Bharwada Bhoginbhai Hirjibhai v State of Gujarat

Facts

The accused, a government servant at the Gandhinagar Sachivalaya, lured two young girls (aged about 10-12 years) into his house on 7 September 1975 by falsely telling them his daughter was at home. Once inside he bolted the door, exposed himself, made one girl perform an indecent act and pushed the other onto a cot and undressed her, attempting to rape her. The trial court and High Court convicted him; he appealed to the Supreme Court by special leave.

Issues

• Whether concurrent findings of fact recorded by the trial court and High Court can be reopened in a special-leave appeal.
• Whether corroboration of the prosecutrix's testimony is essential, as a rule, for a conviction in a rape/sexual-assault case in the Indian setting.
• Whether minor discrepancies in the testimony of child witnesses justify rejecting their otherwise reliable evidence.

Arguments

The defence contended that minor discrepancies in the girls' statements destroyed their credibility, that the father of one victim had a trade-union rivalry with the accused suggesting false implication, and that there was no independent corroboration. The prosecution argued that the children's testimony was credible and internally consistent, that medical evidence supported attempt to rape, and that Indian social conditions make false rape allegations by minor girls highly improbable.

Held

The Court declined to reopen the concurrent findings, holding they could be disturbed only if based on no evidence, perverse, founded on inadmissible evidence, or where vital evidence was overlooked. It held that corroboration is not the sine qua non for conviction in a rape case, and that refusing to act on a victim's testimony in the absence of corroboration, as a rule, amounts to 'adding insult to injury' in the Indian setting. The Court reasoned that the Western insistence on corroboration cannot be transplanted onto Indian soil, because the stigma, social ostracism, family dishonour and trauma attached to rape make false allegations by Indian women highly unlikely. Minor discrepancies not going to the root of the matter were held to be natural and insufficient to discredit the witnesses. The conviction was upheld under Sections 342, 354 and 376 read with 511 IPC, though the sentence was reduced from 2.5 years to 15 months rigorous imprisonment.

Ratio decidendi

In the Indian socio-cultural context the evidence of a victim of sexual assault stands on par with that of an injured witness, and corroboration is not a sine qua non for conviction; if her testimony inspires confidence it can by itself sustain a conviction, and minor discrepancies that do not shake the basic version are to be ignored.

Significance

A landmark that rejected the colonial/Western corroboration rule in rape cases and recognised the social reality that Indian women rarely make false rape allegations; consistently followed and built upon in State of Maharashtra v Chandraprakash Kewalchand Jain (1990) and State of Punjab v Gurmit Singh (1996). Under the new code the same offences sit in the BNS 2023 (rape — Sections 63-64, attempt — Section 62, assault to outrage modesty — Section 74, wrongful confinement — Section 127) with the competency-of-witness rule now in Section 124 BSA 2023, and the principle that a prosecutrix's sole testimony can support conviction remains good law.

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