CHAPTER V

RAPE LAW REFORMS UNDER INDIAN EVIDENCE ACT

After a nation-wide compaign of women’s movement for almost two decades, changes in the
rape laws could be finally seen. Changes although were again on the anvil many old issues were
subsisting while the important issues were emerging like low rate of reporting and convictions
for offences like sexual assault crimes.

The issues of ‘corroboration’, ‘consent’, ‘woman’s past sexual history’ and ‘delay in reporting’
have always been formidable issues facing the women’s groups and individual women victim.1
Nothing could have been seen to be varied from the Mathura rape case in 1970, which was
responsible for the nationwide movement to amend rape laws thus shifting the burden of proof
on the accused in cases of custodial rape and gang rape. Obstacles to justice still existed.
“Despite the vibrant women’s movement and the reforms made in the rape laws, delay in lodging
the FIR, delay in medical examination, statement before the police and testimony in court remain
prime factors in favour of defense lawyers.2 Women who was the victim of the heinous crime,
still had to suffer through the humiliating experience of ‘seizure of clothes, preparedness of the
slides of vaginal smears, tests for presence of sperm and so on, as it being part of the evidence.
The prosecution had to adduce circumstantial along with the medical evidence to identify the
perpetrator. Women had to confront to not only just police and the judicial system but the law
provided with the provision which permitted the questioning of the credibility of a woman.

Considering the fact that the entire cases rested on ‘consent’, the routine practice of the defense
lawyers was to provide with the evidence that the testimony of the woman was unreliable. In this
situation, familiar terrain was covered, like ‘lack of physical marks of injury, her conduct before
and after the incident, and, of course her character’. Her conduct may involve circumstances

1
Amendments to rape laws: problems and possibilities, site.google, (May 6, 2017, 9:43
a.m),https://sites.google.com/site/saheliorgsite/violence/sexual-assault/amendments-to-rape-laws
2
Roma , consequences of prolonged delays in rape trial, legalservicesindia, (May 7, 2017,2:19
p.m.),http://www.legalservicesindia.com/article/consequences-of-prolonged-delays-in-rape-trial-1979-1.html
showing that she willing accompanied the accused, she did not rise an alarm, she did not disclose
the happening immediately to someone, or there was delay in registering the complaint.3

She had to suffer through the grueling and humiliating cross-examination because the clause of
the Indian Evidence Act (INDIAN EVIDENCE ACT) allowed the ‘past history’ of the women
had not been deleted from the Indian Evidence Act. “Section 155(4) of the Indian Evidence Act
states that if a man is prosecuted for rape or attempt to ravish, ‘it may be shown that the
prosecuterix was of generally immoral character.4

Law commission in its 84th report addressed this issue and recommended that this cause should
be deleted, but this recommendation was not accepted and was dropped when the final bill was
presented before the parliament. Therefore, the amendement to laws relating to rape did advance
over the existing laws by inclusion of the provision that ‘in custodial rape cases, if a woman says
that she did not consent it will be presume that she did not’. Although this section did not prove
to be beneficial for women as it was hindered by section 155(4) of the Indian Evidence Act.
Conviction rates for the offence of custodial rape did not rise significantly as was hoped after the
introduction of the amendment.

The Indian Evidence (Amendment) Act, 2002

Section 155(4) of Indian Evidence Act previously allowed for the defense lawyer to ‘discredit’
the testimony of the victim by contending that she was of “immoral character”. This could be
said to be an attack on the victim in the name of legally allowed cross examination, putting up
questions regarding her past sexual acts, victim’s personal life and her personal matters thereto,
this result more negatively in deterring the victims of rape filing a complaint. The Indian
Evidence (Amendment) Act of 2002, which can be said to be enforce from January 1 in 2003
made some positive amendments and resulted in the deletion of the section 155(4) of the Indian
Evidence Act and amended section 146 of the Indian Evidence Act.5 This new provision
provided that is shall not be permitted to put forward questions of such kind in cross-examination

3
Saheli, speaking out against war and violence, unipune, (May 8, 2017,
3:33p.m.),htt://www.unipune.ac.in/snc/cssh/HumanRights/07%20state%20and%20gender/r/23.pdf
4
Saheli, speaking out against war and violence, unipune, (May 8, 2017,
3:33p.m.),htt://www.unipune.ac.in/snc/cssh/HumanRights/07%20state%20and%20gender/r/23.pdf
5
“ Provided that in a prosecution for rape ar attempt to commit rape, it shall not be permissible to put questions in
the cross-examination of the prosecutrix as to her general immoral character”.
of the prosecutrix which will discuss her general moral character. This facilitated in putting an
end to the unwarranted attacks on the past sexual history of the rape victims.

