Evidence of prosecutrix in rape cases

By : Carlisle Collins on 03 November 2014

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I came across a 4-part dissertation on factors used by courts as a guide to evaluate evidence
of the prosecutrix in rape cases. It is authored by the Honorable Justice U.L.Bhat, former
Chief Justice of Gauhati and Madhya Pradesh High Courts. It is important we first read and
understand the guiding principles in the numerous appellate court rulings cited by Justice
Bhat; thereafter, recognize predisposition in judicial deliberations that are tangential to
expectation of fair play and the fundamental maxim of justice: the Preponderance of
Innocence.
In a nutshell, the general stance of our honorable courts toward trying cases of alleged
rape is, Give the Accused a fair hearing, then hang him. The notional exercise of seeking
collaboration of witness testimony goes against the very grain of equity, impartiality, and
justice one expects from a purportedly impartial Trier of Fact because the collaboration
sought is primarily to reinforce the putative victims testimony - nothing more. Any
indication of a biased investigation, or circumvention of statutorily mandated procedures, or
lack of forensic findings that could conclusively establish sexual intercourse (or a sexual
nexus between the Accused and the victim), or an unreasonably delayed FIR, or
infirmities in prosecution witnesses testimonies, or absence of any real/tangible or
demonstrative evidence, or other prosecutorial shortcomings would generally not render
suspect the allegation nor vitiate the trial if these lacunae are reasonably explained
Wherewith, it is within judicial discretion to excuse prosecutorial excesses as mere, petty,
minor, unintentional, inconsequential, or based upon good-faith reliance upon false
assumption or belief and did not cause Defendant undue prejudice to vitiate the trial
(Hon. Supreme Court in Rafiq Ahmed @ Rafi vs State Of U.P. 4 August, 2011)! Because, even
despite an absence of a gossamer thread of evidence from trulyindependent/impartial
sources that could corroborate the victims story, the Honorable Courts fall back on the
weight of unverified testimonies of witnesses in absentia, those who have an interest
(personal/private/vested?) in the outcome of the trial and accept this as corroborative
evidence.
The qualifying criteria for collaborative evidence to merit judicial recognition (and

acceptance), would include coached or hearsay testimony from (say) the victims close
relations (e.g., mother), acquaintances, friends, friends of friends, or teacher to whom the
rape victim narrated the incident. Statements to this effect taken down in writing (by the
police) after the fact but explained in vernacular is accepted as evidence at face value and
stands on equal footing with tangible evidence. Nevertheless, these one sided declarations
satiate the optional provision for collaboration, thereby, judicially anointing mere
accusations with authenticity and credence! This biased standard for accepting and weighing
evidence (which, really, is no Standard at all), has been hardened into a rule of law!
Ponying up on a hundred year old case in England [King V/s. Baskar Ville (1916) 2 KB 658],
which dealt with acts of gross indecency (can someone define indecency in specific legal
terms, please?) with two boys, a like-spirited, albeit slanted, precedent was reinforced
in Rameshwar V/s. State of Rajasthan: There is no doubt that the uncorroborated evidence
of an accomplice is admissible in law . all that is necessary is that there should be
independent evidence which will make it reasonably safe to believe the witnesss story that
the accused was the one, or among those who committed the offense .
The arbitrary standard for independent corroboration is some additional evidence
rendering it probable that the story of the accomplice (or complainant) is true and that it
is reasonably safe to act upon it must in some way reasonably connect or tend to
connect the accused with it by confirming in some material particular the testimony of the
accomplice or complainant that the accused committed the crime ... On the other
hand, seeing that corroboration is not essential to a conviction, conduct of this kind may be
more than enough, in itself, to justify acceptance of the complainants story ... there
can be no doubt that such a statement is legally admissible in India as
corroboration whether or not it was from vested interests... (emphasis mine).
The scary fact of life is that case law runs rampant with convictions based solely upon the
complainants testimony because, somewhere along the way to the present evolutionary level
of judicial thought and reasoning, our criminal justice system has relented to political
pressure and trial by media effectively shelving common law expectations of impartiality and
justice by creatively interpreting gender neutral laws to promote and legitimize biased
practices which becomes law unto itself. This sets the tone for pre-arrest/pre-trial
documentation that often reflects subjective bias in favor of the prosecutrix during trial.
In rape cases, the police are expected to prima facie believe the complainant regardless of
the truthfulness or fallacy of her story; thereafter, generate supporting paperwork to justify
remand and prosecution.
It is accepted practice in cases alleging rape to circumvent requirements for due process and
impartiality reflected in other landmark rulings. For instance, of the several cases cited by
Hon. Justice Bhat, not one incident is mentioned where courts applied some standard to
identify false accusations, or in what manner did the arresting agency record their
reasonable belief that the Accused had committed a crime, or whether mandatory
procedures were circumvented, or some indication where the benefit of doubt would be
applicable, or where the court considered compliance with other rulings which addressed the
requisite for a pre arrest investigation into the allegations perLaw Commissions and Hon.

