INTRODUCTION
India’s culture suffers severely from gender inequality and violence against women. According to the poll conducted by the Thomas Reuters foundation, India came out as the most dangerous country for women on several factors of which one was sexual violence and harassment. The offence of rape is the most heinous sexual offence and perhaps one of the most serious crime. The stigma and mental trauma a rape victim undergoes is enormous. The pain even intensifies when the wrongdoer is being acquitted from the offence and goes scot-free due to lack of evidence. An essential ingredient that constitutes the offence of rape is that ‘there should be a forcible sexual intercourse without the consent of the victim.’ It should be borne in our minds that to constitute a crime, there should be a combination of both the ‘mens rea’ and the ‘actus reus.’ In an offence of rape, the sexual intercourse would constitute the actus reus. Mens rea element is satisfied when there is a forcible and consensual approach by the wrongdoer. To establish the mens rea in such situations the victim would be forced to undergo severe mental trauma again adding on insult to injury. She would be subjected to severe cross-examinations by the defence to breach the fortress of her claims. As it is often stated that a rape victim undergoes two crisis one being the rape itself and the other being the trial. The first would wound her dignity, individuality and the second forces her to re-live the traumatic experience in a court in the publicly.
India, following an accusatorial system of justice, things were always easier for the accused. Considering this drawback in the provisions which reflected in situations where convictions were minimal in rape cases, and the offenders going scot-free because of the inefficiency of the prosecutors or even the lack of prosecution evidence that are capable enough to incriminate the offender.
A prime example is the Mathura Rape Case, where the Sessions Court stated that prosecution is required to prove all the evidences that could incriminate the accused to bring home the charges of rape. So, due to the lack of evidence the court observed that the victim was habituated to sexual intercourse because the prosecution could not prove the evidence. However, the on appeal the High Court convicted the accused while observing that the consent of the victim was obtained by inducing fear into the victim. But on special leave the Supreme Court overturned the High Court decision by observing that its always the duty upon the prosecution to prove all the ingredients of Section 63 of Bharatiya Nyaya sanhita to bring home the offence of rape against the accused and the Supreme Court also emphasized on the need to have a concrete finding that the consent was obtained by putting the victim in a situation of fear of death. Thus, the offence of rape under Section 63 was not made out and the accused persons were acquitted.
From the above analysis of the Mathura Rape Case, the Supreme Court laid out that to constitute an offence of rape all the ingredients provided under Section 63 should be proved by the prosecution and apart from that the absence of consent should also be proved by the prosecution. This position would be always bad in law and fails to ensure justice to the rape victims.
CONSENT
Consent was always an issue that needed careful appreciation while considering the rape offences. A sexual intercourse would be an offence of rape only if the act is committed without the consent of the other party. Thus, consent plays a crucial role in determining whether the act committed falls within the definition of rape.
The definition of rape provided under Section 63 of the Bharatiya Nyaya sanhita provides under different circumstances where there is absence of consent for a sexual intercourse and to constitute the offence of rape the sexual intercourse should be committed by the accused against the will of the victim. Also it should also be noted that the mere absence of any resistance to the intercourse in the absence of an unequivocal voluntary agreement does not imply the consent of the victim to participate in the sexual intercourse.
The Mathura Rape Case and the controversies that surrounded the Supreme Court decision and the burden upon the prosecution to prove the impossible and above all the societal harassment faced by the rape victims and also to encourage the reporting and prosecution of the offenders under the law, the criminal law amendment act of 1983 was passed which included several provisions amending the rape laws and one among them was the inclusion of Section 114A into the Indian Evidence Act 1872, by which there shall be a presumption of no consent by the victim in rape cases.
Section 118 of the Bharatiya Sakshya Adhiniyam. is as follows
“Presumption as to absence of consent in certain prosecution for rape. ––In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-Section (2) 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 such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation. –– In this Section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375 of the Indian Penal Code (45 of 1860).”
