EVIDENCE AS TO IMMORAL CHARACTER OF RAPE VICTIM
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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].
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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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