Evidence of prosecutrix in rape cases

I came across a 4-part dissertation on factors used by courts as a guide to evaluate evidence of the prosecutrix in rape cases.  It is authored by the Honorable Justice U.L.Bhat, former Chief Justice of Gauhati and Madhya Pradesh High Courts. It is important we first read and understand the guiding principles in the numerous appellate court rulings cited by Justice Bhat; thereafter, recognize predisposition in judicial deliberations that are tangential to expectation of fair play and the fundamental maxim of justice: the Preponderance of Innocence. 

In a nutshell, the general stance of our honorable courts toward “trying” cases of alleged rape is, “Give the Accused a fair hearing, then hang him”. The notional exercise of seeking “collaboration” of witness testimony goes against the very grain of equity, impartiality, and justice one expects from a purportedly impartial Trier of Fact because the “collaboration” sought is primarily to reinforce the putative “victim’s” testimony - nothing more. Any indication of a biased investigation, or circumvention of statutorily mandated procedures, or lack of forensic findings that could conclusively establish sexual intercourse (or a sexual “nexus” between the Accused and the “victim”), or an unreasonably delayed FIR, or infirmities in prosecution witnesses’ testimonies, or absence of any real/tangible or demonstrative evidence, or other prosecutorial shortcomings would generally not render suspect the allegation nor vitiate the trial if these lacunae are “reasonably” explained …

Wherewith, it is within judicial discretion to excuse prosecutorial excesses as “mere, petty, minor, unintentional, inconsequential, or based upon good-faith reliance upon false assumption or belief and did not cause Defendant undue prejudice to vitiate the trial” (Hon. Supreme Court in Rafiq Ahmed @ Rafi vs State Of U.P. 4 August, 2011)! Because, even despite an absence of a gossamer thread of evidence from trulyindependent/impartial sources that could corroborate the “victim’s” story, the Honorable Courts fall back on the “weight” of unverified testimonies of witnesses in absentia, those who “have an interest” (personal/private/vested?) in the outcome of the trial and accept this as corroborative evidence.

The qualifying criteria for “collaborative evidence” to merit judicial recognition (and acceptance), would include coached or hearsay testimony from (say) the victim’s close relations (e.g., mother), acquaintances, friends, friends of friends, or teacher to whom the rape victim narrated the incident. Statements to this effect “taken down in writing” (by the police) after the fact but “explained in vernacular” is accepted as “evidence” at face value and stands on equal footing with tangible evidence. Nevertheless, these one sided declarations satiate the optional provision for “collaboration”, thereby, judicially anointing mere accusations with authenticity and credence! This biased standard for accepting and weighing evidence (which, really, is no Standard at all), has been “hardened into a rule of law”!

Ponying up on a hundred year old case in England [King V/s. Baskar Ville (1916) 2 KB 658], which dealt with “acts of gross indecency” (can someone define “indecency” in specific legal terms, please?) with two boys, a like-spirited, albeit slanted, precedent was reinforced in Rameshwar V/s. State of Rajasthan: “There is no doubt that the uncorroborated evidence of an accomplice is admissible in law” …. “all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’s story that the accused was the one, or among those who committed the offense” ….

The arbitrary standard for independent corroboration is “ … some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it…“… “ …must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime …” ... “On the other hand, seeing that corroboration is not essential to a conviction, conduct of this kind may be more than enough, in itself, to justify acceptance of the complainant’s story …” ...” … there can be no doubt that such a statement is legally admissible in India as corroboration” whether or not it was from vested interests... (emphasis mine).

The scary fact of life is that case law runs rampant with convictions based solely upon the complainants’ testimony because, somewhere along the way to the present evolutionary level of judicial thought and reasoning, our criminal justice system has relented to political pressure and trial by media effectively shelving common law expectations of impartiality and justice by creatively “interpreting” gender neutral laws to promote and legitimize biased practices – which becomes law unto itself. This sets the tone for pre-arrest/pre-trial documentation that often reflects subjective bias in favor of the prosecutrix during trial.

In rape cases, the police are expected to prima facie believe the complainant regardless of the truthfulness or fallacy of her story; thereafter, generate supporting paperwork to justify remand and prosecution.   