Supreme Courts Ruling on Arrest/Detention (per Joginder Kumar vs. State of UP. & Ors.,
Directorate of Enforcement Vs. Deepak Mahajan & others, Kultej Singh Vs. Circle Inspector of
Police & others, Christian Community Welfare Council of India and others Vs. Government of
Maharashtra & others, etc.).
Sweeping statements by our Apex Court mirror their personal opinion of the purported
cultural mores of Western versus the Indian women as causal factors for false allegations of
rape: Indian women will not lie about rape but the liberal Western complainant should be
viewed with suspicion? See Criminal Appeal No.1798 of 2008 Wahid Khan vs. State of
Madhya Pradesh.
But this learned opinion is subjective, intrinsically discriminatory, antiquated by 40-plus
years of progressive women empowerment, and tangential to numerous real life events
including the Hon. Supreme Courts own conflicting opinion in Bharwada Bhoginbhai Hirjibhai
v. State of Gujarat 24 May, 1983 [Equivalent citations: 1983 AIR 753, 1983 SCR (3) 280],
where it also recognized that a woman of the age of majority is found in compromising
position, who is likely to make accusations for self preservation
It is clear that courts entertain (and encourage) the satti savitri image of the Indian woman.
But surely they cannot be blind to the fact that opportunism exists within its very corridors?
. Truth be told: A Western woman is no less in worth than her Indian counterpart; and no
more benign nor sinister in pursuing her intentions. The proposition that Indian women will
not make false accusations of rape is just as fallacious as the Indian judiciary is not open to
corruption because real life events speak differently.
I am sure that the Hon. Supreme Courts portrayed intentions are benign and impartial, but
these are generally not mirrored by its rulings, reasoning, and presidents in sexual offence
cases. On the one hand it advises, that this rule of prudence must be present to the mind
and be understood and APPRECIATED (not applied) by the court. On the other hand, it
directs, There is no rule of practice that there must, in every case, be corroboration before
conviction can be allowed to stand; thereby, diminishing and negating the prior requisite.
Conspicuous in the above two statements is a divergence of the Letter of Law (i.e., the Rule
of Prudence) from the Spirit of Law as reflected in judicial practice (i.e., the Rule of Practice).
What is even more alarming is the justice System summarily classifying a female complainant
alleging rape as victim, accepting her testimony as gospel, and according all rights due a
victim when the task on hand is TO DETERMINE WHICH PARTY IS THE VICTIM! In a similar
vein, labeling the Defendant as the Accused, instinctively promotes a contemptuous
connotation. Equating a complainant of an alleged sexual crime as victim is unduly
prejudicial to Defendants, as the word, in any reasoning mind, conveys the impression that
the crime has already been established, the culpable party has already been identified; so
has the suffering victim. Therefore, one reasonably wonders if there is any practical merit in
conducting a trial except for a perfunctory showing of the rule of law in action when the
outcome has already been decided through subjective leanings and prejudicial precedents.
There is an implicit bias in the interpretation and execution of certain provisions in rape laws;

essentially, the myriad of premature protections and entitlements to female complainants

alleging rape; and prima facie accepting their unverified defamatory testimony as sacrosanct,
credible, and beyond reproach whereby any thoughts to test its veracity is not really
obligatory upon the investigating agency or the courts. This precedence is violative of the
Constitution of India Article 21, which guarantees the right to life and liberty to both men and
women alike. This commonly accepted practice is morally, ethically, and legally wrong: it is
bad law. Or, perhaps, it is good law often being applied in a bad way, and throwing open the
floodgates to opportunism and misandry as did IPC 498A, Dom. Violence, and other gender
biased laws before the courts adopted an impartial approach. But what about those lives
already shattered in the wake of a biased judiciary?
Are defendants in rape trials truly considered innocent until proven guilty beyond a
reasonable doubt in the eyes of the Court? Then why is the burden of proof placed upon him
in view of such arbitrary, slanted standards to test his innocence or guilt?
Whatever happened to the fundamental Maxim of Justice, the Preponderance of Innocence?
Whatever happened to the Equal Protection Right to Life & Liberty provision in the
Constitution which Judges have sworn to uphold? How many innocent victims slain by
arbitrary, biased application of law will it take for the Halls of Justice to wake up to the stench
of travesty?
Respectfully submitted,
Carlisle Collins