  the witness  is giving  a truthful\t and\nhonest account of the occurrence witnessed by him-Perhaps it\nis a  sort of a psychological defence mechanism activated on\nthe spur of the moment. [286 B-H, 287 A-E]\n     2:1.  Corroboration  is  not  the\tsine-quo-non  for  a\nconviction in a rape case. In the Indian setting, refusal to\nact on\tthe testimony  of a  victum of sexual assault in the\nabsence of  corroboration as  a rule,  is adding  insult  to\ninjury. Viewing\t the evidence  of the  girl or the women who\ncomplains of  rape or  sexual molestation  with the  aid  of\nspectacles fitted  with lenses\ttinged with doubt, disbelief\nor suspicion, is to justify the charge of male chauvinism in\na male dominated society. [287 F. 288 C-D]\n     Rameshwar v.  The State of Rajasthan,<\/a> [1952] S.C.R. 377\n@ 386 followed.\n     2:2.  Corroboration  may  be  considered  essential  to\nestablish a  sexual offence  in the  backdrop of  the social\necology of  the Western\t World. It  is wholly unnecessary to\nimport\tthe   said  concept  on\t a  turn-key  basis  and  to\ntransplant  it\t on  the   Indian  soil\t regardless  of\t the\naltogether different atmosphere, attitudes, mores, responses\nof the\tIndian Society,\t and its  profile. The identities of\nthe two\t worlds are  different.\t The  solution\tof  problems\ncannot therefore  be idential.\tIt  is\tconceivable  in\t the\nWestern Society\t that a female may level false accusation as\nregards\t sexual\t molestation  against  a  male\tfor  several\nreasons such as:-(1) The female may be a 'gold\n282\ndigger' and  may well  have an\teconomic  motive-to  extract\nmoney by  holding out  the  gun\t of  prosecution  or  public\nexposure;  (2)\tShe  may  be  suffering\t from  psychological\nneurosis and  may seek an escape from the neurotic prison by\nphantasizing or\t imagining a situation where she is desired,\nwanted and  chased, by\tmales. (3)  She may  want  to  wreak\nvengence on  the male  for real or imaginary wrongs. She may\nhave a\tgrudge\tagainst\t a  particular\tmale,  or  males  in\ngeneral, and  may have the design to square the account; (4)\nShe may\t have been  induced to\tdo so  in  consideration  of\neconomic rewards,  by a\t person interested  in\tplacing\t the\naccused\t in  a\tcompromising  or  embarassing  position,  on\naccount of personal or political vendetta; (5) She may do so\nto gain notoriety or publicity or to appease her own ego, or\nto satisfy  her feeling of self-importance in the context of\nher inferiority\t complex; (6)  She may\tdo so  on account of\njealousy; (7)  She may\tdo so to win sympathy of others; (8)\nShe may\t do so\tupon being  repulsed.  By  and\tlarge  these\nfactors\t are   not  relevant   to  India,   and\t the  Indian\nConditions. [288 F-H, 289 A-E]\n     2:3. Rarely  will a  girl or a woman in India make such\nfalse allegations  of sexual assault, whether she belongs to\nthe urban  or rural  society, or,  sophisticated, or, not-so\nsophisticated, or, unsophisticated society. Only very rerely\ncan one\t conceivably come  accross an  exception or  two and\nthat too  possibily from amongst the urban elites. Because:-\n(1) A  girl or a woman in the tradition bound non-permissive\nSociety of  India would be extremely reluctant even to admit\nthat any incident which is likely to reflect on her chastity\nhad ever  occurred; (2) She would be conscious of the danger\nof being  ostracised by\t the Society or being looked down by\nthe society  including by her own family members, relatives,\nfriends, and  neighbours; (3)  She would  have to  brave the\nwhole world;  (4) She would face the risk of losing the love\nand respect  of her  own husband  and near relatives, and of\nher matrimonial\t home and  happiness being shattered; (5) If\nshe is\tunmarried, she\twould apprehend\t that it  would\t be,\ndifficult to secure an alliance with a suitable match from a\nrespectable or\tan acceptable  family; (6)  lt would  almost\ninevitably and\talmost invariably  result in  mental torture\nand suffering  to herself;  (7) The tear of being taunted by\nothers will  