18 Sep Evidence of Consent in Rape Trials
The prime question in any case of rape is the presence of consent of the victim. Questions on the character of the victim and the veracity of the allegation of ‘force’ made against the accused dominate these trials. Medical reports, testimonies of witnesses, and circumstantial evidence constitute important evidence in rape trials. In light of gender justice, the manner of presentation of certain evidence has overtime, been scrutinized by society and reformed by the legislature to overcome the notions that reflect a bias against women in the law. Considering these changes, this article will focus on the presentation of evidence related to the following issues:
- a) Presence of injury as evidence.
- b) Character of the woman to be proved.
- c) Corroboration of the victim’s account.
Changes in the Nature of Evidence Sought:
The landmark case that caused a hue and cry in the country on the conduct of rape trials was the Mathura Rape case[i]. In this case, the Apex Court held that the sexual intercourse with a girl, while she was in the custody of the police, did not amount to rape. The victim in this case, had approached the police station to give her statement to the police along with other family members but after recording the statement the family members were asked to leave the premises of the station and the girl was asked to stay back, after which she was raped by the police constables within the premises of the police station. Disregarding that the victim would have possibly experienced a sense of fear of the police, the Court reasoned that the absence of any injury marks on the body of the girl showed that she did not resist the sexual act of the policemen and had thus accorded her consent. Following this flawed interpretation presented by the Court, section 375 of the I.P.C was amended in 1983 to recognize other aggravated forms of rape and custodial rape as offences. Moreover, section 114-A was added to the Indian Evidence Act, 1872, according to which the presumption of absence of consent was made the rule. Following this judgment and the consequent public outrage, the Apex Court in the case of Rafiq v. State of Uttar Pradesh[ii] convicted the accused for the offence of rape even when the evidence showed that there was no injury on the body of the victim. These cases altered the course of judicial interpretation on consent by recognizing that the presence of an authority is a force of pertinent influence, and secondly, by laying down that the absence of injury on the body of the victim cannot be inferred to mean the presence of free consent of the victim.
Previously, it was a trend for the Courts to allow a debate on the question of the character of the victim in rape cases to enable the defense to take the plea that the victim was a woman of easy virtue or that she was habituated to sexual activities and had thus accorded her consent to the acts of the accused. This position was altered after the observation made by the Supreme Court in the case of Haryana v. Premchand[iii], wherein it was held that the character of the woman is not a factor to be considered by the court while awarding punishment to an accused of rape. This position of the court was reiterated in the case of Lillu v. State of Haryan[iv], where the Supreme Court maintained that the virtue of a woman does not give anyone the license to rape her. This position was further strengthened by the legislature through the Criminal Law (Amendment) Bill, 2003 wherein the proviso to section 146 of the Indian Evidence Act, was omitted and an explanation was added which prohibited the questioning of the victim’s “immoral character” or “previous sexual experience”.
In cases of rape, particularly custodial rape, it is almost impossible to get independent evidence to corroborate the testimony of the prosecutrix. The testimony of a victim of rape is thus admissible as evidence in court. It was observed by Justice A.M Ahmedi in the case of State of Maharashtra v.Chandraprakash Jain[v], that to insists on corroboration of the victim’s testimony, except in rare cases, is an insult to the victim and an addition to her injury. Through this interpretation, the courts have thus considered the sensitivity of such cases while dealing with the evidence. However, in doing so the courts must exercise caution, as observed by the Supreme Court in its ruling in the case of Dilip v.State of Madhya Pradesh[vi], wherein it is laid that though the testimony of the victim is admissible without corroboration, the infirmities in the testimony with regard to the other medical evidence and other evidence should not be ignored by the courts.
The above judicial rulings on different aspects of evidence in rape trials point out to the change in reasoning adopted by the courts while seeking proof in rape cases. Within the scope of this inquiry, it can be concluded that the changing nature of the evidence required to prove consent in rape cases has come to attain a more pro-victim character. This tilt has helped in bringing about a balance in such trials as it helps overcome the virtual reserve of advantage which was otherwise enjoyed by the accused owing to the social stigma which is attached to rape victims in our society and which was well exploited by the defense to fuel the formation of a bias against the victim.
- Nuzhat Parveen Khan, Women and the Law (Universal Publishers, 2016).
- Crime and Justice in India (N.Prabha Uninathan, Sage Publications, 2013)
- Ishwara Bhatt, Law and Social Transformation (EBC, 2012)
- Saumya Maheshwari, The Language of Evidence in Rape Trials, NLSIU Socio-Legal Review (2014).
[i] Tukaram v. State of Maharashtra, AIR 1979 SC 185.
[ii] AIR 1981 SC 559.
[iii] AIR 1990 SC 538.
[iv]AIR 2012 SC 2281.
[v] AIR 1990 SC 658.
[vi]AIR 2001 SC 882.