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Understanding S.114-A of the Indian Evidence Act, 1872

Rape is an unlawful sexual intercourse committed against the will of the victim. Such an act does have a negative impact on the victim in many ways, the impact could be both physical and psychological. There are chances where a victim could catch STIs (Sexually Transmitted infections), she can become pregnant, get panic attacks, and may also lead to suicidal thoughts, nightmares, insomnia, etc.

The main question regarding the innocence or guilt of the accused in the cases of rape depends on the absence or presence of consent and this leads the victim to go through the process of distressing cross-examination and distressing questions of the society. As a result, rape victims do not choose to report such acts.[1] In order to eliminate such fear from the minds of the victims, our legislature has taken various steps to provide enough support to women. One such provision is S. 114A of the Indian Evidence Act, 1872.

Historical Background:
In the year, 1979 a nationwide outrage took place due to the decision of the Supreme Court in the case Tukaram v. State of Maharashtra[2], and this led to radical changes in the rape laws governing India.

In this case, a 14 to 16-year-old girl, Mathura, eloped with her boyfriend, Ashoka, and Mathura's brother, Gama, registered a complaint that Ashoka and his family kidnapped her. All of them were called to the police station to record their statements. After completing all the formalities, everybody was asked to leave but Mathura was asked to stay back.

It was alleged that constable Ganpat raped her and head constable Tukaram fondled her private parts, the case went to the Sessions Court, and the court held that the sexual intercourse between the policemen and Mathura would not amount to rape as the act was consensual as there were no bodily injuries, hence, the court acquitted the accused.

The Bombay High Court held that the passive submission of the girl would not amount to consent and convicted the accused.

The Supreme Court reversed the decision of the High Court and held that as there were no bodily injuries, there was no resistance on the part of Mathura and the act would be treated as consensual sex. The onus lies on the prosecution to prove such an offense; hence, the accused were acquitted.

People showed their resentment by criticizing the judgment. This large-scale opposition and the alarming frequency of crimes against women led to major amendments in the rape laws and the enactment of the Criminal Law (Amendment) Act, 1983. S. 376 A, 376 B, 376 C, 376 D were added to IPC, 1860. S. 114 A was inserted in the Indian Evidence Act, 1872. It was substituted by the Criminal Law Amendment Act, Act No. 13 of 2013.

Analysis Of S. 114-A:

114A. Presumption as to absence of consent in certain prosecutions for rape.´┐ŻIn 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), 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 she 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). [3]

This Section can be understood clearly by dividing it into 3 parts:
  1. Presumptions
  2. Absence of Consent
  3. Certain Prosecution for rape.

Presumptions:
A presumption is an inference of fact drawn from certain other proven facts. It is an idea drawn on probable reasoning from something which is substantive. For e.g.- Mr. X saw Mr. Y holding a Smokey gun in his hand, from this, an inference can be drawn that Mr. Y might probably be the person who fired the gun as here it is a proven fact that Mr. Y was holding a smoky gun. This inference is nothing but a presumption.

According to S. 4 of the Indian Evidence Act, 1872[4], Presumption can be divided into:
  1. Rebuttable Presumption
  2. Irrebuttable Presumption
 
  1. Rebuttable Presumption:
    • May Presume- Whenever it is provided by this Act that the court 'may presume' a fact, then the court has two options with it, the court may either raise the presumption or it may refuse to do so. If the court raises such a presumption, then the fact shall be regarded as a proven fact until and unless it is disproved. For example, in a case where A's goods are stolen and are found in B's possession, then the court 'may presume' the fact that 'B' is the thief or has received the goods from the thief knowing them to be stolen. This is mentioned under S. 114(a) of the Indian Evidence Act, 1872.
       
    • Shall Presume- Whenever it is directed by this Act that the court 'shall presume' a fact, then it becomes mandatory for the court to raise such presumption. Once such presumption is raised, then the fact shall be regarded as a proven fact until and unless it is disproved. For example, S. 114A of the Indian Evidence Act, 1872.
       