always haunt  her; (8) She would feel extremely\nembarrassed in\trelating the  incident to  others being over\npowered by  feeling of shame on account of the upbringing in\na tradition  bound society  where by and large sex is taboo;\n(9)  The  natural  inclination\twould  be  to  avoid  giving\npublicity to  the incident  lest the  family name and family\nhonour is  brought into\t controversy; (10) The parents of an\nunmarried girl\tas also\t the  husband  and  members  of\t the\nhusband's family  of a\tmarried woman, would also more often\nthan not,  want to avoid publicity on account of the fear of\nsocial stigma on the family name and family honour; (11) The\nfear  of   the\tvictim\t herself  being\t  considered  to  be\npromiscuous or\tin some\t way responsible  for  the  incident\nregardless of  her innocence;  (12) The\t reluctance to\tface\ninterrogation by  the  investigating  agency,  to  face\t the\ncourt, to  face the  cross examination\tby Counsel  for\t the\nculprit, and  the risk\tof  being  disbelieved,\t acts  as  a\ndeterrent. In  view of\tthese factors  the victims and their\nrelatives are  not too\tkeen to\t bring the culprit to books.\nAnd when  in the  face of these factors the crime is brought\nto light  there is  a built  in assurance that the charge is\ngenuine rather than fabricated. [289 F-H, 290 A-E]\n283\n     2:4. On  principle the  evidence of  a victim of sexual\nassault stands\ton par\twith evidence of an injured witness.\nJust as\t a witness who has sustained an injury (which is not\nshown or  believed to be self-inflicted) is the best witness\nin the\tsense that  he is least likely to exculpate the real\noffender, the  evidence of  a victim  of  a  sex-offence  is\nentitled  to   great  weight,\tabsence\t  of   corroboration\nnotwithstanding. And  while corroboration in the form of eye\nwitness account\t of an\tindependent  witness  may  often  be\nforthcoming in\tphysical assault cases, such evidence cannot\nbe expected  in sex  offences, having  regard  to  the\tvery\nnature of  the offence.\t It would therefore be adding insult\nto injury  to insist  on corroboration\tdrawing\t inspiration\nfrom the  rules devised\t by the courts in the Western World.\n[290 E-G]\n     2:5. Therefore,  if the evidence of the victim does not\nsuffer from  any basic\tinfirmity, and\tthe  'probabilities-\nfactor' does not render it unworth of credence, as a general\nrule, there  is no  reason to insist on corroboration except\nfrom the  medical evidence,  where,  having  regard  to\t the\ncircumstances of  the case, medical evidence can be expected\nto be  forthcoming, subject  to the following qualification:\nCorroboration may  be insisted\tupon  when  a  woman  having\nattained majority  is surprised\t in a  compromising position\nand there  is a\t likelihood of\ther having  levelled such an\naccusation on  account of the instinct of self-preservation.\nOr when\t the 'probabilities-factor'  is found  to be  out of\ntune. [290 G-H, 291 A-B]\n     2:6. To  countenance the  suggestion,  in\tthe  instant\ncase, that  the appellant  has been  falsely roped in at the\ninstance of  the father\t of P.W.  2 who was supposed to have\nsome enmity against the appellant would be wrong. Ordinarily\nno parents  would do  so in Indian Society as at present and\nthereby bring  down their  own social status and spoil their\nreputation in  Society,\t not  to  speak\t of  the  danger  of\ntraumatic effect on the psychology of their daughter. Having\nregard to  the prevailing mores of the Indian Society, it is\ninconceivable that  a girl  of 10  or 12 would invent on her\nown a  false story  of\tsexual\tmolestation.  Moreover,\t the\nmedical evidence  fully supports  the finding  of  the\tHigh\nCourt that  there was an attempt to commit rape on P.W. 1 by\nthe appellant. [291 G-H, 292 A-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 68
\nof 1977.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated 15th  November, 1976  of the  Gujarat  High  Court  in
\nCriminal Appeal No. 832 of 1976.\n<\/p>\n
     R.H. Dhebar and B. V. Desai for the Appellant.
