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Article
Editors Introduction
The Burden of
Intelligibility: Disabled
Womens Testimony
in Rape Trials
1
Indian Journal of Gender Studies
20(1) 129
2013 CWDS
SAGE Publications
Los Angeles, London,
New Delhi, Singapore,
Washington DC
DOI: 10.1177/0971521512465934
http://ijg.sagepub.com
Saptarshi Mandal
Abstract
What is the evidentiary value accorded to a womans testimony in
a rape trial, when she is disabled? How is her testimonyconveyed
non-verbally and made accessible to the judges through an interpreterprocessed by a legal culture that values descriptive precision
and intelligibility? How does intelligibility itself act as a sieve through
which the testimony of the disabled prosecutrix is passed to determine if the allegation of rape is proved beyond reasonable doubt? By
examining judicial decisions of Indian courts in cases of rape of disabled
women, this article attempts to explore these questions and shows how
the testimony of the disabled prosecutrix is devalued and disregarded
through a combination of evidentiary, doctrinal and ideological practices
inscribed in law.
Keywords
Disabled women, testimony, rape trial, intelligibility, legal process
Introduction
The testimony of the prosecutrix and its place in the legal process in
rape trials has been the focal point of scholarly feminist and activist
interventions in rape law. These interventions mostly assume one or
more of the following three forms. The first and the most sophisticated
Saptarshi Mandal is a legal researcher based in New Delhi, India. E-mail:
saptman@gmail.com
Saptarshi Mandal
one is focused on the disconnect between womens experience of forcible sexual acts and the legal category of rape that is deployed to recognise that experience (MacKinnon, 1983; Menon, 2004; Smart, 1989).
The argument is that the dualisms in which the law of rape frames its
questionsyes/no, consent/non-consent, penetration/non-penetration,
resistance/submissionhas the effect of disqualifying (Smart, 1989,
p. 35) the manner in which women experience sexual assault, by deeming it irrelevant for the purpose of law. The second set of interventions
are those that highlight the manner in which judicial discourse and
medico-legal practices seek to doubt, disbelieve and discount the version
presented by the prosecutrix, prior to and during the trial (Agnes, 1992;
Baxi, 2005; Das, 1996; Kannabiran, 2002). The third line of argument in
this corpusthough not specific to rape trialspoints to the highly
confrontational nature of the adversarial legal process as unhelpful in
recognising the rough edges in the testimonies of women experiencing
sexual violence (Coombs, 1993; Mahoney, 1991; Scheppele, 1992).
While the suggested points of intervention vary depending on the
authors focal concern, the overarching goal of any feminist law reform
project with respect to rape is to accord centrality to the prosecutrixs
own version of the experience of sexual assault, in the legal process.
This article looks at the manner in which evidentiary value is accorded
to disabled womens testimony in rape trials.1 Through examining
appellate court judgements in cases involving rape of disabled women, I
demonstrate how the testimony of the disabled prosecutrix is devalued
through a combination of evidentiary, doctrinal and ideological practices
inscribed in law.2 I try to illustrate how in addition to the phallocentric
framing of the offence of rape and the patriarchal cultures of the
courtroom, there are levels of exclusion at work that hinder easy translatability of the experience of sexual assault into the requisites for legal
redress. In doing this, I draw attention to the marginalisation of
non-verbal modes of articulation in a legal culture that values verbal
precision and intelligibility. Although the axes of disability and gender
are analytically separable, I insist that the devaluation of the non-verbal
testimony/testifier in rape trials, is not independent of the overall
gendered structure of rape law, which assumes that the testimony of the
prosecutrix is irrelevant and that the facts could be inferred from other
sources, such as her behaviour or medical examination.
