In recent years, heightened awareness and advocacy surrounding issues of sexual misconduct have prompted a critical reexamination of legal processes and societal attitudes towards sexual offense cases. Central to these discussions is the bedrock principle of the presumption of innocence—a cornerstone of justice enshrined in legal systems worldwide. This presumption asserts that individuals accused of crimes are deemed innocent until proven guilty beyond a reasonable doubt. However, in the context of sexual offense cases, the application of this presumption encounters a myriad of complexities and challenges.
Sexual offense cases present a unique set of hurdles for all parties involved—victims, defendants, prosecutors, and the judiciary alike. Evidentiary standards in such cases often rely heavily on testimonial evidence, making them susceptible to challenges of credibility and reliability. Furthermore, societal perceptions and biases surrounding issues of sexual assault and consent can influence the interpretation of evidence and the assessment of witness credibility.
From a legal standpoint, the presumption of innocence must be delicately balanced with the imperative to address allegations of sexual misconduct seriously and sensitively. While safeguarding the rights of the accused is paramount, so too is ensuring that victims receive justice and support throughout the legal process. This delicate balance underscores the multifaceted nature of the presumption of innocence in sexual offense cases.
In this paper, we embark on an in-depth exploration of the presumption in the context of sexual offense cases. By dissecting legal principles, examining case law, and considering societal implications, we aim to illuminate the nuanced considerations that underpin these proceedings. Through this inquiry, we seek not only to deepen our understanding of the legal landscape but also to contribute to ongoing discussions surrounding the fair and equitable adjudication of sexual offense cases within our legal system.
Presumptions
According to SECTION 4 OF Indian Evidence Act there are two kinds of presumptions-
Rebuttable Presumption
May presume- In instances where the Act specifies that the court “may presume” a fact, it presents the court with two options: it can either accept the presumption or reject it. If the court chooses to accept the presumption, the fact in question is considered proven unless proven otherwise. For instance, if A’s belongings are discovered stolen and found in B’s possession, the court “may presume” that B is the thief or knowingly received stolen goods from the thief. This provision is outlined in Section 114(a) of the Indian Evidence Act, 1872.
Shall presume– It is obligatory for the court to raise a presumption of fact whenever this Act directs the court to “suspect” something. Until and unless such a presumption is refuted, the fact will be considered proven once it is raised. S. 114A of the Indian Evidence Act of 1872, for instance.
Irrebuttable Presumption
Conclusive proof- When a fact is established by this act as the ultimate proof of another, the court cannot accept evidence that contradicts that declaration. As stated in S. 112 of the Indian Evidence Act of 1872, for instance, a birth during a marriage serves as the ultimate evidence of legitimacy.
Presumption is a legal concept that courts use to infer the existence of certain facts. It does not necessarily mean that the party that is deemed to be entitled to rely on the presumptive facts has the burden of proof. However, a presumption is a type of exception to the general rule that states that the party who claims to have established a particular truth has the original burden of proof. In other words, a presumption is an inference made about the truth or falseness of a fact by applying a process of likely-to-be-reasoned-reason to what is supposed to be true. A presumption operates even when there is no complete evidence of its existence. Presumption is the principle
that if one fact, known as the principal fact, is proven, another, known as the alleged fact, will be accepted as proven unless there is evidence to the contrary.
Presumption Of Innocence
The phrase ‘presumed innocence until proven guilty’ was coined by the British barrister and is one of the fundamental principles of any civilized society. Sir William Garrow argued that an accused person should be put to the test in a court and the judge or jury should be required to prove beyond any doubt that the accused did in fact commit the offence. This principle emphasizes that the onus of proving guilt lies with the prosecution and not with the accused person. By placing the onus on the prosecution or the accused person, the principal safeguards against the wrongful conviction and is an essential safeguard for the rights and integrity of the accused person. Garrow went on to argue that ‘presumed innocent’ is the ‘golden thread’ that runs through the English criminal law.’ The phrase was also used in a later case, Woolmington v. director of public prosecutions[1].
The Sixth-Century Digest of Justinian, in point 22.3.2, states, “As a rule, the proof lies with the one who proves it, not with the one who denies it.” It is attributed to the 2nd and 3rd-century jurist, Julius Paulus Pudentissimus, and was introduced into Roman criminal law by the Emperor Antoninus Pius.
In India, the common law system was inherited from British colonialism and hence the presumption of innocence was adopted. However, it is not explicitly mentioned in the Constitution of India. Though, it can be argued that the presumption of innocence is inherent in the criminal case law of our country. It can also be derived from Article 20 (3) of Constitution of India. It states that no person may be compelled to testify against himself. This is the right of self-incrimination. If this right is not granted, the burden of proof would fall on the accused, rather than the prosecution. In the case Data Ram v State of U.P.[2] the Supreme Court ruled that a postulate in criminal case law is the presumption of innocence. The burden of proof in Indian legal system is the responsibility of the prosecution to prove beyond reasonable doubt that the accused person committed the offence. The prosecution must present convincing evidence and legal arguments to prove the guilt of the accused person before the court. This burden serves as a check on the haphazard or arbitrary conviction of the accused person, as the prosecution must meet a high standard of proof before depriving the accused person of his liberty or punishment.