It is accepted practice in cases alleging rape to circumvent requirements for due process and impartiality reflected in other landmark rulings. For instance, of the several cases cited by Hon. Justice Bhat, not one incident is mentioned where courts applied some standard to identify false accusations, or in what manner did the arresting agency record their “reasonable belief” that the Accused had committed a crime, or whether mandatory procedures were circumvented, or some indication where the benefit of doubt would be applicable, or where the court considered compliance with other rulings which addressed the requisite for a “pre arrest” investigation into the allegations perLaw Commission’s and Hon. Supreme Court’s Ruling on Arrest/Detention (per Joginder Kumar vs. State of UP. & Ors., Directorate of Enforcement Vs. Deepak Mahajan & others, Kultej Singh Vs. Circle Inspector of Police & others, Christian Community Welfare Council of India and others Vs. Government of Maharashtra  & others, etc.).

Sweeping statements by our Apex Court mirror their personal opinion of the purported cultural mores of Western versus the Indian women as causal factors for false allegations of rape: Indian women will not lie about rape but the “liberal” Western complainant should be viewed with suspicion? See Criminal Appeal No.1798 of 2008 –Wahid Khan vs. State of Madhya Pradesh.

But this learned opinion is subjective, intrinsically discriminatory, antiquated by 40-plus years’ of progressive women empowerment, and tangential to numerous real life events including the Hon. Supreme Court’s own conflicting opinion in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 24 May, 1983 –[Equivalent citations: 1983 AIR 753, 1983 SCR (3) 280], where it also recognized that “a woman of the age of majority is found in compromising position, who is likely to make accusations for self preservation …

It is clear that courts entertain (and encourage) the satti savitri image of the Indian woman. But surely they cannot be blind to the fact that opportunism exists within its very corridors? “. Truth be told: A Western woman is no less in worth than her Indian counterpart; and no more benign nor sinister in pursuing her intentions. The proposition that “Indian women will not make false accusations of rape” is just as fallacious as “the Indian judiciary is not open to corruption” because real life events speak differently.

I am sure that the Hon. Supreme Court’s portrayed intentions are benign and impartial, but these are generally not mirrored by its rulings, reasoning, and presidents in sexual offence cases. On the one hand it advises, “that this rule of prudence must be present to the mind and be understood and APPRECIATED (not “applied”) by the court”. On the other hand, it directs, “There is no rule of practice that there must, in every case, be corroboration before conviction can be allowed to stand”; thereby, diminishing and negating the prior requisite.

Conspicuous in the above two statements is a divergence of the Letter of Law (i.e., the Rule of Prudence) from the Spirit of Law as reflected in judicial practice (i.e., the Rule of Practice).

What is even more alarming is the justice System summarily classifying a female complainant alleging rape as “victim”, accepting her testimony as gospel, and according all rights due a victim when the task on hand is TO DETERMINE WHICH PARTY IS THE VICTIM! In a similar vein, labeling the Defendant as the “Accused”, instinctively promotes a contemptuous connotation. Equating a complainant of an alleged sexual crime as “victim” is unduly prejudicial to Defendants, as the word, in any reasoning mind, conveys the impression that the crime has already been established, the culpable party has already been identified; so has the suffering victim. Therefore, one reasonably wonders if there is any practical merit in conducting a trial except for a perfunctory showing of “the rule of law” in action when the outcome has already been decided through subjective leanings and prejudicial precedents.

There is an implicit bias in the interpretation and execution of certain provisions in rape laws; essentially, the myriad of premature protections and entitlements to female complainants alleging rape; and prima facie accepting their unverified defamatory testimony as sacrosanct, credible, and beyond reproach whereby any thoughts to test its veracity is not really obligatory upon the investigating agency or the courts. This precedence is violative of the Constitution of India Article 21, which guarantees the right to life and liberty to both men and women alike. This commonly accepted practice is morally, ethically, and legally wrong: it is bad law. Or, perhaps, it is good law often being applied in a bad way, and throwing open the floodgates to opportunism and misandry as did IPC 498A, Dom. Violence, and other gender biased laws before the courts adopted an impartial approach. But what about those lives already shattered in the wake of a biased judiciary?

Are defendants in rape trials truly considered innocent until proven guilty beyond a reasonable doubt in the eyes of the Court? Then why is the burden of proof placed upon him in view of such arbitrary, slanted standards to test his innocence or guilt?

Whatever happened to the fundamental Maxim of Justice, the Preponderance of Innocence? Whatever happened to the Equal Protection – Right to Life & Liberty provision in the Constitution which Judges have sworn to uphold? How many innocent victims slain by arbitrary, biased application of law will it take for the Halls of Justice to wake up to the stench of travesty?

Respectfully submitted,

Carlisle Collins


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Deconstructing Forensic Science Criminal Procedure
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Carlisle Collins 
on 03 November 2014
Published in Criminal Law
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