Sunday, April 29, 2012



By Dr. T.Padma., LLM ., Ph D (Law)
It is now accepted that there are certain rights which are inevitable for the dignified existence of a human being.  That the dignity of human being should be respected seems to be the basic to all such rights.  There are several aspects of our criminal justice system where this idea is yet to permeate.  One such spot is Section 155(4) of the Evidence Act which allows the evidence as to past sexual experience of the prosecutrix in a trial for rape or attempt to ravish.  She may also be cross-examined as to her past unimmoral character so as to shake her credit as a witness.  The purpose of this article is to point out whether these provisions violate the dignity of the women victim of rape and violate her right to privacy.  It will further be argued that necessary amendments be made in the law to safeguard the human rights of the rape victims.

Under common law rules of procedure and evidence, which are recognized, by the Indian Evidence Act also, an accused person is presumed to be innocent and the State as a prosecutor is obliged to prove his guilt beyond any reasonable doubt.  In a trial for an offence of rape or attempt to ravish the prosecutrix, that is victim of such offence, is an important witness.  The principles of fair trial and rule of law, in so far as the administration of criminal justice is concerned, demand that a witness must be a truthful person to be relied upon and the accused may be given a fair chance to protect his own legitimate interest against the allegations leveled against him.  This can be done with the only weapon which he possesses, viz., the right to cross-examine his accusers.

The object of cross-examination is two-fold: firstly, the information concerning facts in issue or relevant to the issue that favourable to the party on whose behalf the cross-examination conducted, and secondly, to cast doubt upon the accuracy of the evidence-in-chief given against such party. As to the first prosecutrix may be questioned at cross-examination to prove a fact that a particular sexual act alleged by her to be rape was merely a sexual connection with her consent and with regard to the later she may confronted with such questions to challenge her veracity in order to show that she may not be believed at all.  Such question with regard her immoral character may be either to probe into her sexual connection with the accused person only or such connection with persons other than the accused.  As regards the second, the evidence may be led to impeach the credit of the prosecutrix.  In this connection Taylor has stated:

“On indictments for rape, or an attempt to commit that crime, while evidence of general bad character is admissible to show that the prosecutrix, like any other witness, ought not to be believed upon oath, proof that she is a reported prostitute would go far towards raising an inference that she yielded willingly to the prisoner’s embraces”.

Thus, in prosecutions for rape, the evidence as to general bad character of the prosecutrix admissible in defence whether she be cross-examined or not.  Under the English law she may be cross-examined as to the former sexual intercourse with the accused person to show consent.  If she denies the evidence may be led to contradict her and it may be proved independently. Prior to the 1976 amendment she might also be cross-examined as to her sexual intercourse with men other than the accused person, but she might, decline to answer. If she denied such intercourse it would not be independently proved.  This rule is now to be-considered in the light of Section 2 of the Sexual Offences (Amendment) Act, 1976 which imposes certain restrictions in this respect.  It provides that “except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of’ any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant’.  It has further been provided that such leave be sought in the absence of the jury and only to be granted on the ground of fairness to the defendant.

In brief, the position under English law emerges to be that “the accused may adduce evidence-in-chief concerning the complainant’s bad reputation for chastity, she may be cross-examined about her inter-course with other men and the accused; in the former, but not in the later event, her answer must be treated as final, but she may be contradicted by other evidence if she denies that she is a prostitute or a woman who has demanded money after consensual intercourse.  So far as sexual experience with men other than the defendant is concerned, no evidence on this subject may be adduced and no question about such experience may be asked of the complainant without the leave of the judge to be sought in the absence of the jury and only to be granted on the ground of fairness to the defendant.