\n     R.N. Poddar for the Respondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n284<\/span>
\n     THAKKAR, J. To say at the beginning what we cannot help
\nsaying at the end: human goodness has limits-human depravity
\nhas none. The need of the hour however, is not exasperation.\n<\/p>\n
     The need  of the hour is to mould and evolve the law so
\nas to  make it\tmore sensitive and responsive to the demands
\nof the time in order to resolve the basic problem: “Whether,
\nwhen, and to what extent corroboration to the testimony of a
\nvictim of  rape is  essential to  establish the charge.” And
\nthe problem has special significance for the women in India,
\nfor, while  they have  often been idolized, adored, and even
\nworshipped, for\t ages they  have  also\tbeen  exploited\t and
\ndenied even  handed justice-Sixty  crores  anxious  eyes  of
\nIndian a  women are  therefore focussed on this problem. And
\nto that problem we will presently address ourselves.\n<\/p>\n
     The learned Sessions Judge Mehsana found the appellant,
\na  Government\tservant\t employed   in\tthe  Sachivalaya  at
\nGandhinagar,   guilty\tof   serious   charges\t of   sexual
\nmisbenaviour with  two young girls (aged about 10 or 12) and
\nconvicted the  appellant for  the offence of rape, outraging
\nthe modesty  of women,\tand wrongful confinement. The appeal
\ncarried to  the High  Court substantially  failed. The\tHigh
\nCourt affirmed the order of conviction under Sec. 342 of the
\nIndian Penal  Code for\twrongfully confining  the girls. The
\nHigh Court also sustained the order of conviction under Sec.
\n354 of\tthe Indian  Penal Code\tfor outraging the modesty of
\nthe two\t girls. With  regard to\t the more  serious charge of
\nrape on\t one of\t the girls,  the  High\tCourt  came  to\t the
\nconclusion that\t what was  established by  evidence  was  an
\noffence\t of   attempt  to  commit  rape\t and  not  of  rape.
\nAccordingly the\t conviction under  Sec. 376 was altered into
\none under  Sec. 376  read with\tSec. 511 of the Indian Penal
\nCode. The  appellant has  preferred the\t present appeal with
\nspecial leave.\n<\/p>\n
     The incident  occurred on Sunday, September 7, 1975, at
\nabout 5.30  p.m. at the house of the appellant. The evidence
\nof P.W. 1 and P.W.  2 shows  that they\twent to the house of
\nthe appellant  in order\t to meet  his daughter (belonging to
\ntheir own  age group  of 10  or 12) who happened to be their
\nfriend. The  appellant induced\tthem to\t enter his  house by
\ncreating an impression that she was at home, though, in fact
\nshe was not. Once they were inside, the appellant closed the
\ndoor, undressed\t himself in  the presence of both the girls,
\nand exposed  himself. He  asked P.W.  2\t to  indulge  in  an
\nindecent act.  P.W. 2  started crying  and fled\t from there.
\nP.W. 1
\n285<\/span>
\nhowever could not escape. She was pushed into a cot, and was
\nmade to\t undress. The appellant sexually assaulted her. P.W.
\n1 was  in distress  and was  weeping as\t she went  out.\t She
\nhowever\t could\tnot  apprise  her  parents  about  what\t had
\ntranspired because  both of  them were\tout  of\t Gandhinagar
\n(they returned after 4 or 5 days).\n<\/p>\n
     It appears\t that the  parents of  P.W.  1\tas  well  as
\nparents of  P.W. 2  wanted  to\thush  up  the  matter.\tSome
\nunexpected  developments   however  forced  the\t issue.\t The
\nresidents of  the locality  somehow came  to know  about the
\nincident.  And\t an  alert   Woman  Social  Worker,  P.W.  5
\nKundanben, President  of the  Mahila Mandal  in\t Sector\t 17,
\nGandhinagar, took  up the  cause. She  felt indignant at the
\nway in\twhich the appellant had misbehaved with two girls of
\nthe age of his own daughter, who also happened to be friends
\nof his\tdaughter, taking  advantage of\ttheir  helplessness,
\nwhen no one else was present. Having ascertained from P.W. 1
\nand P.W.  2 as\tto what\t had transpired,  she felt  that the
\nappellant  should   atone  for\this  infamous  conduct.\t She
\ntherefore called  on the  appellant at his house. It appears
\nthat about  500 women of the locality had also gathered near
\nthe  house   of\t the   appellant.  Kundanben  requested\t the
\nappellant to apologize publicly in the presence of the woman
\nwho had\t assembled there.  If the appellant had acceded to .
\nthis request possibly the matter might have rested there and
\nmight not  have come  to the  court. The appellant, however,
\nmade it a prestige issue and refused to apologize. Thereupon
\nthe police  was contacted and a complaint was lodged by P.W.