The legislature by introducing this particular amendment in the year 1983, foresaw a drastic shift in the criminal justice system in rape cases by easing the duty of the prosecutors and the investigating officers. All that the prosecutor would now require to prove is the sexual intercourse between the two persons and the court shall presume the statement of the victim that she did not consent to the sexual intercourse if she asserts the same. Earlier the victim had to fully convince the police in the first place of the commission of the offence upon her and had to undergo medical examinations to obtain further evidence finally she becomes an object who becomes subjected to embarrassing and humiliating cross- examination in the court. By introducing the new Amendment, the law became more victim friendly in relying upon her statements as gospel truth.
‘Consent’ to sexual intercourse according to the classic liberal theories refer to an expression of autonomy and free will by competent and rational individuals who are free from any coercion or pressure.
Similar provision regarding the presumption of the absence of consent could be observe in Section 75 and 76 of the Sexual Offences Act 2003 of UK. Under Section 75, if the prosecution proves that the defendant committed the sexual act and the defendant knew about it, then it shall be presumed that the defendant committed the act without obtaining the consent of the victim. And it shall be the burden on the defendant to prove the contrary with the help of sufficient evidence.
REACTION OF THE JUDICIARY PRIOR TO THE 1983 CRIMINAL LAW AMENDMENT
The position of rape cases before the 1983 Amendment was similar to the situations of usual criminal proceedings i.e., the accused were given the benefit of doubt and it was the duty of the prosecutor to prove the case against the accused beyond reasonable doubt. All ingredients of rape were required to be proven by the prosecutor. The victim was seen as a usual witness in rape cases similar to that of all other offences for example theft, hurt, unlawful assembly, kidnapping etc. The basic golden thread of criminal law jurisprudence i.e., the ‘presumption of innocence of the accused until proven guilty beyond reasonable doubt’ was intact. Now let’s take a look at how the judiciary has appreciated the concept of consent while they adjudicated over rape cases before the presumption of the absence of consent was introduced to the rape offences by way way of the 1983 criminal law amendment.
In the case of Emperor v. Kazamalli Mirzali, the Bombay High Court in a case where, a woman was alleged to have been abducted by the accused with the intention to seduce the woman for illicit intercourse. The Court stated that the statement of the victim that there was no consent for the sexual intercourse, required corroboration, if not it shall presume that the accused was innocent and thereby the sexual intercourse was a consensual affair. The court had to acquit the accused as the prosecution was not able to prove the absence of consent in the sexual intercourse.
In Gopi Shankar and Ors v. State of Rajasthan, a married girl was allegedly raped by the accused and two of his friends in a hotel. The accused intoxicated the girl’s husband and his friend and the accused raped her and threw her out of the hotel in a naked state. Under a situation where the girl cannot think of offering any active resistance, such a submission where voluntary faculty is clouded by fear or vitiated by duress, such a helpless or passive giving in cannot be equated with consent. Here, the Court observed that the prosecution was able to prove the absence of consent of the victim to sexual intercourse with the accused by corroborative evidence from the statements of direct witnesses. Thus, the accused was convicted for the offence of rape and upheld the sentence given by the Additional Sessions Court.
The Delhi High Court in the case of Rakshit Khosla v. The State, had made certain observation as to the duty of the prosecution in cases of rape. The case was relating to the offence of a college girl who alleged the accused to have spiked the drink of the girl and raped her by him along with his friends. The statement of the girl was that she was forcibly sexually assaulted and the accused had committed sexual intercourse with her against her will without obtaining her consent. The court while acquitting the accused had observed that the statement of the girl cannot be believed as it was not corroborated by independent testimony or other direct evidences as there was no injuries or marks of struggle on the person of the girl. They reached the conclusion that the sexual intercourse was a consensual affair since the prosecution could not prove the burden of establishing the absence of consent in the sexual intercourse. And it is not for the accused to prove the existence of consent whereas it is the duty of the prosecution to prove the absence of consent. Also, it was evident in the cross-examination of the girl that she was visibly shaken. While considering all these factors, the Delhi High Court concluded that the accused and the girl had a consensual and legal sexual intercourse.
