General Presumption in 10 Indian Rape Cases

INTRODUCTION

Section 114A of The Indian Evidence act, 1872 (henceforth the Act), states –

“In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved, and the question is whether it was without the consent of the woman, alleged to have been raped, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.”

The law before this amendment of 1983 virtually treated a prosecutrix, a victim of rape as an accomplice requiring her statement to be corroborated as a matter of prudence. An Allahabad case [1] first tried to emerge out of the impasse by laying down that the cases of rape involving bad reputation of the family of the victim herself, seldom are brought to court, and if brought, are with greatest reluctance and therefore if a girl does not come forward and alleges that she had been raped, her evidence should carry more weight than the evidence of an ordinary witness. This decision did not lay down however that in rape case the evidence of the prosecutrix needs no corroboration. Nor could it could lay down so because of the host of Supreme Court decisions laying down the rule that as a matter of prudence court should search for such corroboration. In a Supreme Court case however it was held that conviction on a charge of rape on uncorroborated testimony of the prosecutrix was legal. [2]

The first in the lute was first noticeable in a Supreme Court case which stated that in rape cases. Courts must bear in mind human psychology and behavioral probability when assessing the testimonial potency of the evidence of the victim-prosecutrix. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of the masculine sexual aggression are factors relevant to improbabilise the hypothesis of false implication. The tender years of the child coupled with other circumstances may render corroboration unnecessary but that is a question of fact. [3] In another case the Supreme Court said that hardly a sensitized judge who sees the conspectus of circumstances in its totality rejects the testimony of rape victim unless there are strong circumstances militating against its veracity. [4]

THE CASE STUDIES

The foollowing are 10 important cases relating to General Presumption under section 114A of The Indian Evidence act, 1872:-

State of Orissa Vs. Damburu Naiko and another. [5]

Facts

The case of prosecution is that on the fateful day the victim Bhotruni along with other girls, PWs. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00 p.m.while they were returning home, PW. 1, the victim was ahead of them and when they reached inside the forest, the appellants and two others gagged the mouth of PW. 1 and kidnapped into the forest, covered her eyes with a piece of cloth and threatened to kill her if she would raise cries.

They made her to lie down on the ground and raped her one after another. PWs. 2 to 4 ran back Papadahandi and reported, to the police on duty in the festival, of the incidence and PW. 5, the constable came along with them. They found the victim’s eyes covered with a piece of cloth and that she was crying. She was taken to Papadahandi. She laid the complaint. The accused were arrested on October 31, 1977.

Judgment

The court was of the view that it is not necessary that there would be corroboration to the evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would be sufficient to convict the accused. We need not see corroboration to the evidence of PW. 1. She was a simple village girl and she will not leave out her own assailants and implicate falsely other innocent persons with the allegation that she was raped by them. Further it said that even if they seek for corroboration the injuries on her private parts; medical evidence of the doctor and her first information report provides such corroboration.

The court wholly accept her evidence as truthful. Thus the appeal was accordingly allowed. The judgment of High Court and the order of acquittal of the respondents were set aside. The judgments and convictions and sentences recorded by the trial court and affirmed by the Sessions Courts were restored and the respondents were made to surrender and serve out the sentences.

Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat. [6]

Fact

The incident occurred on Sunday, September 7, 1975, at about 5-30 p.m. at the house of the appellant. The evidence of P.W. 1 and P.W. 2 shows that they went to the house of the appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who happened to be their friend. The appellant induced them to enter his house by creating an impression that she was at home, though, in fact she was not.

Once they were inside, the appellant closed the door, undressed himself in the presence of both the girls, and exposed himself. He asked P.W. 2 to indulge in an indecent act. P.W. 2 started crying and fled from there. P.W. 1 however could not escape. She was pushed into a cot, and was made to undress. The appellant sexually assaulted her. P.W. 1 was in distress and was weeping as she went out. She however could not apprise her parents about what had transpired because both of them were out of Gandhinagar (they returned after 4, or 5 days).

Judgment

The Supreme Court stated that “in the Indian setting, refusal to act on the testimony of a victim of sexual assault in absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted lens tinged with doubt, disbelief or suspicion?. To do so is to justify the charge of male chauvinism in a male dominant society.”

On principle the evidence of the victim of sex assault stands on par with evidence of injured witness. Just as a witness who has sustained injury is not likely to exculpate the real offender, the evidence of a victim of sec offence is entitled to great weigh, absence of corroboration notwithstanding.

State of Maharashtra Vs. Chandraprakash Kewalchand Jain. [7]

Fact

A brief narration of the facts may be apposite. In this particular case one M aged fell in love with Shamimbanu, aged 19 left their residential town and entered into a marriage through a Kazi. The accused police officer found them in a hotel room, brought them to the police station and then on the next night sent the girl to another hotel. Having thus separated the couple and finding the girl thoroughly helpless forcibly removed her “kurta” and threw it away. He gagged the girl’s mouth and threatened her with dire consequences if she did not submit. He then threw the girl on the cot and forcibly removed her “salwar” and denuded her. He then had sexual intercourse with her, notwithstanding her protestations.

