NATIONAL LEGAL RESEARCH DESK
Bharwada Bhoginbhai Hirjibhai v State of Gujarat Citations: 1983 AIR 753, 1983 SCR (3) 280
Herein the appellant had, as the Supreme Court observed, behaved in a shockingly indecent manner. He misused his position as a father of a girl friend of the victims, who 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. On the basis of minor discrepancies the Court did not open the evidence again, and observed as follows:
(1) By and large a witness cannot be expected topossess a photographic memory and to recallthe details of an incident.
(2) Ordinarily the occurrence, so often having an element of surprise, “the mentalfaculties therefore cannot be expected to beattuned to absorb the details.”
(3) The powers of observation differ from personto person.
(4) By and large people cannot accurately recalla conversation and reproduce the very wordsused by them or heard by them.
(5) In regard to exact time of an incident, orthe time duration of an occurrence, usually,people make their estimates by guess work onthe spur of the moment.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events and may getconfused, or mixed up when interrogated lateron.
(7) A witness, though wholly truthful, is liableto be overawed by the court atmosphere andthe piercing cross examination made bycounsel and out of nervousness mix up facts,get confused regarding sequence of events, orfill up details from imagination on the spurof the moment. Discrepancies which do not go to the root of the matterand shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when theall-important “probabilities-factor” echoes in favour of theversion narrated by the witnesses.
Further, on corroboration, the SC stated that “Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid ofspectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of malechauvinism in a male dominated society.” It also straightforwardly commented that “On principle the evidenceof a victim of sexual assault stands on par with evidence ofan injured witness. Just as a witness who has sustained aninjury (which is not shown or believed to be self inflicted)is the best witness in the sense that he is least likely toexculpate the real offender, the
The Court also discussed the factors due to which a woman would not want to bring to fore a false case that she has been sexually wronged and stated that “…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…”.