In Idan Singh v. State of Rajasthan, a case of abduction and rape where the accused unlawfully abducted the victim and threatened her to marry the accused or she will be forced to have sexual intercourse. Nevertheless, in the ensuing night the accused is alleged to have rape the victim. The Rajasthan High Court discussed the concept of consent by stating that consent obtained by fear or by passive submission is not a voluntary consent. The choice of consent should be free and conscious acceptance for the sexual intercourse. The court dismissed the defense of consent put forth by the accused by holding that the accused had obtained the consent from the victim by putting her in a fear of death and the prosecution was able to prove the absence of consent to the sexual intercourse with the help of corroborative evidence. Thus, the court approved the conviction made by the trial court.
The Supreme Court in the case of Pratap Mishra and Ors v. State, had observed that the courts shall not presume the offence of rape based on the statements of the absence of consent from the part of the victim. The Supreme Court also reiterated the statement that its is the duty of the prosecution to prove all the ingredients of the offence.
From the analysis of the above case laws, it could be concluded that before the inclusion of the presumption as to the absence of consent in rape cases as introduced via Section 118 of the Bharatiya Sakshya Adhiniyam. Amendment, the situation was that the prosecution has the duty to prove all the ingredients of the offence irrespective of its nature. In rape cases the prosecution had to prove the absence of consent of the victim to the sexual intercourse with corroborative evidence. And it shall be the burden of the prosecution to do so, as the accused always had the presumption of innocence and the benefit of doubt and he was not required to prove anything. The accused retained his valuable fundamental right to remain silent throughout the criminal process.
Another factor that should be considered here is that irrespective of the presumption of innocence, the rape cases and trials in India before the 1983 Criminal law amendment lasted in conviction in about 44.3% and 37.1% in the years 1973 and 1983 respectively. The decline could be attributed to the increase in the number of cases being reported.
REACTION OF THE JUDICIARY AFTER THE 1983 CRIMINAL LAW AMENDMENT
Section 6 of the Criminal law Amendment Act was pertaining to the issue of consent, where the amendment was a product of the 84th law commission report which was made in the light of the public outcry and controversies surrounding the Mathura Rape Case. The Amendment included a new Section to the Indian Evidence Act 1872 via Section 114A which provides that in an offence of rape under Section 375 of the Indian Penal Code, the court shall presume that there was no consent for the sexual intercourse once sexual intercourse is proved.
The benefit of doubt to the accused in rape trials diminished as consequence of the 1983 Amendment, now the court shall take the presumption that the statement of the victim to be true, unless, the accused dissolves his burden by proving that there was a consent for the sexual intercourse from the part of the victim. It shall also be noted that the presumption provided in the Act is mandatory in nature, however it is rebuttable. If the accused is not able to rebut the presumption, then the court would believe the presumption as the truth.
The 1983 amendment brought in significant changes to the rape offences. This could be seen by observing the following case laws.
In State of Rajasthan v. Roshan Khan, the Supreme Court observed that if the investigating officer has produced evidences of sexual intercourse first from the stained clothes, the statements of the victim and the witnesses and the medical reports claiming sexual intercourse. After that the victim states that she has not consented to the sexual intercourse. If these evidences are obtained along with the statement of the witness, then the presumption under Section 118 of the Bharatiya Sakshya Adhiniyam.would be raised as to there was no consent for the sexual intercourse.
In Basudev Seal @ Jatayu Seal v. The State Of West Bengal, the accused made sexual intercourse with the victim, a woman of 45 years who was sleeping in her grocery shop and on the next day she filed a written complaint of the same alleging rape committed by the accused on her. The Calcutta High Court observed that it was the burden on the accused to prove that there was consent of the victim for sexual intercourse as it has been provided under Section 114A of the Indian Evidence Act. If the defense fails to rebuts the presumption, then the court shall believe the presumption as the truth.