The amendment relating to the specific matter of cases relating to rape, it was prohibited to put
questions to prosecutrix pertaining to her general immoral character. “petitioner’s request to
screen//show blue video recording of prosecutrix indulging in sexual acts was not acceded to
because sole object was to impeach her credibility and general immoral character.”6

Amendment of the section 146 was to appreciate that the aim of cross-examining a rape victim is
not to humiliate the victim but to get to the truth of the issue. Thus, questions which provides no
relevance to the issues before the court and which causes discomfort to the victim if not
humiliation, should not be permitted. Asking such questions do not serve the ends of justice and
thus should not be allowed to be put.

However, this provison does not bar a medical practitioner who is supposed to be conduction
medical examination to require the information about her past sexual acts. “This is to correctly
interpret the physical and genital findings on the victim: the findings (injuries sustained) of a
forceful sexual act in a virgin person (who has not experienced sexual intercourse) differ from
those on a person who has experienced sexual intercourse in the past. 7 Before conducting this
medical examination, the medical practitioner should explain the victim the purpose of collecting
such evidence and how the same will help her and her case and thus receive justice from the
justice system as it would help in interpreting the physical and genital finding that is the injuries
suffered. The victim should be explained properly the provision under section 155(4) of the
Indian Evidence Act. If this is not done, the victim of the rape may not be forthcoming with the
information, as she may believe that these information might be used against her once given as
medical evidence.

6
Dilbhajan singh v. state of Punjab 2004 criLJ3152(P&H)
7
Jagadesh, legal changes towards justice for sexual assault victims, 10, 1JME, 37, 39. (2010)
Criminal law (Amendment) Act, 2013

By the amendment of 2013, section 53A8 was inserted in the Act. It talked about “evidence of
character or pervious sexual experience not relevant in certain cases”. This provision inserted
provided that while the question of consent is raised in respect of the offence under section 354
and 376 or attempt to commit such offence, victim’s sexual history with any person in past
should not be considered while judging the consent’s quality while dealing with the case.

For section 114A of the Evidence Act , the following sections shall be substituted, namely:-

“In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e)

or clause (f) or clause (g) or clause (h) or clause (i) or clause (j) or clause (k) or clause (l) or
clause (m) or clause (n) of sub-section(2) of the section 376 of the Indian Penel Code, 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 such woman states in her evidence before
the court that she or he did not consent, the court shall presume that she or he did not consent.

Explanation- In this section “sexual intercourse” shall mean any of the acts mentioned in clause
(a) to (d) of section 375 of the Indian Penel Code.”

Law before the amendment of 1983 treated the prosecutrix that is the victim of rape as an
accomplice, whose statements needed to be corroborated as a matter of prudence. Thus the apex
court provided that since cases of rape involve a bad character with itself, they are generally not
brought to the court and if they do come to the court, it comes after great reluntance. Thus, if a
victim comes forward after such reluctance then her statement should be given more weightage
than the evidence of an ordinary witness.

The consent theory which had been in force for over a hundred years was forced to be reoriented
due to the resentment showed by the public and also because the perpetrators usually escaped
from the punishment. It has been difficult for the court to draw correct inference from the

8
*53A: evidence of character of previous sexual experience not relevant in certain cases: in a prosecution for an
offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376B,
section 376C, section 376D, section 376E of the Indian Penel Code or for attempt to commit any such offence,
where the question of consent is in issue, evidence of the character of the victim or of such person’s previous
sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.*
surrounding circumstances and situations whether the sexual intercourse was done with or
without the consent. Accused generally used to take defense that sexual intercourse was with
consent and the rape victim is now denying so as to protect herself from the public. Without the
corroboration of the victim’s statement the accused could not be punished. Thus, to annihilate the
defense consent as well to dispense the injustice due to gender, an amendment was introduced
where the court can presume that no consent was given by the rape victim if she denies it. If the
victim says that sexual intercourse took place withour the consent of the rape victim then court
shall regard that there was no consent by the prosecutrix. Evidence of the rape victim is enough
to prove that the consent was not given by her. Burden of proof is on the accused that sexual
intercourse was with the consent of the prosecutrix. When the rape is said to be committed it
shall be presume that the sexual intercourse took place and the sexual intercourse was without
the consent of the prosecutrix. The issue of consent is a metter of defense by the accused an it is
on accused to prove that there was consent.

In the case of Gagan Bihari Samal v. State of orrisa9 gang rape was committed on the victim.
Evidence was provided by the prosecutrix which showed that the victim had protested and
struggled while she was forced to have sexual intercourse. This evinces absence of consent of the
rape victim apart from the legal presumption under section 114A of the Indian Evidence Act.

Prosecutrix of rape or sexual offence cannot be put on part with an accomplice. She is the victim
who has sufferd through the heinous crimes. A victim of sexual offence is a competent witness
under section 118 and her evidence should be given equal weightage as to an injured in physical
violence cases. Same degrees of care and protection should be given to the victim as provided to
the injured witness or complainant. “it is essential 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
charged leveled by her. If after such consideration the court feels satisfied that it can act on the
prosecutrix’s evidence then there does no exist any rule of law or practice incorporatein
Evidence Act similar to illustration (b) to section 114 which was asks for corroboration.”10
Nature of evidence required to provide assurance to the testimony of the victim must necessarily
rely upon the facts and circumstances of each case.