It was stated in Gurbaksh Singh Sibbia v. State of Punjab[3], that the presumption of innocence is “salutary and deeply grained in our criminal jurisprudence,” according to the Constitution Bench, but it is not mentioned as a component of Article 21, which protects the right to life and personal liberty. However, while reading Code of Criminal Procedure, 1974, section 438, which deals with giving anticipatory bail, it was noted that the amount of bail that might be granted could not be restricted due to irrational limitations that are specified in the section. Therefore, by these two pronouncements, the Supreme Court sort of established a relationship between the presumption of innocent and Article 21, even if it may not have said so clearly.
In recent years, the legal landscape surrounding sexual offense cases in India has come under significant scrutiny and reevaluation. Central to these discussions is the intersection between the presumption of innocence and the complex challenges posed by allegations of sexual misconduct. As the country grapples with issues of gender equality, women’s rights, and the prevalence of sexual violence, the application of this presumption in such cases has become a focal point of debate and analysis.
Importance In The Legal System
At its core, the presumption of innocence upholds the principle that the burden of proving guilt rests squarely on the prosecution, who must demonstrate the accused’s culpability beyond a reasonable doubt. This allocation of the burden serves as a vital check against the state’s immense power to accuse and punish individuals, fostering fairness, impartiality, and respect for individual rights. Moreover, it promotes public confidence in the legal system by affirming its commitment to fairness and justice for all.
Criminal Ammendment Act 2013
Before going into the provisions and sections related to presumptions of sexual offences i would like to focus on the criminal amendment act 2013 that was brought in by the Nirbhaya gangrape case also known as Mukesh & Anr v. State for NCT of Delhi & Ors[4]. Following the Delhi Gangrape, the Criminal Law (Amendment) Act, 2013 was hastily approved by the legislature in response to the outcry from feminist and civil society groups in India and throughout the world. In addition to amending existing laws, this legislation added Sections 53A, 114A, and 146 for the evaluation of evidence pertaining to sexual offenses. It is from this modification that India gets its rape-shield.
For some rape proceedings, Section 114A establishes the presumption of lack of consent. According to Section 53A, in some circumstances of rape (or attempt to rape) when the issue of consent is raised, the evidence of character or prior sexual experience is not relevant for the purpose of prosecution. Any character or prior sexual experience questions asked during a cross- examination are rendered moot by Section 146. These clauses are crucial because they close numerous doors to victimization and character assassination. Now we will see each of these sections in detail.
Presumption As To Absence Of Consent, SECTION 114A
The insertion of Section 114A in the Indian Evidence act came from the case of Tukaram v. State of Maharashtra[5]. In this case of Mathura, who was allegedly raped by police constables Ganpat and Tukaram, various courts reached different conclusions regarding her consent.
Initially, the Sessions Court acquitted the accused, suggesting that Mathura may have fabricated the story. However, the High Court acknowledged that passive surrender does not imply consent and criticized the policemen’s actions. Upon appeal, the Supreme Court overturned the High Court’s decision, emphasizing that the burden of proof always rests with the prosecution. The widespread resistance and the increasing incidence of crimes targeting women prompted significant revisions in rape laws and the passing of the Criminal Law (Amendment) Act, 1983. This legislation introduced several new sections into the Indian Penal Code of 1860, namely Sections 376A, 376B, 376C, and 376D. Additionally, Section 114A was incorporated into the Indian Evidence Act of 1872.
ESSENTIALS OF SECTION 114A to be valid-:
- Under Clause (a) or (b) or (c) or (d) or (e) or (g) of Subsection (2) of Section 376, the Accused must be prosecuted for rape. As sexual contact with a girl under the age of sixteen is considered rape even in cases when she gives her consent, clause (f) has been removed.
- The accused’s sexual interactions with the women must be proven.
- Whether or not she gave her consent to engage in sexual activity must be the only question in this case.
- It is recommended that the woman testify in court that she did not provide her consent.
The onus of establishing consent will be on the accused in cases where the requirements are met, and the court will presume the absence of consent. He cannot be pardoned if he is unable to show consent. This Section’s presumption is a legal presumption.
This section can be divided into three important parts. These are-:
- Presumptions
- Absent of consent
- Certain prosecution for rape
Presumptions are what we have already understood above.
Absence of consent: In rape trials, whether consent was given or not is the primary factor in determining the accused’s guilt or innocence. When a woman is sexually assaulted against her will, it is known as absence of consent.
