Law of Evidence

Project on

Section 114 (A): A Critical Analysis

PROJECT SUBMITTED TO:

DR. VIKESH RAM TRIPATHI

(FACULTY OF LAW OF EVIDENCE)

PROJECT SUBMITTED BY:

SAURABH DAS MANIKPURI

SEMESTER VII, SECTION A

ROLL NO. 143

SUBMITTED ON: 21.08.2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH
 Acknowledgements

I, Saurabh Das Manikpuri, would like to humbly present this project to Dr. Vikesh Ram
Tripathi. I would first of all like to express my most sincere gratitude to him for his support
and encouragement. I am thankful for being given the honour of doing this research paper.

I am thankful to the library staff and committee members for all the conveniences which
played a major role in the completion of this paper.

Last but by far the most important, I am thankful to my friendsand family for all their
boundless support, encouragement and valuable advice whenever needed. I present this
project with a humble heart.

- Saurabh Das Manikpuri

Semester VII, (A)

Roll No. - 143

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 TABLE OF CONTENTS

 Acknowledgments……………………………………………………… i
 Introduction……………………………………………………………. 4
 Objective……………………………………………………………… 6
 Scope of study…………………………………………………………6
 Mode of Citation……………………………………………………….6
 Research Methodology………………………………………………... 6
 Interpretation………………….………………………………………. 07
 Section 114- A…………………………………………………………. 07
 Meaning of Presumption…………………………………..………… .07
 Meaning of rape……………………………………………………… .07
 Presumption as to absence of consent of victim in gang rape………….09
 Presumption ina rape cases………………………….………………... 10
 Presumption under 114- A , when can be drawn………………………10
 2013 amendments………………………………………………………12
 Conclusion…………………………………………………………… 13
 References……………………………………………….…………… 14

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 Introduction
Laws related to rape are of many in nature. It has been enacted whenever it is necessary for
preventing the modesty of women and Children. Out of these Laws, Indian Penal Code,
1860(IPC) consist of penal provisions for offence of Rape committed by an individual, Code of
criminal Procedure, 1973(Cr.P.C) and Indian Evidence Act, 1872 identifies the convicts by
proving their guilt of committing such offence to punish under punitive Acts. Amendments of
these Laws are framed from time to time in-order to make strict provisions, so that it demolishes
the intention of criminal in committing such crimes. . Now a day, the reported number of Rape
cases on higher officials and celebrities are growing and it is clearly identified and punished with
the help of both technologies and Medias.

The newly-added S. 114-A deals with cases of prosecution for rape under clauses (a), (b), (c),
(d), (e) or (g) of S. 376(2) of the Indian Penal Code, where sexual Intercourse by the accused is
proved, and the question before the Court is whether such intercourse was with or without the
woman’s consent. In such cases, if the woman, in her evidence, states before the Court that she
did not consent, the Court must presume that she did not so consent.

This new provision (inserted in 1983) has brought about a rather radical change in the Indian
Law relating to rape cases.

Formerly, the rule was that corroboration of the victim’s version was not essential for a
conviction, but as a matter of prudence, it would have to be established if the mind of the judge,
unless circumstances were strong enough to make it safe to convict the accused without such
corroboration. As observed by the Supreme Court, although the victim of a rape cannot be
treated as an accomplice, her evidence is to be treated almost like accomplice evidence, requiring
corroboration.1

Rape – Definition of Rape includes an attempt to Rape – Sec.114 – A of Evidence Act –

Presumption as to absence of consent in certain prosecutions of rape – even if there had been a

1
Sk. Zakir v. State of Bihar, 1983 Cri. L.J. 1285)

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doubt about the medical evidence regarding non rupture of hymen the same would be of no
consequence as it is well settled by now that the offence of rape would be held to have been
proved even if there is an attempt of rape on the woman and not the actual commission of rape. -
Thus, if the version of the victim girl is fit to be believed due to the attending circumstances that
she was subjected to sexual assault of rape and the trauma of this offence on her mind was so
acute which led her to the extent of committing suicide which she miraculously escaped, it would
be a travesty of justice if we were to disbelieve her version which would render the amendment
and incorporation of Section 114A into the Indian Evidence Act as a futile exercise on the part of
the Legislature which in its wisdom has incorporated the amendment in the Indian Evidence Act
clearly implying and expecting the Court to give utmost weightage to the version of the victim of
the offence of rape which definition includes also the attempt to rape.

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 Objective

 To understand the section 114 (A) of Evidence Act .

 To study the amendment in the section.

Scope of Study
This scope of the project is the interpretation of section 114-A of Evidence Act and study of
amendment in this section which comes in 2013.

Mode of Citation
This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and bibliography.

Research Methodology
The mode of writing this research paper is doctrinal in nature. Secondary and Electronic
resources have been largely used to gather information and data about the topic. Books and other
reference as guided by Faculty of Law of Evidence have been primarily helpful in giving this
project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes
have been provided wherever needed, to acknowledge the source.

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 Interpretation

Section 114(A) : Presumption as to absence of consent in certain prosecution

for rape-

In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or
clause (g) 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 she states in her evidence before the Court that she did not
consent, the Court shall presume that she did not consent.