The first section of the article discusses how the rules governing testimonial evidence are structured and how cultural characterisation of the
testifier plays a role in the evidentiary value accorded to his/her testimony. The second section presents the core of this article, that is, the
manner in which the testimony of the prosecutrix is disregarded as irrelevant or rejected as incomplete evidence by the legal process; both of
which subsequently lead to the acquittal of the accused. The third section
of the article looks at those cases which result in conviction of the
accused, even in the absence of testimonial evidence of the prosecutrix.
In reviewing these cases, attention is drawn to the symbolic implications
or the costs accompanying these successful cases that foreground the
victim status of the prosecutrix. At different moments over the last 20
years, the womens movement in India has suggested that rape of disabled women be classified as aggravated sexual assault and the burden
of proof be reversed in such cases. In the concluding section, this law
reform strategy is discussed, in the light of the issues highlighted in this
article.
Saptarshi Mandal
On the face of it, the text of the law does not make any able-ist presumption in addressing the question of who can give evidence in a court
and in what manner. In fact, there is a recognition that some persons may
not be able to testify verbally. The affirmation of difference in this provision however coexists with a call to impartiality in administering this
provision. Though this Section does not refer to interpreters or sign
language experts, all textbooks of evidence law emphasise that the help
of sign language experts must be sought in such cases.4 Additionally,
judicial decisions interpreting this provision have held that while recording testimonial evidence with the help of interpreters, the trial court
should record both the signs/gestures made by the witness and their
interpretations as conveyed by the interpreter so that the appellate courts
have the opportunity to review the same.5 This illustrates the point made
by Young, that difference always poses a threat to impartiality. Thus
any move to accommodate difference must be accompanied by adequate
safeguards. The predicament created by accommodating difference
while insisting on impartiality is further illustrated by the emphasis on
intelligibility in this Section. As Section 119 states, to be counted
as valid evidence, non-verbal testimony has to be presented in any
other manner in which he can make it intelligible. The different mode
of communication of the disabled witness is accommodated in the
legal process, but on the condition that it is intelligible to the ablebodied audience in the courtroom. Also it needs to be noted that the
responsibility is on the disabled witness to make it intelligible. I refer
to this predicament as the burden of intelligibility.
However, evidentiary value of testimony does not depend on its inclusion in the formal rules of admissibility alone. In addition to these rules
which have been discussed, there are rules engraved in judicial practices
and conventions that are deployed to determine the quality of the evidence produced through testimony. Even if the rules of admissibility
allow certain stories to be told in the court and presented as evidence in
support of ones claim, whether these stories are taken seriously or not
depends on these latter rules. These informal rules draw heavily on the
prevalent cultural characterisations of the person testifying. When judges
insist on supporting evidence to corroborate the testimony of the prosecutrix in rape trials, they often rely on the culturally widespread belief that
women are prone to lying (Agnes, 1990; Baxi, 2005). Factors such as
Saptarshi Mandal
Saptarshi Mandal
was a retarded girl. But the accused was convicted on the basis of other
sources of evidence, including medical evidence. When the case went
before the High Court on appeal, one of the primary arguments of the
defence was that the prosecutrix had not been examined. The High Court
accepted this contention, stating that a person does not become an
incompetent witness simply because of the presence of disability. It
further held that since the prosecutrix was not produced in court, the
defence had not been given the opportunity to cross-examine her. Owing
to this oversight on the part of the prosecution, the benefit of doubt had
to be given to the accused. The accused was thus acquitted of the charge
of rape, owing to the non-examination of the prosecutrix and nonobservance of the legal procedure by the trial court.
Similarly, in the case of State of Rajasthan vs Balram,11 two persons
were alleged to have raped the prosecutrix, who was deaf and mute.
Following the arrest of the accused persons, a Test Identification (TI)
Parade was held, for the prosecutrix to identify the rapists.12 The Judicial
Magistrate, in his report of the TI Parade, noted that
[t]he prosecutrix was not able to understand anything and her mental state
was not sound. Neither she was able [sic] to speak nor hear anything and she
being not of healthy mind did not identify any accused.