  2. Irrebuttable Presumption:
    • Conclusive Proof- Whenever a fact is declared by this act as the conclusive proof of another, then the court shall not allow evidence to disprove that fact. For example, Birth during marriage is the conclusive proof of legitimacy as mentioned under S. 112 of the Indian Evidence Act, 1872.

Absence of Consent:
The main question regarding the innocence or guilt of the accused in the cases of rape depends on the absence or presence of consent. Absence of consent means when sexual intercourse with a woman is committed without the will of that woman.

There are cases where consent would also amount to rape:
  1. When the consent is obtained by putting the lady or any person in whom she is interested in the fear of death or injury.
  2. When the man knows that he is not the husband but the woman believes that they are lawfully married.
  3. When at the time of giving the consent, the woman is of unsound mind or intoxicated and she is unable to understand the nature and the consequences of the act to which she gives the consent.
  4. When the consent is obtained by a minor.
  5. When the woman has to give consent because of her disadvantaged behavior.

Certain Prosecution for Rape:
These certain prosecutions of rape are those which are mentioned under clauses (a) to (n) of sub-section (2) of S. 376 of the Indian Penal Code, 1860. They are:
  1. When rape is committed by the Police officer within his jurisdiction.
  2. Rape committed by a public servant.
  3. Rape committed by a member of armed forces deployed in an area by the central or the state government, in that area.
  4. Rape committed by the Jailor.
  5. When the doctor or any staff of the hospital commits rape on their patients or the staff.
  6. Rape committed by the relative, guardian, or teacher.
  7. Rape committed during the communal violence.
  8. When a person commits rape on a pregnant woman.
  9. Omitted by Act 22 of 2018.
  10. Rape on a woman who is incapable to communicate or give consent.
  11. Rape committed by a person having control or dominance over the woman.
  12. Rape on a woman suffering from mental or physical disability.
  13. When it is committed repeatedly on the same woman.
The person committing an offense under these clauses shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, and which may be extended to life imprisonment, i.e., for the rest of the life, and shall also be liable to fine.[5]

Therefore, according to S. 114A of the Indian Evidence Act, 1872, when rape is committed by those as mentioned under clauses (a) to (n) of sub-section (2) of S. 376 of the Indian Penal Code, 1860, and the victim states that she did not consent then it becomes mandatory for the court to raise the presumption that there was the absence of consent, on the proof of sexual intercourse by the accused.

As a result, the onus shifts on the accused to disprove the fact that there was the absence of consent.

Interpretation Of This Section By Various Courts In India:

In the case of State of Maharashtra v. Chandra Prakash Keval Chand Jain,[6] the Sub-inspector of Police who was alleged for raping a newly married girl was convicted by the session court but was later acquitted by the High Court on the ground that the victim's testimony was not corroborated by independent witnesses or by the medical evidence. The Supreme Court reversed the decision of the High Court and restored the judgment of the Session Court.

Reasoning of the Supreme Court- the court held that the degree of corroboration depends upon the facts and circumstances of each case. Corroboration should only be considered as a matter of prudence and not as a Rule of Law. The testimony given by the witness, in this case, was consistent and it was sufficiently corroborated by the circumstantial evidence, like, her husband being arrested, her being taken to the hotel room, the failure on the part of the accused to explain the reason behind his presence in the hotel room are well-established reasons by the Sessions Court to convict the accused.

In Rachana Singh v. State NCT of Delhi,[7] the Trial Court acquitted the accused. An appeal was filed in front of the Delhi High Court to raise the presumption as mentioned under S. 114 A of the Indian Evidence Act, 1872. The High Court upheld the decision of the Trial Court and acquitted the accused.

Reasoning of the High Court- the court held that to raise the presumption as mentioned under S. 114 A of the Indian Evidence Act, 'sexual intercourse by the accused must be proved'. Due to the inconsistency in the statements of the woman and her refusal for medical examination, the presumption under S. 114A could not be raised.

