“Rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent”
ABSTRACT
This article critically evaluates how evidentiary gaps have become a threat to our legal system. In horrific crimes like rape, evidence and testimony is the only thing the courts can rely upon. And when this evidence is lacking, it makes the public lose faith in the judiciary as it fails to provide them justice. This article helps us understand what fractures our system has and how important it is to bring reforms. Through precedents and real-life cases, we look at how courts fail to evaluate the evidence at hand without striking a balance between victim’s and accused rights and deprive them of a fair trial. It also highlights the consequences of false acquittal and false conviction which changes the lives of the parties completely. It concludes with suggestions to fill these gaps and stresses on the need for courts to become consistent.
KEYWORDS
Rape Trials, Evidentiary Gaps, Victim’s Testimony, chain of custody, Justice
INTRODUCTION
It’s our duty as people in the field of law to improve our legal system in a way that it serves justice right. This essay highlights one major issue our system faces i.e. evidentiary gaps. We talk about how these gaps have harmed victims and accused of rape. These evidentiary gaps not only falsely acquits the accused, but it can falsely convict an accused as well. Evidence can be destroyed; it can be tampered with and due to poor collection and handling of the evidence it can be declared inadmissible in court. Such failure deprives the victim and accused of justice, which leads to more psychological turmoil for them.
Rape is considered to be a heinous crime. It is not a crime against a person but the whole society. It is defined by law as, “A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
These acts might have been committed without her consent, against her will, she believed the man was her husband and the man was aware of it, her consent was coerced by putting her loved ones in danger, if she was a child below the age of 18 years (then consent doesn’t matter), she was intoxicated or if she is unable to communicate.”
Over the years rape has been a sensitive issue. It still carries a taboo with it and victims face the wrath of the society. The former secretary general of The United Nation Mr. Ban-ki-Moon said, “It is the perpetrators who should feel disgraced, not their victims”. But we as a society has failed to understand how horrific the incident must’ve been for them. There are many incidents which depict the hardships the victims have to face in the society. A 15-year-old victim was pressured by her father to marry her rapist, a 6-year-old girl was raped, and the family faced such backlash that their other daughter had to drop out of school.
Due to this social stigma and mistrust in the justice system we have a very low rate of reporting this crime. In 2022, there were 31,000 cases reported in a year but there was only 27-28% of conviction rate. This mistrust in our justice system was not developed overnight, it has actually failed the victims of such a barbaric crime.
RESEARCH METHODOLGY
This article is of evaluative nature, which helps us understand how the evidentiary gaps are withholding justice in our society when it comes to rape cases. By data mining and using information which is cited from secondary sources like, research articles, bare acts, news, judgements, etc.
REVIEW OF LITERATURE
The evidence required and its admissibility in rape cases has been discussed to a great extent. Many researchers have helped us clarify as to what all evidence is required, which evidence has greater value in court and what the court should look for when certain evidence is missing.
It is highlighted that the crime has to be proven by the prosecution beyond reasonable doubt only then the accused will be convicted by the court. Since a crime like rape occurs in secrecy there are no witnesses who can give their statements, the evidence that the court can really rely on is the victim’s testimony with corroborative witnesses and the medical examination which has to be done after the crime was committed. There are certain things which are to be kept in mind while examining this evidence. A victim’s testimony has to be credible only then the court can convict the accused. Medical examination has to be done with the proper consent, and no medical practitioner or hospital can deny medical care to the victim irrespective of the fact they have reported the crime or not.
Evidence plays a crucial role in any trial or court of law. And when there are evidentiary gaps in a justice system then we can say that it’s a threat to justice itself. Such gaps not only harms the system but its people as well, they lose trust and are afraid to seek help whenever they need it. It’s impossible to imagine how a victim feels to see their rapist walk free just because the evidence was mishandled or it wasn’t enough to convict the accused. This essay talks about how these gaps hinder with the concept of ‘fair trials’ and how frequently accused is falsely acquitted or convicted because of them.
TYPES OF EVIDENCE
In rape cases, we look for various kinds of evidence. Medical evidence, victim’s testimony, electronic evidence, eyewitnesses, etc. Before we discuss about lack of evidence, we should know what these kinds of evidence includes.