The inability to articulate could have been due to the trauma of the
sexual assault or the prospect of facing and identifying the alleged rapists. For the Magistrate reporting on the outcome of the TI Parade however, her inability to respond to his questions was a sign of her unsound,
unhealthy mind. Eventually, it was understood that her disabilities had
led to the judges conclusion, although no medical opinion was cited in
the judgement that the prosecutrix was of unsound mind. We further
learn from the judgement of the High Court that the
[p]rosecution endeavoured to examine her but since she was not able to
understand anything nor able to express the incident tangibly, her statement
was not recorded by the court.
The High Court judgement does not tell us if the help of sign language
interpreters was sought at the time of the TI Parade or at any other point
during the trial. Most likely, it was not. The other source of evidence was
10
Saptarshi Mandal
11
the medical examination could not be used to support the finding of rape,
as had been done by the trial court. Regarding the evidence gathered
from the account of the prosecutrix, the High Court pointed out that the
trial court had erred in not recording her evidence as per the procedure
laid down in the Indian Evidence Act. The Court held:
The questions put to deaf and dumb [sic] witnesses have to be recorded by
signs and the answers so given by signs have to be interpreted and answers
have to be recorded. But, that is not so in the case on hand. It is such evidence
given by signs [that] is admissible and is to be taken as oral evidence. In
the present case, as the procedure laid down under Section 119 of the Indian
Evidence Act is not followed, such evidence recorded by the Court, without
recording the signs is no evidence.
Hence, the only source of evidence that the court could rely upon was
the account of the father of the prosecutrix. This, the High Court held,
could only prove that the accused had made an attempt to commit
rape,14 but was not sufficient to prove that the prosecutrix had been
raped, especially when there was no supportive medical evidence. The
accused was hence convicted only of an attempt to rape.
The same pattern is found in Vinod vs State of Madhya Pradesh15 and
Mohan Singh vs State of Himachal Pradesh,16 where the accused was
acquitted due to the non-recording of testimony of the prosecutrix in the
legally valid manner and the lack of any supportive evidence from medical examination.
I argue that the procedural failure in the cases discussed above must
be read as reflecting the presumption of incapacity of the disabled to
testify. These examples must be read as representing the belief that such
testimony can never have the characteristics of real evidence which
could have a bearing on the outcome of the case. But does that imply that
simply recording the testimony in the legally valid manner reverses the
outcome? The case discussed next reveals another barrier to accommodating difference in the impartial trial process.
In The Public Prosecutor, High Court of Andhra Pradesh vs Lingisetty
Sreenu,17 the accused was charged with rape, but the trial court convicted
him only of outraging the modesty of the prosecutrix, which is a less
serious offence than rape. The State went on appeal against this, arguing
that the accused should have been convicted for rape and not merely of
12
Saptarshi Mandal
Here, the testimony of the prosecutrix was found to be unclear regarding the exact nature of the sexual act committed by the accused, the
knowledge of which was essential to determine the offence. Evidence
from the medical examination also could not be pressed into service to
bring clarity, for it recorded that there was no tear in the hymen and no
injury around the vagina of the prosecutrix. The testimony of the prosecutrix was therefore found to be incomplete evidence. The judge went on
to observe:
It is not in evidence of P.W. 4 [the prosecutrix] that there was any penetration
of the penis in the vagina and there is also no further evidence that at least
accused put his penis on her private part. With the help of the signs dumb
[sic] girl only indicated that the accused did something in her private part.