\n1 on  19 Sept.\t1975. P.W.  1 was  then sent  to the Medical
\nofficer for  medical examination.  The\tmedical\t examination
\ndisclosed that there was evidence to show that an attempt to
\ncommit rape  on her  had been  made a  few  days  back.\t The
\nSessions Court\tas well\t as the High Court have accepted the
\nevidence and  concluded that  the appellant  was  guilty  of
\nsexual misbehavior  with P.W.  1 and  P.W. 2  in the  manner
\nalleged by  the prosecution  and established by the evidence
\nof P.W.\t 1 and P.W. 2. Their evidence has been considered to
\nbe worthy  of acceptance  lt is\t a  pure.  finding  of\tfact
\nrecorded by  the Sessions  Court and  affirmed by  the\tHigh
\nCourt. Such  a concurrent finding of fact cannot be reopened
\nin an  appeal by special leave unless it is established: (1)
\nthat the  finding is  based on\tno evidence  or (2) that the
\nfinding is  perverse, it  being such as no reasonable person
\ncould have  arrived at even if the evidence was taken at its
\nface value  or\t(3)  the  finding  is  based  and  built  on
\ninadmissible evidence,\twhich  evidence,  if  excluded\tfrom
\nvision, would  negate the  prosecution case or substantially
\ndiscredit
\n286<\/span>
\nor impair it or (43 some vital piece of evidence which would
\ntilt  the   balance  in\t favour\t of  the  convict  has\tbeen
\noverlooked, disregarded,  or wrongly  discarded. The present
\nis not\ta case\tof such\t a  nature.  The  finding  of  guilt
\nrecorded by the Sessions Court as affirmed by the High Court
\nhas  been   challenged\tmainly\t on  the   basis  of   minor
\ndiscrepancies  in  the\tevidence.  We  do  not\tconsider  it
\nappropriate or\tpermissible to\tenter upon  a reappraisal or
\nreappreciation of  the evidence\t in the context of the minor
\ndiscrepancies painstakingly  highlighted by  learned counsel
\nfor the\t appellant. Over  much importance cannot be attached
\nto minor discrepancies. The reasons are obvious:\n<\/p>\n
     (1)   By and large a witness cannot be expected to
\n\t  possess a  photographic memory  and to recall
\n\t  the details of an incident. It is not as if a
\n\t  video tape is replayed on the mental screen.
\n     (2)   ordinarily it  so happens  that a witness is
\n\t  overtaken by\tevents. The  witness could  not
\n\t  have\tanticipated  the  occurrence  which  so
\n\t  often has  an element of surprise. The mental
\n\t  faculties therefore  cannot be expected to be
\n\t  attuned to absorb the details.\n<\/p><\/blockquote>\n
     (3)   The powers of observation differ from person
\n\t  to person.  What one\tmay notice, another may
\n\t  not. An  object or  movement might emboss its
\n\t  image on  one person’s  mind whereas it might
\n\t  go unnoticed on the part of another.
\n     (4)   By and large people cannot accurately recall
\n\t  a conversation  and reproduce\t the very words
\n\t  used by  them or heard by them. They can only
\n\t  recall the  main purport of the conversation.
\n\t  It is unrealistic to expect a witness to be a
\n\t  human tape recorder.\n<\/p><\/blockquote>\n
     (5)   In regard  to exact\ttime of an incident, or
\n\t  the time  duration of an occurrence, usually,
\n\t  people make  their estimates by guess work on
\n\t  the spur  of the  moment 1.1\tat the\ttime of
\n\t  interrogation. And  one cannot  expect people
\n\t  to make very precise or reliable estimates in
\n\t  such matters.\t Again, it depends on the time-
\n\t  sense of individuals which varies from person
\n\t  to person.\n<\/p><\/blockquote>\n
287<\/span><\/p>\n
     (6)   Ordinarily a\t witness cannot\t be expected to
\n\t  recall  accurately  the  sequence  of\t events
\n\t  which take  place in rapid succession or in a
\n\t  short time  span. A  witness is liable to get
\n\t  confused, or mixed up when interrogated later
\n\t  on.\n<\/p><\/blockquote>\n
     (7)   A witness, though wholly truthful, is liable
\n\t  to be\t overawed by  the court\t atmosphere and
\n\t  the  piercing\t  cross\t examination   made  by
\n\t  counsel and  out of nervousness mix up facts,
\n\t  get confused regarding sequence of events, or
\n\t  fill up  details from imagination on the spur
\n\t  of the  moment. The sub-conscious mind of the
\n\t  witness sometimes  so operates  on account of
\n\t  the  fear   of  looking   foolish  or\t  being
\n\t  disbelieved though  the witness  is giving  a
\n\t  truthful and honest account of the occurrence
\n\t  witnessed by\thim-Perhaps it\tis a  sort of a
\n\t  psychological defence\t mechanism activated on
\n\t  the spur of the moment.<\/p><\/blockquote>\n
     Discrepancies which do not go to the root of the matter
\nand shake  the basic  version  of  the\twitnesses  therefore
\ncannot be  annexed with\t undue importance.  More so when the
\nall important “probabilities-factor” echoes in favour of the
\nversion narrated by the witnesses.\n<\/p>\n
     It is  now time  to tackle the pivotal issue as regards
\nthe need  for insisting on corroboration to the testimony of
\nthe prosecutrix in sex-offences. This Court, in Rameshwar v.
