Rape and the Law

False accusation of rape is on the rise. When these cases go on trial, any laxity in raising a defence that can be taken up by the accused will go a long way in weakening his case and may prove to be fatal. However, the apex court’s recent verdict brings the much-needed clarity on the position of the accused

By Dr Swati Jindal Garg

In a recent case, the Supreme Court, while acquitting a person accused of rape, observed that the accused does not have to produce evidence to prove his innocence unless the law specifically puts the burden of proof on him. The said decision has, to a large extent, clarified the position of the accused and the proof of burden that lies upon him, while defending himself against charges of rape.

The law governing the procedure to be followed in trials for rape cases or otherwise has been enumerated in the Criminal Procedure Code (CrPC). Along with the CrPC, the Indian Evidence Act, 1872, also lays down provisions for leading evidence under the criminal trials. Under the Indian Evidence Act, 1872, Section 101 of the Act states that the burden of proof lies on the person making any claim or asserting any fact. Simply speaking, the law states that whoever wants the court to give any decision in his favour, must himself prove that the facts pertaining to that request exist. Section 114 of the Indian Evidence Act, however, says that the court may presume certain things. 

After the decision of the case, popularly known as the Mathura Rape case, the Indian Evidence Act was amended and Section 114A was inserted via the Criminal Law Amendment Act, 1983. From then, the onus of proof has been shifted from the prosecutrix to the defendant in certain cases of rape. In the latest judgment, the apex court has once again acknowledged that the accused may have some burden to discharge under Section 114A (presumption as to absence of consent in certain prosecution for rape) of the Evidence Act.

“We may also add here that in our jurisprudence unless there is a specific legislative provision which puts a negative burden on the accused, there is no burden on the accused to lead evidence for proving his innocence. The accused may have some burden to discharge in case of a statutory prescription, such as Section 114A of the Evidence Act. In this case, the burden was on the prosecution to lead evidence to prove the guilt of the accused beyond a reasonable doubt,” the top court said. The judgment was given by the division bench of Justices Abhay S Oka and Ujjal Bhuyan which was hearing an appeal against the conviction under several provisions of IPC, including rape. 

The accused and the prosecutrix in the case under discussion were married to others. The prosecutrix alleged that the accused, known to her as a friend of her husband’s brother, offered her a ride when she was waiting for a bus. He then took her to a room at a guest house in Bhiwani under the pretence of stomach pain. Once inside, he locked the door and forcibly had intercourse with her.

The question before the Court to begin with was whether Section 114A would be applicable in the present case. Section 114A of the Indian Evidence Act presumes the absence of consent in certain prosecution for rape. The prosecution argued that as the accused was in a position of trust being already acquainted with the prosecutrix, the presumption under Section 114A will apply, and hence, it was upon the accused to prove that he had consent from the prosecutrix. 

The Court however, noted after scrutinising the prosecutrix’s evidence that no fiduciary relationship existed between both parties hence, making such an allegation was “completely erroneous.” “Therefore, on the face of it, the presumption under Section 114A of the Evidence Act will not apply, and, therefore, the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix,” the Court added. 

Noting the peculiarity of the facts of the case, the Court also stated that the prosecutrix’s account of the incident reveals that she had accompanied the accused willingly without protesting as they moved from one place to another. It was also on record that the guest house’s owner’s testimony revealed that the accused and the prosecutrix claimed to be husband and wife when they arrived there.

The Court also noted, among other things, that there were WhatsApp messages between the accused and the prosecutrix about 400 times and even after the alleged incident, the prosecutrix was in conversation with him. She had, in fact, not only informed the accused about her visit to Hansi earlier, but had also failed to raise any protests, make any hue and cry, or complain when she left the hotel room where the alleged rape had taken place. It had also come to light that she signed the hotel register while leaving the hotel with the accused.

“We may also note here that on the way from Hansi, the prosecutrix travelled in the car of the appellant-accused along with the appellant, and the guest house where they entered is at Bhiwani, which is close to her matrimonial house as deposed by her in her cross-examination. According to the prosecutrix’s version, the appellant-accused entered the Jindal Guest House first, and she was waiting in the car. If there was any compulsion made by the appellant-accused, the prosecutrix could have got out of the car and walked up to her residence. However, she did not do that,” the Court further noted and added: “All this has to be appreciated in light of the fact that we are dealing with a case of a well-educated victim who was married and a graduate. Her age at the time of the incident was about 28 years.”

The Court also took note of the fact that the CCTV footage from the guest house was withheld by the prosecution, and it was based on the above projection and other observations that the Court said that it is very unsafe to rely solely upon the testimony of the prosecutrix in the present case. In light of this, the accused was acquitted, and it was concluded that the prosecution failed to prove the appellant’s guilt beyond a reasonable doubt.

False accusation of rape in today’s day and age are rising every minute. When these cases go on trial, the rules and procedures that need to be followed to bring about a fair redressal must be followed to a “T”. Any laxity in raising any defence that can be taken up by the accused will go a long way in weakening his case. The presumption under Section 114A is one that is of utmost importance. Section 114A of the Indian Evidence Act lays down that there will be a presumption of absence of consent in certain instances of rape cases. It says that if rape has been committed under any of the clauses of sub-section (2) of Section 376 of the Indian Penal Code, and the woman states in her evidence that she had not given consent,  the court shall presume that the woman did not consent.

In the Mathura Rape case, the decision of the Supreme Court was widely criticised in the country, leading to the government’s decision to revamp the laws and the passing of the Criminal Amendment Act, 1983. In the landmark case, a girl named Mathura fled with her boyfriend Ashoka. Her family registered a complaint against her boyfriend. The girl, her boyfriend, her brother Gama and other relatives were then called to the police station to settle the matter. The investigation was completed and while everybody else was asked to go back, Mathura was asked to stay back. Thereafter, allegedly, a police constable named Ganpat took Mathura to a chhapri and raped her. After that, another policeman Tukaram came there and fondled her private parts. 

The case went to the sessions court which held that the policemen were not guilty. They said that Mathura might have invented the story. The High Court, however, took a different stance on the case and held that mere passive surrender of the body would not amount to consent on the part of the plaintiff. The Court commented that the overtures might have come from the policemen themselves and not from Mathura. 

Further, on appeal, the Supreme Court overturned the decision of the High Court. It held that she submitted her body to the policemen as she did not resist. The Court had at that time, relying upon Section 114 of the Indian Evidence Act, said that the “onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.” 

The judgment was criticized and there was an uproar in the country. After careful scrutiny, it was realised that there did in fact exist a vacuum in the set available law  and hence, it was at that time that Section 114A was inserted in the Indian Evidence Act. It was substituted by the Amendment Act of 2013.

It has been said time and again that justice should not only be done, but also seen to be done. Our judiciary and legislature have always made efforts to ensure the same by adopting such laws which live up to the spirit of the law and the Constitution. Over a period of time, taking into account the changed societal circumstances and the vacuum that exists in law, amendments were made to the Indian Evidence Act. The onus which was usually on the victim has now in certain cases been shifted to the accused in the cases of rape. The legislature is trying its level best to solidify the anti-rape laws and bring the guilty to justice. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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