Certain prosecution of Rape: These specific rape prosecutions are those listed in S 376 of the Indian Penal Code, 1860, clauses (a) through (n) of sub section (2).
Therefore, in accordance with S. 114A of the Indian Evidence Act, 1872, if the victim states that she did not consent to the rape and the accused is listed in clauses (a) to (n) of sub-section (2) of
S. 376 of the Indian Penal Code, 1860, the court must raise the presumption that there was no consent based on the accused’s proof of having had sexual relations. Consequently, the burden of proof generally rests with the accused refuting the claim that consent was lacking.
Case Laws
Rachana Singh v. State NCT of Delhi[6]
The Delhi High Court rendered this decision not too long ago. The Trial Court in this case acquitted the man who was accused of raping a lady. The victim, aggrieved by the Trial Court’s ruling, went to the Delhi High Court, claiming that Section 114-A of the Indian Evidence Act created a presumption of guilt. The High Court dismissed this allegation, ruling that ‘sexual intercourse by the accused must be proved’ for establishing the presumption of guilt under Section 114-A. The woman’s behavior was also tarnished by this act; in addition to refusing to submit to an internal investigation, she occasionally called the accused. The accused cannot be found guilty, the court said, because her behavior did not support her assertions and no evidence of sexual activity could be found.
State of Maharashtra v. Chandra Prakash Keval Chand Jain[7]
This case saw the session court convict the Sub-inspector of Police on charges of raping a recently married girl, but the High Court overturned the decision, reasoning that the victim’s testimony lacked independent witness support and medical evidence. The Session Court’s ruling was upheld by the Supreme Court, which overturned the High Court’s ruling. The Supreme Court’s reasoning held that each case’s unique facts and circumstances determine the degree of corroboration. Rather than being regarded as a rule of law, confirmation should only be used as a matter of caution. The witness’s testimony in this case was consistent and adequately supported by circumstantial evidence, such as the arrest of her husband, her transportation to the hotel room, and the accused’s failure to provide an explanation for his presence in the hotel room.
These were well-established grounds used by the Sessions Court to find the accused guilty.
Mohd. Eqbal v. State of Jharkhand[8]
The case in question involved gang rape. Two boys abducted a female from the vegetable market and sexually assaulted her. In this instance, the court decided that there is a presumption regarding the lack of consent in gang rape cases because no one would assent to two people at the same time. Therefore, Section 114-A would be immediately applicable, and no consent may be assumed, particularly in circumstances of gang rape.
State Of Orissa vs Damburu Naiko and Anr[9]
In this case the court believed that testimony from the rape victim does not always need to be supported by other sources. If her evidence gives the accused the confidence to tell the truth, that would be enough to find them guilty on its own. It is not necessary to obtain confirmation for the victim’s evidence. She was an ordinary rural girl, yet she would not spare her own attackers and would falsely accuse other innocent people of raping her. It went on to say that even if they wanted to verify the damage to her private areas, the doctor’s medical records and her initial information report would suffice.
Irrelevance Of Character In Rape Cases, Section 53a
According to the University of Cambridge, character is the particular combination of qualities in someone or something that makes them or it different from others.
The Criminal Law Amendment of 1872 included section 53A based on suggestions from the Justice JS Verma committee, which was established by the government following the terrible December 16, 2012, rape incident in Delhi. The committee was tasked with reviewing the current legislation and making recommendations for changes to the penal code to address cases of sexual violence. A wide range of suggestions, including new offenses, amendments, and even changes to the constitutional framework, were made by the committee. The Indian Evidence Act was also amended, resulting in the addition of a new section 53A.
SECTION 155(4)
Section 155(4) of the Indian Evidence Act dealt with the admissibility of earlier sexual experience of the victim in cases of rape or attempt to rape. The defence attorney was previously able to undermine the victim’s testimony by claiming that she was of “immoral character” through Section 155 (4) Indian Evidence Act. Many rape victims were discouraged from filing complaints because of this attack on her in the guise of a legally permitted cross-examination, which involved probing her prior sexual conduct, personal life, and other intimate topics.
A new section, section 146 Indian Evidence Act, was added to the Indian Evidence (Amendment) Act of 2002, which took effect on January 1, 2003, and removed section 155 (4) of Indian Evidence Act. The new regulation states that it is not acceptable to confront the prosecutrix during cross- examination regarding her overall morality. This made it possible for unjustified criticism of the victim’s earlier sexual activities to stop.
However, while examining a rape victim, a medical professional often needs to know about her past sexual encounters, behaviours, and practices. This is necessary to properly interpret the victim’s physical and vaginal findings because the injuries received from a violent sexual act in a virgin—someone who has never engaged in sexual activity—differ from those sustained in a person who has engaged in sexual activity in the past.