\nThe State  of Rajasthan,<\/a>(1)  has declared that corroboration
\nis not the sine que-non for a conviction in a rape case. The
\nutterance of  the Court in Rameshwar may be replayed, across
\nthe time-gap  of three\tdecades which have whistled past, in
\nthe inimitable\tvoice of  Vivian Bose,\tJ. who spoke for the
\nCourt
\n\t  The rule,  which according  to the  cases has
\n     hardened  into   one   of\t law,\tis   not   that
\n     corroboration is  essential before\t there can be a
\n     conviction\t  but\t that\t the\tnecessity    of
\n     corroboration, as\ta matter  of  prudence,\t except
\n     where the\tcircumstances make  it safe to dispense
\n     with it,  must be present to the mind of the judge
\n     …….\n<\/p>\n
288<\/span><\/p>\n
     The only rule of law is that this rule of prudence
\n     must be  present to  the mind  of the Judge or the
\n     jury as  the case\tmay be\tand be\tunderstood  and
\n     appreciated by  him or  them. There  is no rule of
\n     practice  that  there  must,  in  every  case,  be
\n     corroboration before  a conviction\t can be allowed
\n     to stand.”\n<\/p>\n
     And whilst\t the sands  were running  out  in  the\ttime
\nglass, the  crime graph\t of offences  against women in India
\nhas been  scaling new  peaks from day to day. That is why an
\nelaborate rescanning  of the jurisprudential sky through the
\nlenses of ‘logos’ and ‘ethos’, has been necessitated.\n<\/p>\n
     In the  Indian setting, refusal to act on the testimony
\nof  a\tvictim\tof   sexual  assault   in  the\t absence  of
\ncorroboration as  a rule,  is adding  insult to\t injury. Why
\nshould the  evidence of\t the girl or the woman who complains
\nof rape\t or sexual  molestation be  viewed with\t the aid  of
\nspectacles fitted  with lenses\ttinged with doubt, disbelief
\nor suspicion  ? To  do so  is to  justify the charge of male
\nchauvinism in  a male dominated society. We must analyze the
\nargument in  support  of  the  need  for  corroboration\t and
\nsubject it  to relentless and remorseless cross-examination.
\nAnd we\tmust do so with a logical, and not an opiniated, eye
\nin the\tlight of  probabilities with our feet firmly planted
\non the\tsoil of\t India and  with our  eyes focussed  on\t the
\nIndian horizon.\t We must  not be  swept off  the feet by the
\napproach made  in the Western World which has its own social
\nmileu, its  own social mores, its own permissive values, and
\nits own\t code  of  life.  Corroboration\t may  be  considered
\nessential to  establish a  sexual offence in the backdrop of
\nthe social  ecology of\tthe  Western  World.  It  is  wholly
\nunnecessary to\timport the  said concept on a turn-key basis
\nand to\ttransplate it  on the  Indian soil regardless of the
\naltogether different atmosphere, attitudes, mores, responses
\nof the Indian Society and its profile. The identities of the
\ntwo worlds  are different.  The solution  of problems cannot
\ntherefore be  identical. It  is conceivable  in the  Western
\nSociety that  a female may level false accusation as regards
\nsexual molestation  against a  male for several reasons such
\nas:\n<\/p>\n
     (1)   The female  may be  a ‘gold\tdigger’ and may
\n\t  well have an economic motive to extract money
\n\t  by holding  out the  gun  of\tprosecution  or
\n\t  public exposure.\n<\/p><\/blockquote>\n
289<\/span><\/p>\n
     (2)   She\tmay  be\t suffering  from  psychological
\n\t  neurosis and\tmay seek  an  escape  from  the
\n\t  neurotic prison  by phantasizing or imagining
\n\t  a situation where she is desired, wanted, and
\n\t  chased by males.\n<\/p><\/blockquote>\n
     (3)   She may  want to  wreak vengence on the male
\n\t  for real  or imaginary wrongs. She may have a
\n\t  grudge against a particular male, or males in
\n\t  general, and\tmay have  the design  to square
\n\t  the account.\n<\/p><\/blockquote>\n
     (4)   She may  have  been\tinduced\t to  do\t so  in
\n\t  consideration\t of   economic\trewards,  by  a
\n\t  person interested in placing the accused in a
\n\t  compromising\tor   embarassing  position,  on
\n\t  account of personal or political vendatta.