Having regard to this evidence on record, in my considered opinion it cannot
be said that the prosecution has brought home the guilt of the accused under
S. 376 of IPC.
13
The High Court however did not agree with the conclusion reached
by the trial court. While the High Court was not convinced that the
alleged act committed on the prosecutrix was rape, it did not agree with
the finding of the trial court either, which had convicted the accused of
outraging the modesty of the prosecutrix:
From this evidence it is clear that the accused not only intended to rape her,
he made all the preparations by lifting her lenga or jacket and was doing
something in her vagina. What was that something done the girl did not disclose and she started crying. Unfortunately she is a dumb [sic] girl, otherwise
she would have narrated the entire sexual act. Her weeping itself indicates
that she was not ready to disclose those acts before the Court. May be out
of shy [sic]. Thus, morally I am convinced that in fact, there was an actual
intercourse but since there is no legal evidence on record regarding the actual
sexual act, in my humble opinion, at least there is sufficient legal evidence to
hold that the accused attempted to commit rape on P.W. 4 [the prosecutrix].
The accused was therefore convicted of attempt to rape. The testimony of the disabled prosecutrix, though recorded in the legally valid
manner, was not regarded as legal evidence for its lack of descriptive
precision. This case helps us see how intelligibility acts as a sieve
through which a witness version must be passed in order to determine
whether it establishes the allegation beyond reasonable doubt as is
required by criminal law. Further, intelligibility focuses the judicial
scrutiny on the mode and form of articulation by the disabled prosecutrix. But what is the standard of intelligibility against which the testimony of the disabled witness is measured? This case suggests that the
intelligibility of the testimony of the disabled witness depends on how
closely it approximates the modes of expression of the able-bodied.
If that is the case, one wonders if non-verbal testimony could at all be
commensurable with the expected standards of intelligibility.
In almost all the cases discussed above, not satisfied with the
testimony of the prosecutrix, the judges turned to medical evidence for
corroboration. Medical evidence, as has been demonstrated by feminist
activists and scholars, works in problematic ways to infer consent, nonconsent and false allegation by the prosecutrix (Baxi, 2005). As referred
to earlier, one of the primary means through which judicial discourse
infers consent/non-consent of the prosecutrix to the sexual act is by
looking for presence or absence of marks of injury (resistance) on the
14
Saptarshi Mandal
Based on this, the judge stated that it could not be inferred that
the prosecutrix did not consent to sexual intercourse. However upon
15
insistence by the Public Prosecutor, the judge concluded that the only
offence that could be made out from the evidence on record was that
the accused had outraged the modesty of the prosecutrix. Hence
the accused was sentenced under Section 354 of the Indian Penal
Code instead of 376, and ordered to pay compensation of ` 5000/- to the
prosecutrix.
The line of reasoning adopted by the judge in this case is not new to
feminist activists and scholars working on rape. Marks of injury or the
lack thereof on the womans body are interpreted as non-consent/consent
in all rape cases. How significant are such assumptions in cases of rape
of disabled women? I would argue that the process of pitting the body
against the speech of the prosecutrix plays out differently in the case of
disabled women. The absence of the desired standard of intelligibility in
the testimony appears to be particularly burdensome here, as her speech
here is already deemed irrelevant, thus making it easier for patriarchal
discourses to provide uncontested explanations of the evidence borne by
her body.
The manner in which the responsibility to exhibit bodily resistance to
prove credibility plays out on the disabled body, is illustrated in the following two cases. In Gopal Bhowmik vs State of West Bengal,20 the prosecutrix was deaf and mute, and she was examined in court with the help
of a sign language expert. Based on her testimony and other evidence,
the accused was convicted of rape by the trial court. On appeal before the
Calcutta High Court, the accused argued that since the allegation of rape
was not confirmed by medical examination, it was not prudent to convict
the accused simply on the basis of the prosecutrixs testimony. The judge
quoted various Supreme Court judgements that held that corroboration
of the prosecutrixs testimony was not required if it inspired confidence. However, after noting that the testimony of the prosecutrix was
recorded in a legally valid manner with the help of a competent person,
the judge went about poking holes in the prosecution case. In the course
of cross examination of a neighbour of the prosecutrix, the neighbour
had deposed that though the prosecutrix could not speak, she could
make sound loudly. This revelation left the judge surprised that
strangely none heard the cries of the prosecutrix although she could
make loud sound. The improbability of the allegation of rape was further bolstered by the medical examinations of the prosecutrix and the
16
Saptarshi Mandal
accused, which did not find any injury, bleeding or abrasion on the bodies of the prosecutrix or the accused.21 The accused was therefore
acquitted.