After satisfying his lust, the accused left threatening that he would bury both of them alive if she complained to anyone.

Judgment

The Supreme Court was of the opinion that “the nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. They further stated that, their should be no doubt that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness.”

Hence the court observed that a prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime.

Santana Ghosh v. State. [8]

Facts

This is an interesting Calcutta High Court case decided on 13-11-1986 (long after section 114-A having retrospective effect being brought into statute) where a girl Santana by name gave evidence that the accused after forcibly ravished her consoled her saying that he would marry her. Santana believing the promise did not disclose anything about the sexual assault. Later she allowed the accused to have sexual relations with her resulting in her being pregnant.

Judgment

The learned Judge in his considered judgment searched for corroboration of the testimony and having found it upheld conviction. The court stated that “the Evidence Act being retrospective, no matter when the sexual union took place, the version of the girl was enough to tilt the balance. Search for corroboration was an exercise in futility.

Banti alias Balvinder Singh Vs. State of Madhya Pradesh [9]

Facts

The prosecutrix was near a culvert of village Shyampur, a jeep overtook her. The jeep was being driven by accused Jagtar Singh. Three more Sikhs were seated in the jeep. Accused Jagtar Singh was a contractor in the village in which Kuntibai lived i.e. in village Nathela. He offered to give lift to Kuntibai. Kuntibai declined the offer. It was further the prosecution case that two of the Sardars seated in the jeep then forcibly dragged Kuntibai into the jeep. Kuntibai whisked away to Chhindari camp, being the work site of accused Jagtar Singh. She was forcibly made to consume liquor at the camp.

A fifth Sikh by name Banti (appellant in the present appeal) joined the other Sikhs in the camp. All the five Sikhs then forcibly ravished Kuntibai one by one on that night. On the following morning Kuntibai managed to slip away and came to her own house in the same village. She made a report (Ex. P-2) of the incident after 5 days i.e. on 25-8-1985 at 12.30 p.m. The said report expressly named Jagtar Singh and Banti as two of the five ravishers.

Judgment

The court stated that having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to any body for five days coupled with late recording of report by her after five days with false explanation for the delay, in the context also of the lax morals of the prosecutrix, the court found it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five accused persons or any of them. The court also found it difficult to believe her version regarding her alleged abduction in the jeep.

Thus in the circumstances, the court held that the prosecution story was not satisfactorily established and the presumption stood rebutted and accused acquitted.

Kuldip Singh and Anr. Vs. State of Punjab [10]

Facts

The prosecutrix and her mother, as usual, on 8-12-89 at about 3.00 p.m. were cutting grass for the cattle from the field. This field belongs to Chet Singh son of Chattar Singh Jat, resident of Sante Majra and Arhar (cereal) crop was standing in the field. She was cutting the grass on the eastern side and her mother was cutting the grass on the western side of the field. A man who is known as Fauji came from the side of motor situated near eucalyptus trees.

He told her that he’s am seeing her for the last three days, today is the last day. He caught hold of her from her left arm and threw away the khurpa. She fell down on the ground. Then he broke the string of her Salwar and against her will blackened his face with her’s (committed rape). Then another person came at the spot, who had a new tubewell nearby. He also has blackened his face with her (committed rape) against her will and consent. And when she raised alarm both the persons ran away.

Judgment

The High Court had acquitted the respondents therein on the ground that the victim identifying the said respondents could not be relied upon as there was no corroboration to her evidence and that when there was a gang rape there could be several injuries on the person of the victim which were absent. Therefore, the victim therein was held by the High Court to be a consenting party.

This was set aside by the Hon’ble Supreme Court. It was held that the victim was a simple village girl and she would not leave out her own assail ants and implicate falsely other innocent persons with the allegation that; she was raped by them. Besides, even if corroboration was sought the injuries on her private parts: medical evidence of the doctor and her First Information Report provide such corroboration. Her evidence was accepted as truthful. There to no reason for her to falsely implicate the appellants. Thus the court found them guilty of committing rape, which was affirmed.

Pradeep Kumar v. State of Bihar. [11]

Facts

The appellant assured the second respondent that he would marry her, relying in this she consented to sexual intercourse. When this went on for some time, the appellant took the second respondent to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged.

Investigation was undertaken and statements were recorded under s.164 of CrPC wherein it was accepted that first with a promise of marriage, the accused had physical relationship with her and then had married her. Since the accused disowned having ever married her, she was forced to file the FIR. After investigation, charge sheet was filed wherein it was indicated an offence punishable under Ss.376 and 406 of IPC was made out.