\n     (5)   She may do so to gain notoriety or publicity
\n\t  or to\t appease her  own ego or to satisfy her
\n\t  feeling of  self-importance in the context of
\n\t  her inferiority complex.\n<\/p><\/blockquote>\n
     (6)  She may do so on account of jealousy.
\n     (7)  She may do so to win sympathy of others.
\n     (8)  She may do so upon being repulsed.<\/p><\/blockquote>\n
     By and  large these  factors are not relevant to India,
\nand the\t Indian conditions.  Without the  fear of making too
\nwide a statements or of overstating the case, it can be said
\nthat rarely  will a  girl or  a woman  in India\t make  false
\nallegations of\tsexual assault on account of any such factor
\nas has\tbeen just  enlisted. The statement is generally true
\nin the\tcontext of  the urban  as also\trural Society. It is
\nalso by\t and large true in the context of the sophisticated,
\nnot so sophisticated, and unsophisticated society. Only very
\nrarely can  one conceivably  come across an exception or two
\nand  that  too\tpossibly  from\tamongst\t the  urban  elites.
\nBecause: (1)  A girl  or a woman in the tradition bound non-
\npermissive Society  of India  would be\textremely  reluctant
\neven to\t admit that  any incident which is likely to reflect
\non  her\t chastity  had\tever  occurred.\t (2)  She  would  be
\nconscious of  the danger  of being ostracised by the Society
\nor being  looked down  by the  Society including  by her own
\nfamily members,\t relatives, friends  and neighbours. (3) She
\nwould have to brave the
\n290<\/span>
\nwhole world.  (4) She would face the risk of losing the love
\nand respect  of her  own husband  and near relatives, and of
\nher matrimonial\t home and  happiness being shattered. (S) If
\nshe is\tunmarried, she\twould apprehend\t that  it  would  be
\ndifficult to secure an alliance with a suitable match from a
\nrespectable or\tan acceptable  family. (6)  It would  almost
\ninevitably and\talmost invariably  result in  mental torture
\nand suffering  to herself.  (7) The fear of being taunted by
\nothers will  always haunt  her. (8) She would feel extremely
\nembarrassed in\trelating the  incident to  others being over
\npowered by  a feeling  of shame on account of the upbringing
\nin a  tradition bound  society where  by and  large  sex  is
\ntaboo. (9)  The natural inclination would be to avoid giving
\npublicity to  the incident  lest the  family name and family
\nhonour is  brought into\t controversy. (10) The parents of an
\nunmarried girl\tas also\t the  husband  and  members  of\t the
\nhusband’s family  of a\tmarried woman  would also more often
\nthan not,  want to avoid publicity on account of the fear of
\nsocial stigma on the family name and family honour. (11) The
\nfear  of   the\tvictim\t herself  being\t  considered  to  be
\npromiscuous or\tin some\t way responsible  for  the  incident
\nregardless of  her innocence.  (12) The\t reluctance to\tface
\ninterrogation by  the  investigating  agency,  to  face\t the
\ncourt, to  face the  cross examination\tby Counsel  for\t the
\nculprit, and  the risk\tof  being  disbelieved,\t acts  as  a
\ndeterrent.\n<\/p>\n
     In\t view\tof  these  factors  the\t victims  and  their
\nrelatives are  not too\tkeen to\t bring the culprit to books.