In Mafijuddin Sheikh vs State of West Bengal,22 the allegation against
the accused was that he lured the prosecutrix, who was deaf and mute,
with the promise of ornaments and marriage, and had sexual intercourse
with her on several occasions. It was also alleged that subsequently, she
was threatened with reprisals in case she disclosed the incidents to anybody. On appeal against the conviction awarded by the lower court, the
Calcutta High Court stated:
According to the learned Sessions Judge, the victim girl could not raise any
protest due to her physical handicapness [sic]. But I regret, I cannot agree
with this observation of the learned Sessions Judge. Certainly, the victim girl
has the physical handicapness [sic], being a deaf and dumb person and we
have got full sympathy for her. But, that does not mean, that only for that reason, whatever the victim girl had stated in her evidence, should be accepted
as gospel truth in order to convict a person for the offence under Section 376
of the IPC. Even if there is a forcible sexual intercourse of the victim girl
by the accused/appellant, then I fail to understand as to what prevented the
victim girl to make a sound of protest at the time of the incident particularly
when the other family members were present in the house [sic]. There is no
explanation for that.
17
context that otherwise conceives disability as a fixed, totally incapacitated state of being. At another level however, it is unreasonable and
problematic because this sets up a hierarchy of credibility based on the
degree of bodily incapacity, such that a prosecutrix can be regarded as
credible only if she is made to appear as totally incapacitated, mute
and helpless. This is borne out by a judgement discussed in the next
section.
Costs of Conviction
The cases discussed so far have typically led to acquittal of the accused
or conviction for offences less serious than rape, as was originally
alleged. What I have basically suggested so far is that the testimony of
the disabled prosecutrix, which is an integral part of the rape trial, is
ignored in most cases, thus leading to the failure of the prosecution case.
But there are indeed a small number of cases where the accused is convicted even in the absence of testimonial evidence of the prosecutrix or
even when such testimony lacks the qualities of certainty and precision.
In this section, I discuss some of these successful cases to see exactly
what the magical elements were in these cases that were not present in
other similar cases, to cause the judges to convict the accused.
In Bhagwania vs State of Rajasthan,26 the prosecutrix was a minor of
eight years, who was deaf and mute. Medical examination of the prosecutrix recorded signs of forced sexual intercourse and other injuries on the
body. Additionally, marks of injury were also found on the body of the
accused, which were read as signs of struggle and resistance put up by
the prosecutrix. This was complemented by the evidence of the eye witnesses, who had seen the accused rush out of the prosecutrix room and
had tried to catch hold of him. The accounts of the eye witnesses were
also consistent with each others, thus strengthening their evidentiary
value. The prosecutrix was examined by the trial court, but the High
Court judgement does not tell us if the help of an interpreter was taken.
The judgement only records that on being asked, she only uttered the
words (vernacular matter omitted) and by saying these words, she
pointed out towards the accused-apellant.
18
Saptarshi Mandal
The learned trial Judge further observed that:
after that she did not speak anything and nothing was said by that child prosecutrix even by pointing out something. Hence, her evidence was closed. In
my considered opinion, from perusing the statement of the child prosecutrix,
one thing appears that what she wanted to say she has stated that is she was
raped by accused-appellant [sic].
Placing all the pieces of available evidence together, the judge was
convinced that there was sufficient ground for convicting the accused.
Despite the inability of the dumb victim to describe the rape in words,
the judge observed that the firmness of the other sources of evidence
outweighed the lack of a clearer testimony by the victim. The helplessness of the child with speech disability and proof of resistance in the
form of injuries on the bodies of both victim and rapist lent authenticity
to the accusation of rape and credibility to the victims imperfect testimony. Thereupon, the conviction of the accused by the trial court was
confirmed.