The Bombay High Court made the following observation in the case of Sandip Pandurang Kadam v. The State Of Maharashtra, where it was alleged by the prosecutrix that she, while working in her field was confronted by the accused and gagged her mouth and forcibly had sexual intercourse with her. The High Court while appreciating the facts and circumstances of the case observed that, the presumption of absence of consent under Section 114A cannot be seen as a truth from the very beginning, the presumption only a rule of evidence and it is rebuttable. The statements provided by the prosecution story is missing many links and the statement of the victim also is not stable. Presumption of the absence of consent should be reliable based upon the other evidences provided. Here the prosecution statement cannot be believed to be truth as there is lack of unimpeachable evidence against the accused and therefore, the accused was extended with the benefit of doubt and thus, acquitted.
In Dilip and Anr v. State of Madhya Pradesh,a case where the victim alleged that the two accused entered her house in the absence of her guardian and lifted her up and threw her into a room and thereby forcibly committed sexual intercourse on her. The victim narrated the entire incident to her guardians and on the next day approached the police station and filed a complaint. But on medical evidence no corroborative evidence that support the prosecution case could be found. There were contradictions in the statements given by the prosecutrix in the FIR and in the court. Since the statements by the prosecutrix failed to inspire the confidence of the court, the accused was given the benefit of doubt and was acquitted.
In Govt of NCT Delhi v. Sant Ram, the prosecution story was that the prosecutrix, a 11th standard student was raped by the two friends (accused) of her brother in the pretext of taking her to the hospital where her brother according the accused, met with an accident is admitted. The family members of the prosecutrix came to know of the incident only after fourteen days. The court observed that though there is a presumption relating to the absence of consent, the nature and circumstances of the crime should be having a reasonable link. Since, the prosecutrix and her family were residing in single room house, it was highly improbable that they would not come to know of the incident. Also, the Forensic lab report was also not corroborative to the statements of the prosecutrix. Further, the defense had also raised the contention that they were being targeted because the brother of the prosecutrix was involved in another offence of which they are the witnesses. Considering all these factors, the court observed that the case was of a malicious nature and the accused were targeted and also the prosecutrix statements were unreliable therefore, the accused were acquitted.
From the above analysis of a few case laws that could be seen to have relied on the Section 118 of the Bharatiya Sakshya Adhiniyam., it could be seen that the courts stating repeatedly that the version of the prosecutrix cannot be considered as gospel truth, there statements of the prosecutrix should be corroborated with other evidences in order to establish the guilt of the accused.
However, if by looking more carefully at the Section it is evident that the ‘court shall presume’ is the wordings used here which means it is mandatory for the court to presume and there is no room for any judicial discretion that to presume there was no consent from the part of the prosecutrix for the sexual intercourse. Further, it shall be the duty of the defense to prove that the sexual intercourse was a consensual affair.
Putting things in a simplifies manner if there exists evidence as to the sexual intercourse being committed and the prosecutrix states that she had not consented for the same the court shall presume that there was no consent and the accused had committed the offence of rape. The hands of the judges seem to have been tied here.
CONCLUSION
Section 118 of the Bharatiya Sakshya Adhiniyam (BSA), 2023. requires an imminent amendment that lays out certain guidelines that forms the basis for raising the presumption against the accused with regard to the absence of consent when sexual intercourse has been proved. Evidence of sexual intercourse and the statement of the prosecutrix itself is not capable enough to raise the presumption. The dangers of such a provision is many which have been discussed earlier in this chapter. It is also pertinent to note that the presumptions that deviate from the basic tenets of criminal jurisprudence are necessary in certain circumstances but that should not be at the cost of sacrificing the basic rights of the accused. Thus, it is necessary that there exists a balance between the rights of the accused and the power of the state.