Meaning of presumption-

a rule of law which permits a court to assume a fact is true until such time as there is a prepondera
nce (greater weight) ofevidence which disproves or outweighs (rebuts) the presumption. Each pre
sumption is based upon a particular set ofapparent facts paired with established laws, logic, reaso
ning or individual rights. A presumption is rebuttable in that it can berefuted by factual evidence.
One can present facts to persuade the judge that the presumption is not true.

Meaning of Rape-

Offence of rape is defined in section 375 , I.P.C. and punichment for it is provided in section
376, Indian Penal Code, Section 375 reads as follows:-

A man is said to commit “rape” who except in the cases hereinafter excepted, has sexual
intercourse with a woman under circumstances fallinf under any of the six following
description:-

1. Against her will

2. Without her consent.

3. With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

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 4. With her consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes herself to be
lawfully married.

5. With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.

6. With or without her consent, when she is under sixteen years of age.

Exceptions- Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.

Section 375 defines the offence of rape. Section 376 in the first part prescribes punishment
for rape in general. The second part of the section provides punishment for special classes of
rape.

a. The rape by police officer under certain circumstances.

b. Public servant under certain circumstances.

c. By officer of jail.

d. Member of the management or staff of hospital.

e. Rape upon a pregnant woman.

f. Rape upon woman under twelve years of age.

g. Gang rape.

Section 376(2)(a,b,c & d) speaks about Custodial Rape. Rape committed by Police Officer,
Public Servant, Management or the staffs of Jails or other custodial places and Management or
the staffs of hospitals on women in their or their subordinate’s custody will come under this
Sections. In Madura rape case, she was just sixteen, raped by two policemen but by

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circumstantial evidence Court acquitted them. Punishment is of rigorous imprisonment not less
than ten years or even leads to Life sentence with or without fine.

Section 376(2)(e) speaks about rape of women with the knowledge that she is pregnant. Rape
committed by any sane individual knowing she is pregnant comes under the purview of this
Section. Punishment for committing such crime is a rigorous imprisonment for a term not less
than ten years and may lead to Life sentence with or without fine at the discretion of Judge. Here
the burden of proof lies with the accused.

Amendment of Section 376(2)(f) speaks about Rape of girl under age Sixteen. Rape committed
by an individual on a girl being an age less than sixteen comes under this Section. Punishment
given under this section is rigorous imprisonment not less than ten years which may lead to Life
sentence with or without fine. But the Court depending on situation may reduce the minimum
punishment to seven to ten years of punishment. There won’t be any extra punishment for child
rape causing increased trauma for the girl. Here the burden of proof lies with the accused.

Amendment of section 376(2)(g) speaks about Gang rape. Rape committed by one or more
person in a group of individual having the same intention to rape amounts to Gang Rape.
Punishment is of rigorous imprisonment not less than ten years and that may extend to Life
imprisonment with or without fine.

Presumption as to absence of consent of victim in gang rape-

There was oral testimony of victim that three accused persons had forcibly took her to the forest
and had sexual intercourse with her for whole day and two nights. Injuries noted by doctor on
victim had tallied with time of occurrence. The doctor had opined that there were signs of
forcible sexual assault which were present. As the evidence of victim had been fully
corroborated by medical evidence , the court shall presume that victim had not given consent and
the accused will be guilty under section 376(2)(g) of the act.2

2
Dev kishan vs. state of rajasthan cri Lj 1118 (Raj) (Jaipur Bench)

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Presumption of rape-

What is more important was the fact that presumption under section 114- A to the effect that if a
woman states in her evidence before the court that she did not consent, the court shall presume
that she did not consent, was attracted to the cases of rape falling under sub section (2),except
when the case was under clause (f) thereof. No such presumption under sub- secion (1) of section
376 of, I.P.C.3

Presumption under section 114-A – when can be drawn?

Presumption under section 114- A can be drawn when the accusedsays that he committed rape
with the consent of the prosecutrix. If the case of the accused is not that he committed rape with
the consent of the prosecutrix no presumption under section 114-A can be drawn.4

In rape cases it is to be borne in mind that evidence of a rape victim should not be rejected unless
there are strng circumstances militating against the veracity of the victim.5

In Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of
corroboration as a rule is adding insult to injury. On principle the evidence of a victim of sexual
assault stands on par with evidence of an injured witness. Just as a witness who has sustained
injury is not likely to exculpatethe real offender, the evidence of a victim of sex- offence is
entitled to great weight, absence of corroboration notwithstanding.6

Victim taken to the house inmates of which were unknown to her, there the victim and the
accused allowed to stay in night- accused sharing bed of victim – held accused must by deemed
to have had sexual intercourse against her violation.7

Consequent to sexual intercourse the victim girl bled profusely from her vagina- the rape was
confirmed by medical evidence- the plea of the accused was that it was consensual intercourse
the gir denying- the accused was convicted on the charge of rape. 8

3
Ramcharan v. state of M.P., 1993 Cri Lj 1825 at 1828 (MP)
4
Ravindranath v. state of U.P.,1991 ACC 31
5
Rafiq v. state of U.P., AIR 1981 SC 559
6
Bhoginibai v. State of Gujarat, AIR 1983 SC 753
7
Taitab Seikh v. State of W.B., 1988, 1 Cal HN 243
8
Chotu mohammad v. State of Rajasthan 1993, 1 Cries 251 (Raj)

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The accusedcalled inside his house two girls aged 6 and 8 respectively. He took elder girl on his
right thigh and younger on the left. He started kissing and then put his penis in the mouth of the
elder and discharged semen inside her mouth and the girl vomited.- charge under 377 I.P.C. was
not allowed to be quased.9

The following three conditions must be satisfied before the presumption contained in S. 114-A
can be raised:

(a) It should be proved that there was sexual intercourse.

