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Flaw in the law: Custodial rape, inadequate evidence and acquittal

By Rakesh Shukla

The lack of convictions in cases of custodial rape raises serious questions about the workings of the law

In another blow to women's hopes of getting justice through the courts, the Sessions Court of Delhi on March 16 acquitted sub-inspectors R S Sharma and Jaipal Singh of custodial rape on grounds of "lack of evidence". The incident took place within the precincts of the Tilak Marg police station, barely a stone's throw from the Supreme Court.

On July 9, 1995, a domestic worker who rebuffed the advances of her employer was falsely accused of theft, taken to the first-floor room of sub-inspector Sharma and raped. No medical tests were conducted. Neither was there any test-identification parade.

The lack of convictions in cases of custodial rape raises serious questions about the workings of the law.

More than two decades ago, a public campaign over the acquittal by the Supreme Court of constables Tukaram and Ganpat accused of custodial rape (disbelieving the testimony of the prosecutrix Mathura in 1979) finally led to the Criminal Law Amendment in 1983. Section 114-A, introduced in the Indian Evidence Act by this amendment, lays down that the court shall presume lack of consent in cases of custodial rape where sexual intercourse by the accused is proved and the woman states that she did not consent. Rape by police officers, public servants, jail, hospital and remand home staff and gang rape are included in the section. The widespread impression was that the burden of proof in cases of rape in police custody had been shifted onto the accused.

The amendment, however, seems to have had little effect and merits closer examination.

Contrary to popular impression, no overall shift of burden-of-proof was brought about by the amendment. The legal position is not that the accused has to prove his innocence in cases of custodial rape. The prosecution has to first establish the factum of sexual intercourse. The entire gamut of lodging a first information report (FIR), medical examination, recording of statements by the police and depositions in court have to be gone through. Delays in lodging FIRs, delays in medical examinations, inconsistencies in FIRs, contradictions in statements made to the police and testimonies in court remain prime factors in the accused's defence.

The rape survivor still has to undergo the humiliating experience of seizure of her clothes, preparation of vaginal smear slides and pubic hair and tests for the presence of spermatozoa, as these remain a necessary part of the evidence to be adduced by the prosecution. In addition, the rape survivor has to undergo grueling and offensive cross-examination on every detail of the incident. Just the woman's word is not enough to shift the burden of proof.

Further, the prosecution has to prove that it was the accused specifically who committed sexual intercourse with the prosecutrix. This means the victim has to go through the trauma of repeated test-identification parades. In addition, the prosecution has to adduce circumstantial as well as medical evidence to establish the identity of the perpetrator. It is only after the establishment of all these facts that the presumption of lack of consent arises. An analysis of judgements makes clear the reasons for lack of convictions despite presumption.

Firstly, the presumption is a rebuttable one. The accused has a right to disprove lack of consent. Unfortunately, the evidence adduced by the accused in the process of establishing the fact that the woman consented takes us right back to the pre-amendment era. Presence or absence of injury on the body of the rape survivor remains a vital factor in deciding whether the act of sexual intercourse was committed with or without consent. Submissions like: "The prosecutrix was examined by Doctor A. The doctor found no injuries on any parts of her body including to her private parts," still weigh heavily with the courts in acquitting or convicting the accused. Lack of corroboration from medical evidence is a strong line of defence for the accused.

Contentions that, "the prosecutrix being a married woman, she was habituated to sexual intercourse and it was for this reason that Dr A opined that no opinion as regards commission of rape could be given," or "the prosecutrix had stated that the accused had beaten her, however no external marks of injuries were found and therefore her testimony should be thrown overboard" still find favour with the courts, leading to acquittals. Lack of injury as evidence of "non-resistance" remains a constant theme that is given undue weightage by the courts regardless of the element of threat, fear and paralysis inhibiting fighting back.

Similarly, lack of immediate disclosure of the incident to relatives and neighbours, not raising the alarm, delays in registering complaints with the police and delays in medical examinations remain prime weapons in the armoury of the accused. The understandable trauma of a rape survivor, feelings of shame, fear of abandonment by husband and family, social ostracism and viewing the victim as a criminal or "complicit" contribute to the silence and delays. These socio-psychological factors are not taken cognisance of by a hidebound judicial mind.

Reluctant judicial recognition of the amendment and its swamping under pre-conceived notions is best illustrated by Justice S K Chawla in a 1992 case: "It must however be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals."

The judgement goes on to declare: "In conclusion, having regard to the conduct of the prosecutrix in not making any kind of complaint about the alleged incident to anybody for five days, coupled with late reporting by her after five days with false explanation for delay in the context of the lax morals of the prosecutrix, it is very unsafe to pin faith on her mere word that sexual intercourse was committed with her by five persons or any of them."

The deletion, in the last winter session of Parliament, of Section 155(4) in the Evidence Act which permitted the impeachment of character of the prosecutrix, while a welcome progressive step is unlikely to have much impact on judicial attitudes. The virtual burial of the 1983 amendment which had raised hopes for a more enlightened jurisprudence under ponderous judgements is a pointer and brings home sharply the words of Justice Krishna Iyer in a pre-amendment case: "Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it."

(Rakesh Shukla is a Supreme Court advocate)

(InfoChange News & Features, March 2004)