However, a woman’s character for chastity is not admissible on a charge of  rape if she is below the age of consent and perhaps also on a charge of assault with intend to rape. In a prosecution for rape where consent is in issue evidence with regard to the past sexual experience of the prosecutrix with the accused person may be relevant under sections 8,9,11, and 14 of the Indian Evidence Act.  When it is shown that the prosecutrix on previous occasion(s) has had consensual sexual connections with the accused person it may be inferred that sexual act in question might also have taken place with her consent. Section 8 of the Evidence Act, inter alia, provides that the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent there to.  Therefore, when the consent or the prosecutrix in the proceeding in hand is a fact in issue or relevant fact the evidence as to her past sexual connection with the accused person becomes relevant under this section.  Such evidence may be relevant under section 11 of the Evidence Act under which a fact is relevant if it renders highly probable or improbable the existence of another fact in issue or relevant fact.  Thus where the issue is absence of the consent of the prosecutrix the previous sexual connection of the prosecutrix with the accused renders it highly improbable and is a relevant as fact showing the existence of a state the evidence under these section would be allowed only when the absence of consent is in issue and the permitted evidence must also relate to specific sexual acts with the accused only.  But the damaging and stringent provisions in this regard are embodied in sections 146 and 155 (4) of the Evidence Act.

Section 146 of the Evidence Act contains the provisions with regard to questions which may lawfully be asked from a witness in cross-examination.  The provisions are general in nature but they may prove stringent to a rape victim, particularly the provisions regarding asking any question which tend to test her veracity, or to shake her credit by injuring her character.  Besides being asked such questions tending to discredit she may be discredited by the evidence of the other persons to the effect that she was generally of immoral character when a man is prosecuted for rape or an attempt to ravish and the victim of such offence is the witness.  Therefore, these provisions of the Evidence Act permit asking of questions in cross-examination and adducing evidence as to past sexual experience of the prosecutrix with person other than the accused, it may fall in the second category in which case no evidence shall be given to contradict her.

The basis for incorporation of such provisions in the Evidence Act may be found in the illusory fact that a woman who is of general immoral character might have consented to the sexual act by the accused in a particular case.  How humiliating it is for a rape victim who is sought to be embarrassed by questions, or against whom evidence is adduced, about her sexual experience just not with the accused but with possible others for concluding whether she had consented to a particular sexual intercourse with the accused.  This provision is violative of the right to dignity.

So far as sexual experience with the accused is concerned, the assumption underlying the admissibility of such evidence would appear to be that once a woman has consented to a sexual relationship with a particular man, she is unlikely to dissent at a later stage,” Every act of sexual intercourse by a man with the same woman without her consent amounts to a distinct offence of rape every time.  Therefore, such an assumption may also be invoked even in the cases where a female is below the statutory age of consent and her consent is irrelevant.
Though the provisions of section 155(4) permit evidence as to general immoral character of the prosecutrix, yet the victim of the offence whose dignity has been wounded is made to bear the brunt of harassment and humiliation in a trial court.  This adds insult to the injury because of which most of the rape cases go unreported.  The Law Commission has rightly observed that “the victim of rape questioned at length very often feels humiliated, particularly at home or amongst neighbours or at school. Self-consciousness and shame, resulting from queries and adverse comments might event result in a permanent scar on her peace of mind and physic well-being”.

Therefore, it is suggested that section 155(4) of the Evidence Act may be amended so to exclude evidence as to the past sexual experience of the prosecutrix with persons other than the accused and to exclude evidence as to such experience even with the accused where she is below the statutory age of consent.  It should be confined to sexual relations with the accused and that to only where consent is in issue.  For similar reasons it is further suggested that section 146 of the Evidence Act needs amendment in the light of the recommendations of the Law Commission of India.  However, such questions or evidence may be allowed with the permission of the court only where it is necessary, in the opinion of the court, in the interest of justice.

        [Published in Supreme Court Journal  / WeeklyMarch-2010, Part -10.  & Published in ALT (Criminal)/Monthly February 2010, (1) Part –2].

Note: The Author is former Judge and written entire range of Law books under ‘Study in Law Series’ for 5/3 year law degree course.

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