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 STUDY

Following are the 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.