SECTION 114A OF INDIAN EVIDENCE ACT, 1872 with IMPORTANT JUDGMENTS Disha Gupta LANDMARK JUDGMENT Wed, Nov 27, 2019, at ,08:00 AM WHAT IS SECTION 114A OF THE INDIAN EVIDENCE ACT, 1872- Section 114A of Indian Evidence Act, 1872 deals with Presumption as to the absence of consent in certain prosecutions for rape - It states that “According to Section 114A of the Indian Evidence Act, 1872 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.” Section 114A was inserted into the Indian Evidence Act 1872 by the Criminal Laws Amendment Act of 1983. ESSENTIAL CONDITIONS FOR THE APPLICATION OF SECTION 114A OF THE INDIAN EVIDENCE ACT, 1872- The following Conditions are to be satisfied with the application of Section 114 of the Indian Evidence Act 1872. The Accused must be prosecuted for rape under Clause (a) or (b) or (c) or (d) or (e) or (g) of Subsection (2) of Section 376. Clause (f) has been excluded because sexual intercourse with a girl under sixteen years is rape even if she has consented. It must be proved that the accused had sexual intercourse with the women. The only question in the issue must be whether sexual intercourse was with her consent The woman should depose before the Court that she did not give her consent. If the above-mentioned conditions are satisfied the Court shall presume the absence of consent and the burden of proving consent will be on the accused. If he cannot prove consent he cannot be acquitted. The presumption under this Section is a presumption of Law. A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. IMPORTANT JUDGEMENTS STATE OF ORISSA V. DAMBURU NAIKO AND ANOTHER, 1992 AIR 1161 Bench- Justice Ramaswamy Date of Judgement- 31 March 1992 Facts of the case- The case of prosecution is that on a fateful day the victim Bhotruni along with other girls went to Papadahandi to witness the Dussehra festival. At about 4.00 pm, while they were returning home, one of the girls, the victim was ahead of them and when they reached inside the forest, the appellants and two others gagged her mouth and kidnapped into the forest, covered her eyes with a piece of cloth and threatened to kill her if she would raise cries. They made her to lie down on the ground and raped her one after another. The other girls ran back Papadahandi and reported, to the police on duty in the festival, of the incidence and the girl who suffered. The constable came along with them. They found the victim’s eyes covered with a piece of cloth and that she was crying. She was taken to Papadahandi. She laid the complaint. The accused were arrested on October 31, 1977. Judgement of the Case- The court was of the view that it is not necessary that there would be corroboration to the evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would be sufficient to convict the accused. We need not see corroboration to the evidence of the victim. She was a simple village girl and she will not leave out her own assailants and implicate falsely other innocent persons with the allegation that she was raped by them. Further it said that even if they seek to corroboration the injuries on her private parts; medical evidence of the doctor and her first information report provides such corroboration. The court accepted her evidence as truthful. Thus the appeal was accordingly allowed. The judgment of High Court and the order of acquittal of the respondents were set aside. The judgments and convictions and sentences recorded by the trial court and affirmed by the Sessions Courts were restored and the respondents were made to surrender and serve out the sentences. BHARWADA BHOGINBHAI HIRJIBHAI V. STATE OF GUJARAT, 1983 AIR 753 Bench- Justice MP Thakkar Date of Judgement- 24 May 1983 Facts of the Case- The incident occurred on Sunday, September 7, 1975, at about 5-30 p.m. at the house of the appellant. The evidence of prosecution witness (P.W.) 1 and prosecution witness (P.W.) 2 shows that they went to the house of the appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who happened to be their friend. The appellant induced them to enter his house by creating an impression that she was at home, though, in fact, she was not. Once they were inside, the appellant closed the door, undressed himself in the presence of both the girls, and exposed himself. He asked P.W. 2 to indulge in an indecent act. P.W. 2 started crying and fled from there. P.W. 1, however, could not escape. She was pushed into a cot and was made to undress. The appellant sexually assaulted her. P.W. 1 was in distress and was weeping as she went out. She, however, could not apprise her parents about what had transpired because both of them were out of Gandhinagar (they returned after 4, or 5 days). Judgement of the Case- The Supreme Court stated that “in the Indian setting, refusal to act on the testimony of a victim of sexual assault in absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted lens tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominant society.” On principle the evidence of the victim of sex assault stands on par with evidence of the injured witness. Just as a witness who has sustained injury is not likely to exculpate the real offender, the evidence of a victim of sec offense is entitled to great weight, absence of corroboration notwithstanding. STATE OF MAHARASHTRA V. CHANDRA PRAKASH KEWALCHAND JAIN, 1990 AIR 658 Bench- Justice AM Ahmadi Date of Judgement- 18 January 1990 Facts of the Case- In this particular case one M aged fell in love with Shamimbanu, aged 19 left their residential town and entered into marriage through a Kazi. The accused police officer found them in a hotel room, brought them to the police station and then on the next night sent the girl to another hotel. Having thus separated the couple and finding the girl thoroughly helpless forcibly removed her “kurta” and threw it away. He gagged the girl’s mouth and threatened her with dire consequences if she did not submit. He then threw the girl on the cot and forcibly removed her “salwar” and denuded her. He then had sexual intercourse with her, notwithstanding her protestations. After satisfying his lust, the accused left threatening that he would bury both of them alive if she complained to anyone. Judgement of the Case- The Supreme Court was of the opinion that “the nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. They further stated that, there should be no doubt that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness.” Hence the court observed that a prosecutrix of a sex-offense cannot be put on par with an accomplice. She is in fact a victim of the crime.