9
Gagan Bihari Samal v. State of orris, (1991) 3 scc 562
10
State of Maharashtra v. chandraprakash kewalchand jain,(1990) 1 SC 550
In the case of State of Orissa v. Damburu Naiko and Anr.11the court held that it is not essential tp
corroborate the evidence of the rape victim. If the evidence of the rape victim inspires confidence
to be truthful that itself will be enough to convict the accused. The court further provided that
even if the corroboration is required then the injuries, medical evidence of the doctor and the first
information report provides such corroboration.

Similarly, in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujrat12, the Supreme Court
said:

“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.”

For section 119 of the Evidence Act, the following section shall be substituted, namely:-

“section 119: A witness who is unable to speak may give his evidence in any other manner in
which he can make it intelligible, as by writing or by signs; but such writing must be written and
the signs made in open court, evidence so given shall be deemed to be oral evidence.

Provided that if the witness is unable to communicate verbally, the court shall take the assistance
of an interpreter or a special educator in recording the statement, and such statement shall be
video graphed.”

Section 118 to section 134 of the Indian Evidence Act, provides sections that are with regards to
the competency and compellability of the witness. ‘competency of the witnwss’ means capacity
or the ability to give evidence in the court. “A witness is said to be competent when there is
nothing in law to prevent him from appearing in the court and giving witness. Whether a witness

11
State of Orissa v. Damburu Naiko and Anr.,AIR 1992 SC 1161
12
Bharwada Bhoginbhai Hirjibhai v. State of Gujrat, AIR 1983 SC 753
is competent, depends on his capacity to understand the question put to him and the capacity to
give rational answer thereto.13

In the case of State of Rajasthan v. Darshan singh,14Supreme Court provided that nothing in the
Evidence Act prevented a deaf or a dumb from being a credible and competent person. Although
it can be disabled victims of sexual offences, the victims are either not examined in the court or
their testimonies are not recorded. Even if recorded if is not done is a legal manner which makes
their testimonies refundant-

The phrase ‘dumb witness’ is replaced with ‘person who are unable to communicate verbally’ in
section 119. Every person are competent to give evidence, if the person is satisfied that the test
of being able to understatnd the questions which are to be put to him/her and the person is able to
give rational answers to such questions. Earlier the scope of section 119 was limited as it was
provided for deaf and dumb. The purpose of the section is to give opportunity to the deaf and
dumb to give evidence as earlier they were considered idiots and were not considered competent
to give evidence. By section 119, they were given a status of someone who is competent to give
evidence. The scope of section 119 was broadened by introduction of 2013 amendment. Now a
person a person who is not deaf or dumb but who becomes incapable to give evidence due to
temporary health condition or any other situation should be allowed to give evidence by other
methods, that is by either writing or signs or maybe but with the help of an interpreter. Section
119 lays down that two essentials should be followed that is, the person should understand the
nature of the act and the person can give his/her evidence by using other means. The test for
competency is the capability of a person to understand the questions put to him and give rational
answer to them.

In the case of Mariyadoss v. State15, Madras High Court emphasized on section 119 of the Indian
Evidence Act. It directed the lower courts to obtain affidavits of secrecy from people responsible
for videography who were responsible for recording the witnesses’ statements who are incapable
of hearing or speaking. The court also provided that its necessary that the affidavit be filled so as
to make sure such videos are not shared or not put online. The court also provided a list of all the

13
Meaning and thest of competency of the witness.Srdlawnotes, (may 9, 2017,
4:23p.m.)http//www.srdlwnotes.com/2017/02/meaning-and-test-of-competency-of.html
14
State of rajasthan v. darshan singh, AIR 2012 SC 1973
15
Mariyadoss v. State, 2014-2-LW(Crl)417
advocates who are equipped with the skill and knowledge to the lower court in evidence in
recording and provid for expense for video graphing from the contingent fund.

In section 146 of the Evidence Act, for the proviso, the following proviso shall be substituted,
namely:-

“provided that in a prosecution for an offence under section 376, section 376A, section 376B,
section 376C, section 376E of the Indian Penel Code or attempt to commit any such offence,
where the question of consent is an issue, it shall not be permissible to adduce evidence or to put
questions in the cross-examination of the victim as to the general immoral character, or previous
sexual experience, of such victim with any person for proving such consent or the quality of
consent.”

Section 146 was amended again by 2013 Amendment Act. Scope of section 146 was widened.
After the amendment, section 146 included the new sexual offence in its ambit. No question
relting to general immoral character or the person’s sexual history with any person can be put
while conducting cross-examination for offence of not just rape or attempt to commit rape but
also for offences like rape causing the death or resulting in persistent vegetative state of victim,
rape of wife by the husband during the term of separation, rape by a person in authority, gang
rape and rape by person who have been convicted previously of an offence punishable under 376
or section 376A or section 376D.