\nAnd when  in the  face of these factors the crime is brought
\nto light  there is  a built-in\tassurance that the charge is
\ngenuine rather\tthan fabricated..  On principle the evidence
\nof a victim of sexual assault stands on par with evidence of
\nan injured  witness. Just  as a witness who has sustained an
\ninjury (which is not shown or believed to be self inflicted)
\nis the\tbest witness in the sense that he is least likely to
\nexculpate the  real offender,  the evidence of a victim of a
\nsex-offence  is\t  entitled  to\t great\tweight,\t absence  of
\ncorroboration notwithstanding.\tAnd while  corroboration  in
\nthe form  of eye  witness account  of an independent witness
\nmay often  be forthcoming  in physical\tassault cases,\tsuch
\nevidence cannot\t be expected  in sex offences, having regard
\nto the\tvery nature  of the  offence. It  would therefore be
\nadding insult  to injury  to insist on corroboration drawing
\ninspiration from  the rules  devised by\t the courts  in\t the
\nWestern World.\tObseisance to  which has  perhaps  become  a
\nhabit presumably on account of the colonial hangover. We are
\ntherefore of  the opinion that if the evidence of the victim
\ndoes  not   suffer  from   any\tbasic\tinfirmity,  and\t the
\nprobabilities-factors  does   not  render   it\tunworthy  of
\ncredence, as a general
\n291<\/span>
\nrule, there  is no  reason to insist on corroboration except
\nfrom the  medical evidence,  where,  having  regard  to\t the
\ncircumstances of  the case, medical evidence can be expected
\nto be  forthcoming, subject  to the following qualification:
\nCorroboration may  be insisted\tupon  when  a  woman  having
\nattained majority  is found  in a  compromising position and
\nthere is  a  likelihood\t of  her  having  levelled  such  an
\naccusation on  account of the instinct of self-preservation.
\nOr when\t the ‘probabilities-factor’  is found  to be  out of
\ntune.\n<\/p>\n
     Now we return to the facts of the present case. Testing
\nthe evidence  from this\t perspective, the evidence of P.W. 1
\nand P.W. 2 inspires confidence. The only motive suggested by
\ndefence was  that there was some history of past trade union
\nrivalry between\t the father  of P.W. 2 and the appellant. It
\nmust be\t realized that having regard to the prevailing mores
\nof the Indian Society, it is inconceivable that a girl of 10
\nor 12  would invent  on her  own a  false  story  of  sexual
\nmolestation. Even at the age of 10 or 12 a girl in India can
\nbe trusted  to be  aware of  the fact that the reputation of
\nthe entire  family would  be jeopardised,  upon such a story
\nbeing spread.  She can be trusted to-know that in the Indian
\nSociety her  own  future  chances  of  getting\tmarried\t and
\nsettling down in a respectable or acceptable family would be
\ngreatly marred\tif any\tsuch story calling into question her
\nchastity were to gain circulation in the Society. It is also
\nunthinkable  that   the\t parents  would\t tutor\ttheir  minor
\ndaughter to  invent such  a story in order to wreak vengence
\non someone.  They would not do so for the simple reason that
\nit would  bring down  their own social status in the Society
\napart from  ruining the future prospects of their own child.
\nThey would also be expected to be conscious of The traumatic
\neffect on  the psychology  of the  child and  the disastrous
\nconsequences likely  to ensue when she grows up. She herself
\nwould prefer to suffer the injury and the harassment, rather
\nthan to\t undergo  the  harrowing  experience  of  lodging  a
\ncomplaint in  regard to\t a  charge  reflecting\ton  her\t own
\nchastity. We  therefore refuse to countenance the suggestion
\nmade by\t the defence  that the\tappellant has  been  falsely
\nroped in  at the  instance of  the father  of P.W. 2 who was
\nsupposed to  have some\tenmity against\tthe appellant. It is
\nunthinkable that  the parents  of P.W.\t2 would tutor her to
\ninvent a  story of  sexual misbehavior\ton the\tpart of\t the
\nappellant merely  in order  to implicate  him on  account of
\npast trade  union  rivalry.  The  parents  would  have\talso
\nrealized the danger of traumatic effect on the psychology of
\ntheir daughter.\t In fact it would have been considered to be
\nextremely distasteful to
\n292<\/span>
\nbroach the subject. It is unthinkable that the parents would
\ngo to  the length  of inventing a story of sexual assault on
\ntheir own  daughter and\t tutor her to narrate such a version
\nwhich would  bring down\t their own  social status  and spoil
\ntheir reputation  in Society. Ordinarily no parents would do
\nso in  Indian society as at present. Under the circumstances
\nthe defence  version that  the father  of P.W. 2 had tutored
\nher to concoct a false version in order to falsely implicate
\nthe appellant  must  be\t unceremoniously  thrown  overboard.
