LexBHARWADA BHOGINBHAI HIRJIBHAI versus STATE OF GUJARAT
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A B c BHARWADA BHOGJNBHAI HIR]IBHAt v. STATE OF GUJARAT May 24, 1983 [A.P. SEN AND M.P. THAKKAR, JJ.] A. Constitution of India, 1~50, Article 136 read with Order XXf of the Suprenre Court Rules, 1966-Concurrent finding of fact, when can be reopened by the Supre111e Court in an appeal by Special Leave, explained. B. Evidence-.Reappreciation of evidence in the context of 111inor dis- crePancies, explained. C. Evidence-Corroborative e1•ide11ce in rape cases-Whether, when and to wi1at extent corroboration to tire testilnony of a .victi111 of rape is essential to D establish the charge. E F G H The appc1lant, a government servant en1ploycd jn thC Sacl1ivalaya 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 convicte.d 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 affinned the orders of conviction under. section 342 T.P C. for wrongfully confining ·the giils 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 ca1ne to the con- clusion that what was established by evidence was an _offence of attempt to comffiit rape and not of rape. Accordingly, the conviction under Section 376 was altered into one under Section 376 read with Section 511 l.P.C. ' ~ Disn1issing 1he appeal , and maintaining the ~onviction on all counts, Court HELD : 1:1. A concurrent finding of fact as recorded by the Sessions Couit 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 fin~ing is perverse, it being such as no reasonable person collld have arrived at even if the evidence was taken at its face value or (3) the finding is based and built on inadmissibl_e evidence, which evidence, if exi;:luded from vision, would negate the prosecution case or substantially discredit or in1pair it or (4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or \Vrongly discarded. The present ~s not a case of such a nature. [285 G-lJ, 286 A] • 1:2. Discrepancies which do not go to the root of the matter and shake the basic version of the witnes,es therefore cannot be annexed with undue ·-· -!---- --- - __.,._. illiARWADA v. GUJARAT 281 importance. More s_o when the- all imporlant ''probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are : (1) By and large a \.Y_itness cannot be expected fo 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 hive 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 1nay notic~, another may not. An object or movement might en1boss its in1age 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 n1ain purport of the conversation. It is unrealistic to exp·ect a \Vitness to be a human tape recorder; (5) 111 regard to exact time of an incident, or ·the time duration of an occurrance, usual.ly, people make their estimates by guess work on the spur of_ the 1non1ent 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 'timesensc' of individuals which varies from person to person. (6) Ordinarily a witness cannot be expecled 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 n1ix up facts; get confused regarding sequence of events
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