In Mohd. Iqbal v. State of Jharkhand,[8] two boys who were alleged for gang rape were convicted.

Reasoning of the Court- the court held that in the cases of gang rape, the presumption as to the absence of consent, under S. 114 A should be raised as nobody can be a consenting party to several persons simultaneously.

In the State of Himachal Pradesh v. Shree Kant Shekari, [9]the teacher who was accused of raping a minor girl was convicted by the Trial Court. The High Court acquitted the accused on the grounds of insufficient evidence, and delay in lodging F.I.R. The Supreme Court restored the judgment of the Trial Court and convicted the accused.

Reasoning of the Supreme Court- The court held that cases of sexual violence must be dealt with utmost sensitivity. The girl was minor and her consent would be immaterial. The delay in lodging F.I.R. was sufficiently explained by the unusual circumstances. The victim's testimony does not require any corroboration as she was not the accomplice to the crime.

Impact Of S. 114a On Justice System:

S. 114 A of the Indian Evidence Act, 1872, shifts the onus on the accused to prove his innocence by disproving the absence of consent on the part of the victim. As the victim's testimony is given more weightage without much corroboration, this may lead to false accusations. Rape is considered a heinous crime and the accused in such cases face social ostracism. People mentioned under (a) to (n) of subsection (2) of S. 376 are highly respected. Doctors, members of the Armed Forces, Teachers, Police Officers, etc. have a very good reputation in society.

Any false accusation of rape would have a great impact on their reputation and their career even if at a later stage it is proven that such an accused has not committed rape. It could be used as a means to implicate an innocent by a motivated party or a party with malign intentions. Hence, there are chances that S. 114A of the Indian Evidence Act could be misused.

But, just in fear of it being misused, we cannot stop our legislature from making stringent rape laws. The legislature while making such laws has recognized the vulnerability of women in situations of rape. Such laws reduce the humiliation of the victim by avoiding unnecessary questions about her consent.

Doctors, Police Officers, Teachers, and superiors in the office are all holding a position of power, they are well educated and when rape is committed by these persons in positions of authority, the situation of the victim becomes more vulnerable as they can further use their power to get acquitted from the case leading the victim to face several questions from the society on her character, resulting in such cases to go unreported. Hence, laws like S. 114 A encourages reporting of such crimes and act as a deterrence for other rapists.

Conclusion:
S. 114 A is a progressive step taken by our legislature to protect the rights of a rape victim. It shifts the onus on the accused, encouraging the rape victims to report such cases, and creates deterrence in the minds of perpetrators. This section is limited to S. 376 (2) but it should also be extended to S. 376 D because one cannot give consent simultaneously to several parties.

As there are chances of this Section to be misused, the court while raising this presumption should focus on the consistency of the testimony of the victim, it should also provide the accused enough opportunity to rebut this presumption, circumstantial evidence must also be taken into account, if the accused is discharged on the ground of false charges he must be provided with adequate compensation and damages. A provision for penalizing the party making false accusations in these certain cases of rape should also be incorporated. This would prevent the misuse of this Section.

S. 114A prevents any other girl from suffering like Mathura and plays a major role in ensuring Justice and empowerment of women who are subjected to sexual assault.

End-Notes:
  1. Barstow, Anne L.. "rape". ENCYCLOPEDIA BRITANNICA, 16 Oct. 2023, https://www.britannica.com/topic/rape-crime. Accessed 19 October 2023.
  2. Tukaram v. State of Maharashtra, AIR 1979 SC 185 (India).
  3. The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, (India).
  4. The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, (India).
  5. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860, (India).
  6. State of Maharashtra v. Chandra Prakash Keval Chand Jain, 1990 SCR (1) 115 (India).
  7. Rachna Singh v. State NCT of Delhi, 2019 SCC Online Del 8519 (India).
  8. Mohd. Iqbal v. State of Jharkhand, AIR 2013 SC 3077 (India).
  9. State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404 (India).

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