Judgment

The case first reached the trial Court, then it went to the High Court and finally to the Apex Court. The case came up before a Division Bench of the Apex Court consisting of Hon’ble Justice Dr. Arijit Pasayat and Hon’ble Justice D.K.Jain. The High Court affirmed the order of the Trial Court of convicting the accused under Ss.376 and 406 of IPC.

Setting aside the order of the High Court, the Supreme Court held that a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of s.90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate consent. If on the facts it is established that at the very inception of making the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of s.375 clause second.

In reaching this conclusion the court mainly relied on Jayanti Rani Pandas case. The Apex Court asked the High Court to give a fresh look into the matter.

Tulshidas Kanolkar Vs. The State of Goa [12]

Facts

The case in hand is a classic example when the baser instincts of the appellant overtook his moral values and human sensitivity and he ravished the unsuspecting victim incapable of comprehending the vicissitudes of the dastardly act, not once but several times. So innocence was the victim that she was even not aware of the dreadful consequences.

Tragedy struck on the victim sometimes in 1999, when parents of the victim noticed that her legs were swollen and there were signs of advanced stage of pregnancy. They were shocked beyond limits. They asked the victim as to who was responsible for her pregnancy. She in her own way pointed out accusing fingers at the appellant and said that on some pretext or the other, ravished her.

When this shattering news was conveyed to the parents of the victims, they questioned the appellant. It is on record that some money was offered to them by mother of the appellant to have termination of pregnancy. When asked about the possibility of termination of pregnancy, the doctor indicated a sum of Rs. 6,000/- as the amount required. Since the appellant’s family were willing to part with only Rs. 2,000/-, there was no termination of pregnancy and evidence shows that a stillborn child was delivered by the victim.

Judgment

The Supreme Court stated that the plea of consent is too shallow to even need detailed analysis or consideration. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be a conscious and voluntary act. There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. A girl, whose mental faculties are undeveloped, cannot be said in law, to have suffered sexual intercourses with consent.

R v. Malone. [13]

In the instant case a girl of 16 years of age was raped and her contention was that she had not consented but was too drunk to offer a resistance. The accused on the other hand relying on R. v. Howard, [14] R. v. Lang [15] contended that where accused had not used force, threat or deceit the consent of the victim should be inferred. Rejecting this it was held that Howard, Lang and other cases decided before passing of the Sexual offences (Amendment) Act, 1976 could no longer be considered binding on the court. In the instant case there was sufficient evidence to support the conviction of accused as complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.

R v. Bree. [16]

Facts

The defendant and the complainant had been drinking together. It was common ground that both had voluntarily consumed a large amount of alcohol and that sexual activity had taken place. The defendant was charged with rape. The prosecution case had originally been put on the basis that the complainant had effectively been unconscious throughout most of the sexual activity. However, the complainant’s evidence was to different effect, and accordingly the prosecution case was not that the complainant had lacked the capacity to consent, but that she had not in fact consented; that whilst her ability to resist was hampered by the effects of alcohol, her capacity to consent had remained; that she had known what was happening; that she had known that she had not wanted to have sexual intercourse and, so far as she could have done, had made that clear. The defendant’s case was that notwithstanding, and perhaps because of, drink, the complainant had been consenting and was conscious throughout; and that he had reasonably believed that she was consenting. The defendant was convicted of rape. He appealed against this in the Court of Appeal. (Section 74 of the Sexual Offences Act 2003 provided: a person consents if he agrees by choice, and has the freedom and capacity to make choice).

Judgment

The Court of Appeal quashed the conviction order rendered by the Crown Court. The Court went on to hold that she did have capacity to consent and the appellant’s act would not amount to rape. In the case the Court of Appeal drew a distinction between what would amount to rape and what would not…It observed:

“If, through drink (or any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would amount to rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have sexual intercourse, and in drink agrees to do so, this would not be rape.”

However, in my opinion regarding this particular case this distinction should be given a fresh look. This distinction would most probably cause uncertainty and vagueness in future cases. There is no rationale in this distinction. There is an urgent need to address the question “whether a normal lady even after consuming substantial amount of alcohol would be in a position to give consent?”

CONCLUSION

The standard and onus of proof in the case of rape has not been changed by section 114A of the Evidence Act. It has only created a presumption qua the consent of the prosecutrix. Section 114A provides that in a prosecution for rape under sub-section (2) of section 376 of the IPC, when there is an allegation of rape the question whether it was without consent of the prosecutrix, the court shall presume that the she did not give her consent. In case of rape where it is established that there had been intercourse, and if the prosecutrix states in her evidence before the court that she did not consent, then the court shall presume that she did not consent.

The Evidence Act nowhere says that the victim’s evidence cannot be accepted unless it is corroborated in material particulars. The victim is undoubtedly a competent witness under section 118 of the Indian Evidence Act, and her evidence must receive the same weight as it is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act which requires it to look for corroboration of evidence. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice.