RULE OF PRESUMPTION IN RAPE CASES

B.A. LL.B. (INTEGRATED LAW DEGREE COURSE)

LAW OF EVIDENCE (VI SEMESTER)

“PROJECT WORK”

“RULE OF PRESUMPTION IN RAPE CASES”

SUBMISSION TO: SUBMITTED BY:

MR. ANANT KOOLWAL SUNIL GURJJAR

FACULTY OF LAW OF EVIDENCE 17RU12006

DESIGNATION: ASSISTANT PROFESSOR SESSION:-2017-2022

SEMESTER:-VI

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ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to MR. ANANT
KOOLWAL for inspiring me and guiding me during the course of this project work and also for
her cooperation and guidance from time to time during the course of this project work on the
topic “RULE OF PRESUMPTION IN RAPE CASES”.

Date of Submission: 09-06-2020

Name of Student: SUNIL GUJJAR

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TABLE OF CONTENTS

Introduction .......................................................................................................................... 4

Presumption in Criminal Law for Crime against Women....................................................... 5

Presumption in Crime of Rape (IPC 376) ........................................................................... 5

Case Study ............................................................................................................................ 6

Conclusion .......................................................................................................................... 13

BIBLIOGRAPHY ............................................................................................................... 14

REFRRENCES BOOKS.................................................................................................. 14

Websites Referred ........................................................................................................... 14

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INTRODUCTION

Presumptions can be defined as an affirmative or negative inference drawn about the truth or
falsehood of a fact by using a process of probable reasoning from what is taken to be granted.
A presumption is said to operate where certain fact are taken to be in existence even there is no
complete proof. A presumption is a rule where if one fact which is known as the primary fact
is proved by a party then another fact which is known as the presumed fact is taken as proved
if there is no contrary evidence of the same. It is a standard practice where certain facts are
treated in a uniform manner with regard to their effect as proof of certain other facts. It is an
inference drawn from facts which are known and proved. Presumption is a rule which is used
by judges and courts to draw inference from a particular fact or evidence unless such an
inference is said to be disproved.

Presumptions can be classified into certain categories:

 Presumptions of fact.
 Presumptions of law.
 Mixed Presumptions.

Presumptions of fact are those inferences which are naturally and logically derived on the
basis of experience and observations in the course of nature or the constitution of the human
mind or springs out of human actions. These are also called as material or natural presumptions.
These presumptions are in general rebuttable presumptions.

Presumptions of law are those inferences which are said to be established by law. It can be
subdivided into rebuttable presumptions of law and irrebuttable presumptions of law.
Rebuttable Presumptions of law are those presumptions of law which hold good until they are
disproved by evidence to the contrary. Irrebuttable Presumptions of Law are those
presumptions of law which are held to be conclusive in nature. They cannot be overturned by
any sort of contrary evidence however strong it is.

Mixed Presumptions are certain inferences which can be considered as observations of law
due to their strength or importance. These are also known as presumptions of mixed law and
fact and presumptions of fact recognized by law.

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PRESUMPTION IN CRIMINAL LAW FOR CRIME AGAINST WOMEN

Presumption in Crime of Rape (IPC 376)

Section 114A of Indian Evidence Act and the following commentaries are taken from 185th
report of Law Commission. The report discusses various proposed amendments, and gives the
present text of the section and rationale behind its present form.
Section 114A: This section deals with ‘presumption as to absence of consent in certain
prosecutions for rape. It reads as follows:

“114A. 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, 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.”

This section was inserted by the Criminal Law (Amendment) Act 1983 (43 of 1983) w.e.f.
25.12.1983. This Section was introduced because of the increasing number of acquittals of
accused in cases of rape. If she had been raped at a place where none could have witnessed –
as it happens in most cases – the prosecution would find it difficult to prove the offence beyond
reasonable doubt. Sometimes, medical or DNA evidence is available and more often, it is not
available. 1
The law before this amendment of 1983 virtually treated a prosecutrix, a victim of rape as an
accomplice requiring her statement to be corroborated as a matter of prudence. An Allahabad
case first tried to emerge out of the impasse by laying down that the cases of rape involving
bad reputation of the family of the victim herself, seldom are brought to court, and if brought,
are with greatest reluctance and therefore if a girl does not come forward and alleges that she
had been raped, her evidence should carry more weight than the evidence of an ordinary
witness. This decision did not lay down however that in rape case the evidence of the
prosecutrix needs no corroboration. Nor could it could lay down so because of the host of
Supreme Court decisions laying down the rule that as a matter of prudence court should search

1
http://menrightsindia.net/2016/05/presumptions-in-law-in-crimes-against-women-and-matrimonial-law.html

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for such corroboration. In a Supreme Court case however, it was held that conviction on a
charge of rape on uncorroborated testimony of the prosecutrix was legal. 2
The first in the lute was first noticeable in a Supreme Court case which stated that in rape
cases. Courts must bear in mind human psychology and behavioral probability when assessing
the testimonial potency of the evidence of the victim-prosecutrix. The inherent bashfulness,
the innocent naivete and the feminine tendency to conceal the outrage of the masculine sexual
aggression are factors relevant to improbabilise the hypothesis of false implication. The tender
years of the child coupled with other circumstances may render corroboration unnecessary but
that is a question of fact. In another case the Supreme Court said that hardly a sensitized judge
who sees the conspectus of circumstances in its totality rejects the testimony of rape victim
unless there are strong circumstances militating against its veracity.

THE PRESUMPTION IS MANDATORY BUT IS REBUTTABLE

There are several judgments of the High Courts which have applied sec. 114A in cases of rape
under sec. 376 of the Indian Penal Code. The next chapter discusses some important cases
dealing with Section 114A of Evidence Act.

CASE STUDY

1. Gagan Bihari Savant vs. State of Orissa 3

In the case of Gagan Bihari Savant, the evidence of the prosecutrix showed that she had
protested and struggled while she was subjected to forcible sexual assault by accused
persons. It was held that evidence showed absence of consent on the part of the victim,
even apart from the legal presumption under sec. 114-A.
The Supreme Court confirmed the conviction of all the persons involved in the gang-
rape. This position subsequently changed in the next case.

2. Dilip vs. State of M.P4

In the 2001 case of Dilip, the presumption was raised but it was held that in view of the
infirmities in the evidence, the place of rape was not proved.
It was held that while the sole testimony of the prosecutrix could be acted upon and
made the basis of conviction without being corroborated in material particulars, in view

2
https://www.lawteacher.net/free-law-essays/criminal-law/evidence-law-topic-discuss-10-cases-law-
essays.php#ftn1
3
1991(3) SCC 562
4
2001(9) SCC 452

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of the infirmities in the sole testimony of the prosecutrix which contradicted the medical
evidence as well as the evidence of the aunt of the victim to whom she had narrated the
incident soon after the commission of the rape, it was difficult to accept that consent
was not there. On the question of consent, though presumption under sec. 114A was
raised, no finding, it was held, need be recorded because of the finding that the
prosecutrix was a willing party. The appeal was allowed and the appellant was acquitted
in the Supreme Court.

3. State Of Orissa Vs. Damburu Naiko And Another5

The case of prosecution is that on the fateful day the victim Bhotruni along with other
girls, PWs. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00
p.m.while they were returning home, PW. 1, the victim was ahead of them and when
they reached inside the forest, the appellants and two others gagged the mouth of PW.
1 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. PWs. 2 to 4
ran back Papadahandi and reported, to the police on duty in the festival, of the incidence
and PW. 5, 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.

Judgment

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 PW. 1. 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 for corroboration the injuries on
her private parts; medical evidence of the doctor and her first information report
provides such corroboration.
The court wholly 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

5
1992 AIR 1161, 1992 SCR (2) 393

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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.

4. Bharwada Bhoginbhai Hirjibhai Vs. State Of Gujarat 6

In this case, the incident occurred on Sunday, September 7, 1975, at about 5-30 p.m. at
the house of the appellant. The evidence of P.W. 1 and 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 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).

Judgment

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
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 offence is entitled to great weigh, absence
of corroboration notwithstanding.

5. State Of Maharashtra Vs. Chandraprakash Kewalchand Jain 7

6
1983 AIR 753, 1983 SCR (3) 280
7
1990 AIR 658

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A brief narration of the facts may be apposite. In this particular case one M aged fell in
love with Shamimbanu, aged 19 left their residential town and entered into a 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.

Judgment

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, their 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-offence cannot be put on par with
an accomplice. She is in fact a victim of the crime.

6. Santana Ghosh V. State.

This is an interesting Calcutta High Court case decided on 13-11-1986 (long after
section 114-A having retrospective effect being brought into statute) where a girl
Santana by name gave evidence that the accused after forcibly ravished her consoled
her saying that he would marry her. Santana believing the promise did not disclose
anything about the sexual assault. Later she allowed the accused to have sexual relations
with her resulting in her being pregnant.

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Judgment

The learned Judge in his considered judgment searched for corroboration of the
testimony and having found it upheld conviction. The court stated that “the Evidence
Act being retrospective, no matter when the sexual union took place, the version of the
girl was enough to tilt the balance. Search for corroboration was an exercise in futility.

7. Banti Alias Balvinder Singh Vs. State Of Madhya Pradesh.8

The prosecutrix was near a culvert of village Shyampur, a jeep overtook her. The jeep
was being driven by accused Jagtar Singh. Three more Sikhs were seated in the jeep.
Accused Jagtar Singh was a contractor in the village in which Kuntibai lived i.e. in
village Nathela. He offered to give lift to Kuntibai. Kuntibai declined the offer. It was
further the prosecution case that two of the Sardars seated in the jeep then forcibly
dragged Kuntibai into the jeep. Kuntibai whisked away to Chhindari camp, being the
work site of accused Jagtar Singh. She was forcibly made to consume liquor at the
camp.
A fifth Sikh by name Banti (appellant in the present appeal) joined the other Sikhs in
the camp. All the five Sikhs then forcibly ravished Kuntibai one by one on that night.
On the following morning Kuntibai managed to slip away and came to her own house
in the same village. She made a report (Ex. P-2) of the incident after 5 days i.e. on 25-
8-1985 at 12.30 p.m. The said report expressly named Jagtar Singh and Banti as two of
the five ravishers.

Judgment

The court stated that 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
recording of report by her after five days with false explanation for the delay, in the
context also of the lax morals of the prosecutrix, the court found it is very unsafe to pin
faith on her mere word that sexual intercourse was committed with her by five accused
persons or any of them. The court also found it difficult to believe her version regarding
her alleged abduction in the jeep.

8
1992 CriLJ 715.

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Thus in the circumstances, the court held that the prosecution story was not
satisfactorily established and the presumption stood rebutted and accused acquitted.

8. Kuldip Singh And Anr. Vs. State Of Punjab.9

The prosecutrix and her mother, as usual, on 8-12-89 at about 3.00 p.m. were cutting
grass for the cattle from the field. This field belongs to Chet Singh son of Chattar Singh
Jat, resident of Sante Majra and Arhar (cereal) crop was standing in the field. She was
cutting the grass on the eastern side and her mother was cutting the grass on the western
side of the field. A man who is known as Fauji came from the side of motor situated
near eucalyptus trees.
He told her that he’s am seeing her for the last three days, today is the last day. He
caught hold of her from her left arm and threw away the khurpa. She fell down on the
ground. Then he broke the string of her Salwar and against her will blackened his face
with her’s (committed rape). Then another person came at the spot, who had a new
tubewell nearby. He also has blackened his face with her (committed rape) against her
will and consent. And when she raised alarm both the persons ran away.

Judgment

The High Court had acquitted the respondents therein on the ground that the victim
identifying the said respondents could not be relied upon as there was no corroboration
to her evidence and that when there was a gang rape there could be several injuries on
the person of the victim which were absent. Therefore, the victim therein was held by
the High Court to be a consenting party.
This was set aside by the Hon'ble Supreme Court. It was held that the victim was a
simple village girl and she would not leave out her own assail ants and implicate falsely
other innocent persons with the allegation that; she was raped by them. Besides, even
if corroboration was sought the injuries on her private parts: medical evidence of the
doctor and her First Information Report provide such corroboration. Her evidence was
accepted as truthful. There to no reason for her to falsely implicate the appellants. Thus
the court found them guilty of committing rape, which was affirmed.
9. Pradeep Kumar V. State of Bihar. 10

9
II (2004) DMC 628.
10
AIR 2007 SC 3059.

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The appellant assured the second respondent that he would marry her, relying in this
she consented to sexual intercourse. When this went on for some time, the appellant
took the second respondent to a temple where in the presence of deity he accepted her
to be his wife and there was an agreement of marriage entered into. Alleging that the
accused was likely to get married with some other lady, an FIR was lodged.
Investigation was undertaken and statements were recorded under s.164 of CrPC
wherein it was accepted that first with a promise of marriage, the accused had physical
relationship with her and then had married her. Since the accused disowned having ever
married her, she was forced to file the FIR. After investigation, charge sheet was filed
wherein it was indicated an offence punishable under Ss.376 and 406 of IPC was made
out.

Judgment

The case first reached the trial Court, then it went to the High Court and finally to the
Apex Court. The case came up before a Division Bench of the Apex Court consisting
of Hon’ble Justice Dr. Arijit Pasayat and Hon’ble Justice D.K.Jain. The High Court
affirmed the order of the Trial Court of convicting the accused under Ss.376 and 406
of IPC.
Setting aside the order of the High Court, the Supreme Court held that a promise to
marry without anything more will not give rise to ‘misconception of fact’ within the
meaning of s.90, it needs to be clarified that a representation deliberately made by the
accused with a view to elicit the assent of the victim without having the intention or
inclination to marry her, will vitiate consent. If on the facts it is established that at the
very inception of making the promise, the accused did not really entertain the intention
of marrying her and the promise to marry held out by him was a mere hoax, the consent
ostensibly given by the victim will be of no avail to the accused to exculpate him from
the ambit of s.375 clause second.
In reaching this conclusion the court mainly relied on Jayanti Rani Pandas case. The
Apex Court asked the High Court to give a fresh look into the matter.

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CONCLUSION

The standard and onus of proof in the case of rape has not been changed by section 114A of
the Evidence Act. It has only created a presumption qua the consent of the prosecutrix. Section
114A provides that in a prosecution for rape under sub-section (2) of section 376 of the IPC,
when there is an allegation of rape the question whether it was without consent of the
prosecutrix, the court shall presume that the she did not give her consent. In case of rape where
it is established that there had been intercourse, and if the prosecutrix states in her evidence
before the court that she did not consent, then the court shall presume that she did not consent.
The Evidence Act nowhere says that the victim’s evidence cannot be accepted unless it is
corroborated in material particulars. The victim is undoubtedly a competent witness under
section 118 of the Indian Evidence Act, and her evidence must receive the same weight as it is
attached to an injured in cases of physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an injured complainant or witness.
What is necessary is that the court must be alive to and conscious of the fact that it is dealing
with the evidence of a person who is interested in the outcome of the charge leveled by her. If
the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix,
there is no rule of law or practice incorporated in the Evidence Act which requires it to look
for corroboration of evidence. If for some reason the court is hesitant to place implicit reliance
on the testimony of the prosecutrix it may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of an accomplice.

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BIBLIOGRAPHY
REFRRENCES BOOKS
 Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011

 Monir, M. Law of Evidence. Delhi: Universal Law Publishing, 2006

 Krishnamachari, V.Law of Evidence. Hyderabad: S.Georgia & Company, 2012

 Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007

 Myneni, S.R. The Law of Evidence. Asian Law House, 2008

WEBSITES REFERRED
 https://www.lawteacher.net/free-law-essays/criminal-law/evidence-law-topic-discuss-
10- cases-law-essays.php#ftn1

 http://menrightsindia.net/2016/05/presumptions-in-law-in-crimes-against-women-
and- matrimonial-law.html

 http://www.legalservicesindia.com/article/article/presumption-as-documents-30-
years- old-532-1.html

 http://www.saveservices.org/sexual-assault/presumption-innocence

 http://www.legalserviceindia.com/articles/rape_laws.htm

 http://www.shareyouressays.com/119150/presumptions-in-rape-cases-under-section-
114- a-of-indian-evidence-act

 http://www.legalindia.com/rape-laws-in-india/

 https://blog.ipleaders.in/judiciary-interprets-consent-rape-cases/

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