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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

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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