In the case of Samitri and Ishwar Singh vs State of Haryana,27
the prosecutrix who was 17 years old, was mentally disabled with
the right side of her body paralysed, and as the High Court emphasised
in its judgement, was unmarried. It was alleged that Samitri had
taken the prosecutrix to Ishwars house on some pretext. And while
Ishwar raped the prosecutrix, Samitri stood guard outside the room.
The forensic evidence gathered from the clothes and injuries in
the vagina revealed by the medical examination of the prosecutrix,
confirmed forced sexual intercourse. The prosecutrix was examined
by the court and her testimony was recorded, though the judgement does
not mention the content of the testimony. The judge was nevertheless
sympathetic to the prosecutrix and even appeared to be willing to
gloss over some of the contradictions in the testimony. The judge foregrounded his consideration of the evidentiary value of her testimony
with the following lines:
In the case of heinous crime of abduction and ravishment of the minor mentally and physically challenged girls, the court should not expect the prosecution to discharge the onus with so much certainty or vehemence as in the
other cases. These victims already suffering from the disease and deformity
19
are helpless and cannot produce or remonstrate their objection and denial by
showing such resistance as their body is not in a position to display the same.
Even the mentally retarded girls some times do not understand the meaning,
nature and consequences of the offence. In case of such victims the statements of the witnesses, if any, the testimony of the prosecutrix as well as the
medical evidence plays a great role.
The conviction of the accused for rape by the trial court was therefore
upheld by the High Court. We can compare this judgement with the two
judgements referred to in the previous section where the allegation of
rape was dismissed upon finding that the speech and hearing impaired
women were capable of demonstrating objection by making sound but
did not do so.28 In those two cases, the finding that the prosecutrixes were
not totally incapacitated by their impairments, made the judges circumspect about relying on their testimonies and this led to the acquittal of the
accused. In this case on the other hand, the accused was convicted.
However, this was achieved only by foregrounding the script of victimhood (of the prosecutrix) and de-emphasising all those facts of the case
which might have shown her to be not entirely incapacitated. The narrative of complete helplessness and victimhood of the prosecutrix, emphasised in the judgement to justify a lower standard of burden of proof, is
contrary to what is recorded by the judgement itself: that the prosecutrix
narrated the incident to her mother and later testified in court. As the
judge himself further tells us,
20
Saptarshi Mandal
Her testimony speaks to the volumes [sic] of her truthfulness. She has withstood the test of cross examination and is proved to be credible and reliable
qua what she spoke against the accused.
There was hardly any detailed engagement with the testimony of the
prosecutrix. Instead, the entire rationale behind the conviction of the
accused turned on sympathy for the helpless prosecutrix and her inability
to physically resist the aggressor. Even if one agrees with the judge that
there cannot be a single standard of burden of proof for the disabled and
the able-bodied, a differentiated scale of burden of proof must be based
on the concept of vulnerability, not victimhood.29 Telling the victim
story might be strategically useful and might lead to occasional victories,
but as Mary Coombs has argued, this has a socio-cultural cost, as it
leaves unchallenged the culturally available scripts of credible stories
about sexual violence, the range of which is much narrower than that of
true stories (Coombs, 1993).
Let us see what the Supreme Court of India has to say on the issue.
The attitude shown by the lower courts, that the testimony of a disabled
prosecutrix is irrelevant for the purpose of a rape trial, is not only
reflected in the approach of the Supreme Court, but validated by it. In
Mange vs State of Haryana30the only reported judgement of the
Supreme Court on this questionthe prosecutrix was a 13-year-old girl,
a deaf-mute. Her testimony was not recorded at any point, nor was she
examined in court during the trial. The accused was convicted by the trial
court on the basis of evidence given by an eye-witness to the sexual
assault, which was corroborated by the presence of blood stains on the
salwar worn by the prosecutrix and medical evidence confirming forced
sexual intercourse. On appeal to the Supreme Court against the conviction, one of the contentions of the accused was that the prosecutrix had
not been examined, and that it was a major infirmity in the prosecution
case. The court brushed aside this contention by holding that,
[a]part from being a child witness, she was also deaf and dumb [sic] and no
useful purpose would have been served by examining her.
