Courts of law, as well as commentators, have often found that allegations of sexual offense against a person are false. This may be attributed to the fact that sexual offences are some of the most heinous offences that can be committed, and the testimony of a prosecutrix in such cases should be given significant evidentiary weightage, especially since the crime is of a secluded nature and the possibility of finding any third party witnesses is not very high.[1]
On the other hand, since so much weightage is given to the
testimony of the prosecutrix, it, unfortunately, also becomes easier to convict
a person of such an offence. This may be done out of some personal vendetta, or
even because of some underlying psychological problems that the prosecutrix may
be suffering from.[2]
The main question that arises out of the nature and the
wording of the law is how much weightage should be given to the testimony of
the prosecutrix in cases of sexual offences and when corroboration of such
testimony through additional evidence is required.
THE STATUTORY POSITION
The first, and most important provision that must be referred
to is section 118 of the Evidence Act.[3]
This provision clearly states that any person who is competent to testify can
do so before a court of law. Incompetency arises only out of unstable mental
conditions arising out of disease, old age, etc. This provision is further
explained by the Supreme Court in the context of the evidentiary value of the
testimony of a prosecutrix.
The position of law before the enactment of the 1983
Amendment Act[4]
was that a prosecutrix was treated almost as an accomplice to the crime of any
sexual offence, and was even subject to harsh treatment by the courts of law
and the investigative machinery. This is best evident in the barbaric judgment
pronounces by the Supreme Court of India in the Mathura Rape Case[5],
where the accused were acquitted due to the presumption by the court that
there was consent, as the victim was sexually active with another person. This
unintelligent reasoning given by the court resulted in an amendment to section
114A of the Evidence Act. The amended provision now provided that if the
prosecutrix in her testimony stated that there was no consent, the courts were
also to presume this fact in moving forward with the proceedings. Even though
this amendment was brought about, the position of the courts of law hardly
changed, as even years after the amendment, the Delhi High Court in Mohd.
Habib v. State equated non existence of injury marks to consent.[6]
“The attitude towards victims of sexual
offences changed only by 1990, when in State of Mahrashtra v.
Charndraprakash Kewalchand Jain[7],
the Supreme Court explained the application of sections 118 and 114A to the
testimony of the prosecutrix. The judgment clearly stated that a prosecutrix of
a sexual offence cannot be treated on the same grounds as an accomplice, but is
in fact a victim of a heinous crime. The weight attached to her testimony must
be the same as that attached to an injured victim subject to any other crime.
The court even went on to say that since the Evidence Act does not require any
corroboration, it is not necessary at all. The court must only keep in mind
that it must take in account the facts and circumstances of the case since it
is dealing directly with a person interested in the outcome of the proceedings.
Thus, it concluded that the court can convict a person accused of a sexual offence
based only on the testimony of the prosecutrix, especially if the court is of
the prima facie view that the testimony is trustworthy.”
This judgment is a huge paradox to the judgment given in the
Mathura case, which was a case that can easily be described as an
example of a blatant disregard of the constitutional duties cast upon the
Supreme Court of India.
A BETTER VIEW TAKEN BY THE COURTS
Criminal law in India is based on an adversarial system
where the main aim of the courts is to take an impartial and accurate view of
the proceedings. Further, one of the fundamental principles that forms the
basis of our rigid criminal justice system is that “nine guilty may escape
but one innocent should not suffer.”[8]
On the other hand, if the guilt of an accused has been proved, an unmerited
acquittal will do absolutely no good to society.[9]
The Supreme Court, ironically, only a few years after the judgment in the Mathura
case held that refusal to act on the testimony of a prosecutrix in a case
of sexual assault in the absence of corroboration is equivalent to adding
insult to injury. It further deprecated the practice of viewing the testimony
given by the prosecutrix with suspicion and disbelief.[10]
“A sexual offence is a very serious crime
and can have a lasting physical and psychological impact on a victim, even
destroying their entire lives. The Supreme Court of India in State pf Punjab
v. Gurmeet Singh & Ors.[11]
has best explained the severe nature of sexual offences, which is the
reason behind the change on view of the courts as stated above. The court in
this case stated that a rapist not only physically harms or violates the
personal integrity and privacy of the victim, but degrades the very soul of the
helpless woman. It further held that it is the responsibility of all courts to
deal with such cases with sensitivity and utmost care. Minor contradictions
that help the accused’s case must not sway the decision of the court or throw
off the case of the prosecution.[12]
This case also stated that the fact that a woman comes forward to report such
an offence is in itself a big thing, as it requires a women to make a statement
that may inflict harm to her own dignity.[13]
This further adds to the vitality of the testimony given by the prosecutrix.”
These views taken by the courts, as reiterated above, are
almost the exact opposite of the view taken prior to 1983, when the amendment
to the Evidence Act was brought about. This has been a change for the better,
especially since it shows a change towards a more sensitive attitude of the
courts in dealing with cases of sexual offences. Such a change in attitude
inspires more confidence in women in reporting these unfortunate crimes and
bringing the wrongdoers to justice.