Medical evidence is collected through an exam which is done by a Registered medical Practitioner in the hospital. For a girl below 18 years of age only a female RMP can conduct the exam and any other RMP for girl above 18 years of age. But for such examination consent is required by the victim or someone else who is competent to give consent on the victim’s behalf. For a girl below 18 years of age parental consent is required. This exam has to be conducted within 24 hours of the commission of the offence. The evidence collected (in order) is as followed, clothes, drop sheet, sanitary pad or tampon, fingernail scrapings, head hair for comparison purposes, oral swab, saliva on skin, semen on skin, pubic hair combing, vaginal swab, endocervical swab, anal and rectal swab, victim or assailant’s DNA, blood for DNA and drugs and lastly urine for drugs.
Medical evidence usually acts as corroborative evidence for victim’s testimony. A testimony is an oral or written statement which is given by the victim or witness under oath, affidavit or deposition while a trial or other legal procedures are going on. The victim or witness are required to provide their statements before the Hon’ble court in an honest manner. Because of the cooperation of these people who are aware of the commission of the crime, the court has a better chance of getting a clearer picture of the act. In the case of State of Punjab vs Gurmit Singh and Others, it was highlighted that the victim’s testimony is substantial evidence in rape trials. If the court believes that the testimony is credible enough and inspires confidence, then the testimony alone is enough to convict the accused.
Apart from this evidence, police can find electronic evidence as well. Like CCTV footage, call recordings, messages or any kind of video recorded by the assailant. Such evidence helps the court in figuring out how the incident happened. Location, CCTV footage and time stamps can help us figure out where and when the incident took place. Any kinds of calls or messages can depict the mala fide intentions of the accused. Such evidence can also help the court determine whether the victim’s testimony is credible or not.
WHY IS EVIDENCE OFTEN LACKING?
In our system we can highlight various problems which leads to insufficient evidence. Since rape is considered to be a taboo in our society, many victims do not even report these crimes. They fear to be judged, blamed and slut shamed. Its not only the society but the police officers as well. When a victim approaches the police for help, they’re treated horribly. There are many cases in our country where the officials refuse to file a FIR because the assailant is a VIP. Even if they do register it, the women face victim blaming. A 32-year-old widow was raped in her own house at gunpoint while her children were sleeping. She went to the police, but they didn’t register her complaint and told her to wait. On Thursday she consumed poison and died. The complaint was later registered, but at what cost.
The cases which are registered face other problems. Since it takes a lot of courage on the part of the victim to approach the police, there might be a delay. And due to that delay medical examination cannot be of much help. Because the physical evidence will be lost, the victim may have taken a bath or the injuries must’ve been healed, if we were to rely on this evidence then the rape did not even occur. Thus, if the court has to completely depend upon medical evidence to convict an accused, it’ll become very unfair for the victim as the evidence collected won’t support their testimony.
But the court clarified in the case of State of Tamil Nadu vs Raju @ Nehru, that rape is not a medical condition which can be diagnosed by medical practitioners but a crime. Whether the rape has occurred or not is for the courts to decide. The most a medical practitioner can do is find evidence of any sexual activity or any other evidence which may help in the case. Thus, if there is no medical evidence then, the rape is not disproven.
It is the duty of the investigators to handle the evidence carefully and follow all the guidelines provided while collecting it. But we face a lot of problem related to evidence tampering. In a lot of cases, the evidence is destroyed which makes it impossible for the victims to prove the court beyond reasonable doubt. In the most recent case of RG Kar Medical College, Kolkata, the principal had the rest room and toilet diagonally situated to the seminar room where the body was found, destroyed. This made it difficult to find any direct evidence on the crime scene.
There is an important legal principle known as Chain of Custody, it talks about proper documentation and control of the evidence collected relevant to a particular case. it includes noting down the names of the people who collected the evidence, to whom it was transferred, the date it was collected, date it was transferred and description of the evidence. In the case of Prakash Nishad vs State of Maharashtra, the supreme court highlighted the importance of chain of custody. The accused here was convicted of raping a 6-year-old, the body was found in a drain near her home. The Hon’ble court acquitted the accused because there were serious inconsistencies in the procedure of handling the evidence. Thus, poor handling of evidence led to an acquittal of a convict.
CONSEQUENCES OF EVIDENTIARY GAPS
Evidence indicates whether a particular act has been committed or not. Without evidence it won’t be fair to convict any accused. The standard of proof that we follow in our country in criminal cases like rape, is “Beyond reasonable Doubt”. It means that the prosecution has to prove the court that the accused is the one who committed the crime to the point that it doesn’t create any doubts.