\nBesides, why  should the  parents of  P.W. 1  mar the future
\nprospects of  their own\t daughter ?  It is  not alleged that
\nP.W. 1 had any motive to falsely implicate the appellant. So
\nalso it\t is not\t even suggested\t why P.W.  1 should  falsely
\nimplicate  the\t appellant.  From   the\t  stand\t  point\t  of
\nprobabilities  it   is\tnot   possible\tto  countenance\t the
\nsuggestion that a false story has been concocted in order to
\nfalsely\t implicate   the  appellant.  The  medical  evidence
\nprovided by  P.W 6,  Dr. Hemangini Desai, fully supports the
\nfinding of  the High  Court that  there was  an\t attempt  to
\ncommit\trape   on  P.W.\t  1.  Under  the  circumstances\t the
\nconclusion reached  by the High Court cannot be successfully
\nassailed.\n<\/p>\n
     The only  question that now remains to be considered is
\nas regards  the sentence.  The appellant  has behaved  in  a
\nshockingly indecent  manner. The  magnitude of\this  offence
\ncannot be  overemphasized m  the context of the fact that he
\nmisused his  position as a father of a girl friend of P.W. 1
\nand- P.W.  2. P.W.  1 and  P.W. 2  were visiting  his  house
\nunhesitatingly because\tof the\tfact that  his daughter\t was
\ntheir friend.  To have\tmisused this  position\tand  to-have
\ntricked them  into entering  the house,\t and to\t have  taken
\nundue advantage\t of the\t situation  by\tsubjecting  them  to
\nsexual harassment,  is a  crime of which a serious view must
\nbe taken.  But for the following facts and circumstances, we
\nwould  not   have  countenanced\t  the  prayer  for  leniency
\naddressed to  us on  behalf of\tthe appellant.\tThe  special
\ncircumstances are  these. The  appellant has lost his job in
\nview of\t the conviction\t recorded by  the  High\t Court.\t The
\nincident occurred some 7 years back. The appeal preferred to
\nthe High  Court was dismissed in November 15, 1976. About 6-
\n1\/2 years  have elapsed\t thereafter. In the view that we are
\ntaking the appellant will have to be sent back to jail after
\nan interval  of about  6-1\/2 years.  The appellant must have
\nsuffered great\thumiliation in the Society. The prospects of
\ngetting a  suitable match  for his own daughter have perhaps
\nbeen marred in view of the stigma in the wake of the finding
\nof guilt  recorded against  him in  the context\t of such  an
\noffence.\n<\/p>\n
293<\/span><\/p>\n
Taking\tinto   account\tthe   cumulative  effect   of  these
\ncircumstances, and  an overall view of the matter, we are of
\nthe opinion  that the  ends of\tJustice will be satisfied if
\nthe substantive\t sentence imposed  by the High Court for the
\noffence under  Sec. 376\t read with  Sec. 511 is reduced from
\none of\t2-1\/2 years’  R. I.,  to one  of 15 months’ R.I. The
\nsentence of  fine, and\tin default  of fine,  will be course
\nremain undisturbed.  So also  the sentence  imposed  in\t the
\ncontext of  the offence\t under Sec.  342 and  Sec 354 of the
\nIndian\tPenal  Code  will  remain  intact.  Subject  to\t the
\nmodification in\t the sentence  to the  aforesaid extent\t the
\nappeal fails  and is dismissed The appellant shall surrender
\nin order  to undergo the sentence. The bail bonds will stand
\ncancelled.\n<\/p>\n
S.R.\t\t\t\t\t   Appeal dismissed.\n294<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983 Equivalent citations: 1983 AIR 753, 1983 SCR (3) 280 Author: M Thakkar Bench: Thakkar, M.P. (J) 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-183840","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bharwada-bhoginbhai-hirjibhai-vs-state-of-gujarat-on-24-may-1983\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983 - 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