CROSS EXAMINATION OF PROSECUTRIX
It is generally portrayed through various forms of media
that criminal lawyers degrade the integrity of a female victim of sexual
offences by questioning her moral character. Prior to 2002, section 155(4) of
the Evidence Act[14]
allowed defendant’s lawyers to impeach the credibility of the testimony given
by the prosecutrix by proving that she is of a “general immoral character”. This
was the main recourse taken by the defendant’s who were accused of committing
sexual offences, and can also be considered to be one of the main reasons’
women, till this date, are reluctant to report such crimes. This was also one
of the most major fallacies in the Mathura Rape Case.
The Indian Evidence (Amendment) Act, 2002 omitted section
155(4) of the Act. Hence, criminal lawyers were not allowed to discredit the
victim’s statement by questioning her moral character. This was a huge step
towards a better and more sensitive approach towards a feminist criminal
jurisprudence. In order to further strengthen this position, the Act was
amended again in 2013, where section 53A was inserted.[15]
This provision states that where the question of consent arises in cases of
sexual offences, the evidence of the character of the victim or her past sexual
experience is absolutely irrelevant.[16]
These amendments, even though brought about very late, show
the intention of the legislature to move towards a more sensitive and feminist
criminal justice system. Further, these amendments negate the age-old tactic of
questioning the victim’s character in order to prove consent. These amendments
aid our current archaic criminal jurisprudence, which now needs to evolve into
a system that promotes equality in all respects, as well as strong condemnation
of all heinous offences.
CONCLUSION
As seen above, the law which was once archaic has now
evolved into a more equal and unbiased system. It may be argued that the
amendments and decisions of the courts have led to a system that is now biased
towards the women, especially since all it takes is a convincing testimony from
the prosecutrix to accuse a person of a sexual offence, but this is not the
case, as presented in a slew of recent Supreme Court Judgments.
In State of Himachal Pradesh v. Sanjay Kumar[17],
a person accused of rape under section 376 of the Indian Penal Code, 1860;
was acquitted as the evidence presented to the court showed a totally different
picture than the testimony of the prosecutrix.[18]
The court held that even though the law does not require that the testimony of
the prosecutrix should be corroborated with further evidence, the court may
require so if it is of the prima facie view that the testimony is not
trustworthy.[19]
In Md. Ali v. State of U.P.[20]
the accused was acquitted on the same ground, and it was held that even
though the testimony of the prosecutrix is placed on the highest pedestal, it
was found that all other evidence was contradictory to this testimony, which is
why the accused was acquitted.
The aforesaid cases show that the courts have always placed
the testimony of the witness on the highest pedestal, yet, if there is the
slightest doubt, the courts have always looked into corroborating evidence in
order to arrive at an accurate decision. This ensures that the wrong person is
never convicted for a crime he did not commit.
While the view of the Supreme Court has been that no woman
would make false allegations of commission of a sexual offence because if she
is found out, it would result in many adverse repercussions[21];
the criminal justice system cannot be administered based on this assumption. An
adversarial system always requires the court to stay impartial towards the
parties and arrive at the correct decision, which is why the courts have always
looked into corroborating evidences when required.
Lastly, it must also be said that the criminal justice
system has come a long way from the Mathura Rape Case. The courts have
started to develop a more sensitive attitude towards women who have been
subject to sexual offences, while the changes in the law have also aided to
bring about an effective feminist criminal jurisprudence in the nation.
[1] “Complainant
Credibility in Sexual Offense Cases: A Survey of Character Testimony and
Psychiatric Experts, The Journal of Criminal
Law and Criminology, Vol. 61, No. 1 (Mar. 1973) pp. 67-75, available at https://www.jstor.org/stable/1142657
(Last Accessed Feb. 5th, 2020)”
[2] Ibid.
[3] “Section
118, Indian Evidence Act, 1872.”
[4] “Criminal
Law (Amendment) Act, 1983.”
[5] “Tukaram
v. State of Maharashtra, (1979) 2 SCC 143”
[6] “Mohd.
Habib v. State, 1989 CriLJ 137, At paras 2, 3, 6, 16.”
[7] “State
of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, at para
16.”
[8] “State
of Rajasthan v. N.K. (2000) SCC (Crl.) 898”
[9] Ibid.
[10] “Bharwada
Bhoginbhai Hirijibhai Vs. State of Gujarat 1983 Crl.L.J. 1096.”
[11] “State
of Punjab v. Gurmeet Singh & Ors., (1996) 2 SCC 384.”
[12] Ibid.
[13] Ibid.
[14] “Section
155(4), Indian Evidence Act, 1872; omitted vide Indian Evidence (Amendment)
Act, 2002.”
[15] “Criminal
Law (Amendment) Act, 2013.”
[16] “Section
53A, Indian Evidence Act, 1872.”
[17] “State
of Himachal Pradesh v. Sanjay Kumar, AIR 2017 SC 835.”
[18] Ibid, at paras 18-32.
[19] Ibid.
[20] “Md.
Ali v. State of U.P., (2015) 7 SCC 272.”
[21] “Wahid
Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, at paras 19-22.”
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