Every person who turns to court for help expects a fair judgement. This can only be done if the court listens to both the sides, only then fairness can be ensured. The Hon’ble Supreme Court held in the case of Zahira Habibulla H. Sheikh vs State of Gujrat, that fair trial is part of Article 21 of the Indian Constitution, and must be ensured to all citizens. Thus, when there is lack of evidence due to the reasons mentioned above, the trial becomes unfair for the victim. The victims face the trauma all over again during their testimony, which affects them a lot mentally. Their character is questioned and during cross examination they bear with zealous advocacy. Even after Criminal law Amendment of 2013, which clarified that no such questions shall be asked in cross examination which lowers the dignity of the victim or corroborates with their previous sexual experiences. The re-traumatisation of the victim still persists. These trials take a very long time, and till the judgements come victims face a lot at the hands of society. It not only causes them second doubts but can also cause depression, anxiety and suicidal thoughts. Even after delayed justice, if their rapist is set free because “evidence wasn’t enough” it makes them loose trust in the judiciary and law. And a judiciary which cannot protect its victims is of no use.
The trial becomes unfair for the accused when the court gives too much importance to victim’s testimony. Many laws have been made to aid the victims in such cases. But sometimes these laws can be misused, then the responsibility falls on the court to ensure that there the accused isn’t falsely convicted. The biggest drawback is that an innocent person will be put behind bars. Thus, to ensure fair trial for the accused, the Hon’ble Supreme Court clarified in the case of Pankaj Singh vs State of Haryana, the accused doesn’t have to give any proof of innocence unless it is provided by law. In this case the prosecution wasn’t able to prove that rape had occurred which is why they couldn’t apply section 120 of BSA.
Even if they are acquitted in a few years, being convicted in a rape case severely harms one’s dignity and mental health. They can loose their job and no one would be too willing to hire them back again. Recently, the Hon’ble Supreme Court overturned a conviction in the case of Ved Pal vs State of Haryana, the accused was convicted in 2004 by trial court and this judgement was affirmed by Punjab & Haryana High Court in 2019. But the Supreme Court highlighted that there were inconsistencies in the testimony of the victim and there was no medical evidence which could corroborate the said testimony. Thus, the accused were acquitted. We can see from this case that the accused had to wait for 20 years to be freed.
REFORMS AND RECOMMENDATIONS
There are a few things which we can change in our system to make the rape trials fair and efficient. We as a society need to change our behaviour towards the victims. We should empathise with them, create a safe environment for them and provide them the strength to report the crime. Some attention should also be given to sensitisation by the police towards the victims. The courts need to ensure fair trial by maintaining a balance between victim’s rights and assailant’s rights. They shouldn’t be biased towards one and should let go of outdated perceptions like, what was the victim wearing. The courts should have a more progressive approach while presiding over the cases. False accusations should be taken seriously but they shouldn’t become the reason of discrediting other victims. From many cases we have inferred that there is not a standard procedure for collecting the evidence. Some standard ways should be set so the evidence isn’t mishandled. Chain of custody should be strictly maintained so the evidence doesn’t loose its value. Some kind of fine can be introduced for the officials who disrupt the chain of custody.
And most importantly, the courts should maintain consistency. Court already knows how to strike a balance between victim’s testimony and other evidence. But they have been inconsistent while giving judgements. Convicting one assailant solely based on testimony and letting the other one go, makes it very unfair for the accused. A falsely convicted accused has to wait years before he is acquitted from the jail, destroying his life. Whereas, letting go of accused even after testimony and corroborative evidence harms the victim’s rights. It makes them feel unseen in the eyes of law. Thus, if courts were more consistent with properly collected evidence we can ensure speedy trials.
CONCLUSION
In the end, it’s important to understand how the fairness of rape trials depend upon the integrity of the evidence. We understood what kind of evidence is collected and how it moves through a chain of custody before it reaches the court. It was further highlighted how through underreporting, delay in reporting, tampering and poor handling evidence can loose its value and become inadmissible in courts. This leads to victim and accused loosing their right of a fair trial. They suffer at the hands of a failed justice system. Standardising collection and handling of evidence and consistency in judgements can actually lead to a greater good and make the desirable change.
Ravleen Kaur
3rd year Law student [B.com LLB (Hons.)]
University Institute of Legal Studies
Panjab University
Chandigarh