It is also that before this information is collected, the doctor must properly explain to the victim the purpose of collecting this information and how it would help her in her case to obtain justice by properly interpreting the physical and genital findings (the injuries sustained). She must also be explained the amendments of section 155(4) Indian Evidence Act. Otherwise, the victim of rape may be hesitant to part with this crucial information, as she will believe that this information, once given in the medical records, may be used against her by the defence lawyer.
This section states that in cases where the accused is charged with rape or an attempt to commit rape, evidence of the victim’s general immoral character or earlier sexual experience with any person shall not be relevant on the issue of consent or the quality of consent.
This provision is directly related to the topic of presumptions as to sexual offenses because it addresses the admissibility of evidence regarding the victim’s past sexual behaviour. By excluding such evidence from consideration on the issue of consent, Section 155(4) establishes a presumption that a person’s earlier sexual conduct or character is irrelevant to determining whether they consented to the sexual act in question. This presumption serves to protect the dignity and privacy of the victim and prevents the defence from attempting to discredit the victim based on their past sexual history.
In cases of sexual offenses, the focus should be on establishing whether the sexual act was consensual or not based on the circumstances surrounding the incident, rather than on the victim’s previous sexual behaviour. Section 155(4) reinforces this principle by limiting the admissibility of evidence regarding the victim’s past sexual experience, thereby supporting the presumption that consent should be determined based on the specific circumstances of the alleged offense.
Conclusion
In conclusion, the Indian Evidence Act contains several sections that pertain to the handling of sexual offense cases, including Section 146 which governs the scope of cross-examination. Additionally, provisions such as Section 114A and 114B establish presumptions related to consent in cases of sexual offenses. These sections aim to protect the dignity and rights of victims while ensuring fair and just legal proceedings.
The proviso added to Section 146, which prohibits questioning the victim about their general immoral character or previous sexual experience during cross-examination, reflects a recognition of the need to prevent victim-blaming and safeguard the privacy of victims in sexual offense cases. Furthermore, the presumptions established in Sections 114A serve to shift the burden of proof onto the accused and uphold the principle of innocent until proven guilty.
Overall, these provisions contribute to the creation of a legal framework that seeks to balance the rights of the accused with the protection of victims in sexual offense cases. By ensuring fair and respectful treatment of witnesses, including victims, and by establishing presumptions that prioritize victim consent, the Indian Evidence Act plays a crucial role in the adjudication of sexual offense cases.
In light of the sensitive nature of sexual offense cases, it is imperative for courts to adhere strictly to the provisions of the Indian Evidence Act and other relevant laws. Judges and legal practitioners must handle such cases with sensitivity, ensuring that victims are treated with dignity and respect throughout the legal process. Additionally, continued efforts should be made to enhance victim support services and improve investigative techniques to facilitate fair and effective adjudication of sexual offense cases.
Refrences
- The Indian Evidence Act, 1872. (n.d.). Lexis Nexis.
- The Law of Evidence (24th ed.). (2023). [English]. Central Law Agency.
- Garg, R. (2021, November 5). All you need to know about the burden of proof in anti-
- rape laws under the Indian Evidence Act – iPleaders. iPleaders. https://blog.ipleaders.in/all-you-need-to-know-about-the-burden-of-proof-in-anti- rape-laws-under-the-indian-evidence-act/
- To Repair a Damaged Rape-Shield. (2021, July 18). To Repair a Damaged Rape- Shield – the RMLNLU Law Review Blog. https://rmlnlulawreview.com/2021/07/18/india-rape-shield-laws/
- WORLD, I. L. (2018, July 28). SECTION 114A OF INDIAN EVIDENCE ACT, 1872 with IMPORTANT JUDGMENTS | Into Legal World. SECTION 114A OF INDIAN EVIDENCE
- ACT, 1872 With IMPORTANT JUDGMENTS | Into Legal World. https://intolegalworld.com/article?title=section-114a-of-indian-evidence-act- 1872-with-important-judgments
- Understanding S.114-A of the Indian Evidence Act, 1872. (n.d.). Understanding S.114-A of the Indian Evidence Act, 1872. https://legalserviceindia.com/legal/article-13994-understanding-s-114-a-of-the- indian-evidence-act-1872.html
[1] [1935] UKHL 1
[2] AIR 2018 SUPREME COURT 980, 2018
[3] 1980 AIR 1632, 1980 SCR
[4] AIR 2017 SUPREME COURT 2161
[5] 1979 AIR 185, 1979 SCR (1) 810
[6] AIRONLINE 2019 DEL 757
[7] 1990 AIR 658
[8] AIR 2013 SUPREME COURT 3077
[9] 1992 AIR 1161
Author: Fatima Faridi, 2nd Year LL.B (Hons) student at Amity University, Noida