(b) The question before the court should be whether such intercourse was with or without the
consent of the woman.

(c) The woman must have stated, in her evidence before the court that she had not consented to
the intercourse.

This presumption would apply not only to rape cases, but also to cases of attempted rape, as for
instance, when the victim was disrobed and attempts were made to rape her, which, however,
could not materialise because of intervening circumstances. (Fagnu Bhai v. State of Orissa, 1992
Cri. L.J. 1808)

9
Kartar singh v. State (Delhi Administration) 1993, Crimes 569 (del)

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 2013 Amendment
This section was amended vide the criminal law act (amended) 2013 on the basis of
recommendation given by the Justice J.S. Verma Committee, constituted in the aftermath of
December 2012 Nirbhaya rape incident, whereby changes are made in section 376 (2) of Indian
penal code. By making necessary amendment in this section, the newly classified offence upto
clause (n) of section 376(2) has also been brought within bracket of statutory presumption of
non- consensual intercourse prescribed in this section.

The convicts who commit the offence of rape, and fall within any of the clauses (a) to (n) of sub
section 2 , because of their special position by virtue of which they can exert influence upon the
victim, have been classified differently. The statutory presumption of non – consensual
intercourse is based on the proposition that because of their special position, the convivt was in a
position to exert influence upon the victim.

Further an explanation has also been inserted in this section so as to clarify that the meaning of
“Sexual Intercourse” shall be the same that has been attributed to any of the acts mention in the
clause (a) to (d) of section 375 og Indian penal code.

Cases- There was oral testimony of victim that three accused persons had forcibly took her to the
forest and had sexual intercourse with her for whole day and two nights. Injuries noted by doctor
on victim had tallied with time of occurrence. The doctor had opined that there were signs of
forcible sexual assault which were present. As the evidence of victim had been fully
corroborated by medical evidence , the court shall presume that victim had not given consent and
the accused will be guilty under section 376(2)(g) of the act.10

10
Dev kishan vs. state of rajasthan cri Lj 1118 (Raj) (Jaipur Bench)

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 Conclusion
Section 114-A no doubt addresses on the consent part of the woman only when the offence of
rape is proved but it also impliedly would be applicable in a matter of this nature where the
victim girl had gone to the extent of committing suicide due to the trauma of rape and yet
is sought to be disbelieved at the instance of the defence that she weaved out a concocted
story even though she suffered the risk of death after consuming poison.

If this were to be accepted, we fail to understand and lament as to what is the need of
incorporating an amendment into the Indian Evidence Act by incorporating Section 114A
which clearly has been added to add weight and credence to the statement of the victim woman
who suffers the offence of rape and a claustrophobic interpretation of this amended provision
cannot be made to infer that the version of the victim should be believed relating merely to
consent in a case where the offence of rape is proved by other evidence on record.

If this view of the matter is taken into account relying upon the amended Section 114-A of
the Indian Evidence Act which we clearly do, then even if there had been a doubt about
the medical evidence regarding non rupture of hymen the same would be of no consequence as
it is well settled by now that the offence of rape would be held to have been proved even if
there is an attempt of rape on the woman and not the actual commission of rape.

Thus, if the version of the victim girl is fit to be believed due to the attending circumstances
that she was subjected to sexual assault of rape and the trauma of this offence on her mind
was so acute which led her to the extent of committing suicide which she miraculously
escaped, it would be a travesty of justice if we were to disbelieve her version which would
render the amendment and incorporation of Section 114A into the Indian Evidence Act as a
futile exercise on the part of the Legislature which in its wisdom has incorporated
the amendment in the Indian Evidence Act clearly implying and expecting the Court to give
utmost weightage to the version of the victim of the offence of rape which definition includes
also the attempt to rape.

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 Bibliography

BOOKS

1. The Law of Evidence , Batuk lal’s , 6th edition , Orient Publishing Company
2. The Law of Evidence, Ratanlal & Dhirajlal, 25th editin, Lesix Nexis

WEBSITES:

1. https://advocatemmmohan.wordpress.com/2014/04/26/rape-definition-of-rape-includes-
an-attempt-to-rape-sec-114-a-of-evidence-act-presumption-as-to-absence-of-consent-in-
certain-prosecutions-of-rape-even-if-there-had-been-a-doubt-about-the/
2. https://blog.ipleaders.in/judiciary-interprets-consent-rape-cases/

Acts
1. Indian Evidence Act, 1872
2. Indian Penal Code , 1860

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