There could not have been a clearer statement of bias arising from the
presumption of incapacity of the disabled. If we understand law as an
authoritative discourse through which the subject is constituted, then the
21
Conclusion
I have attempted to show in this article, how in a rape trial, the testimony
of a disabled prosecutrix is read through a complex maze of rules and
judicial practices, representing notions of impartiality, difference, intelligibility, capacity, credibility, sexuality and so on. Further, I have also
argued that the practice of not recording the testimony of the disabled
prosecutrix is not merely a matter of procedural failure, but that it points
towards a more fundamental question of law. In a context where the
rules governing testimonial evidence privilege verbal, first-person,
unmediated accounts having descriptive precision, how do we evaluate
testimony that is non-verbal, mediated via an interpreter and always vulnerable to incomplete translation? How can feminist law reform efforts,
committed to making the prosecutrixs experience of sexual assault central to the trial process, address this question? In this concluding section,
22
Saptarshi Mandal
I look at the ways in which the Indian womens movement has incorporated issues of disabled women while addressing rape law reform.
The proposal to include the disabled in the law of sexual offences is
intertwined with the history of rape law reform in India. In 1983, major
changes were brought in the law of rape for the first time since its enactment in 1861, following the nationwide campaign by the womens
movement in the wake of the Supreme Court judgement in the Mathura
case.32 One of the highlights of the 1983 amendment was Section 376
which covered custodial rape by the police, public servants, jail authorities, remand home authorities, gang rape and rape on pregnant women
and minors. The greater vulnerability of the woman, vis--vis the aggressor in such situations justified their being clubbed together in one clause.
In keeping with this understanding, the burden of proof was reversed and
placed on the accused in such situations.33 That is to say, once it is proved
that sexual intercourse had taken place and the prosecutrix testifies that
it was without her consent, the court must presume that she did not consent and it would be upon the accused to disprove the allegation. Further,
the minimum punishment in such cases of aggravated rape was 10 years,
which was seven years for other cases. The Bill that resulted in the 1983
amendment was referred to a Joint Committee of the Parliament.
Following representations made by the womens groups, the Joint
Committee in its report, which gave final shape to the amendment, had
suggested that rape on physically or mentally disabled women be
included within the ambit of the proposed clause on custodial rape
(Gangoli, 2007, p. 86). But ultimately the suggestion did not make it to
the resultant amendment, which incorporated Section 376 into the Indian
Penal Code.
Since then, changes have been brought a number of times in the
evidentiary and procedural law pertaining to rape.34 A radical overhaul of
the substantive rape law was attempted by the womens movement in
1993,35 which revived the suggestion of the Joint Committee relating to
rape on disabled women, made 10 years ago. Thus persons suffering
from mental or physical disability was proposed to be added to the
existing list of offences categorised as aggravated sexual assaults.36
The 1993 proposal did not lead to an amendment to the law. But the
formula of extending legal protection to disabled victims of sexual
assault by categorising it as an aggravated sexual assault with its
23
24
Saptarshi Mandal
Notes
1. Although I use the terms disabled and disability without any qualification
in this article, I must clarify that my illustrations and arguments are limited to sensory and intellectual disability. The women, in the judicial decisions that I cite in this article, are either deaf and mute or deaf but not mute
or have mild intellectual disability. The burden of intelligibility that they
encounter while testifying in court, is not what is faced by people with other
2.
3.
4.
5.
6.
7.
8.
9.
25
26
Saptarshi Mandal
10. MANU/MH/0660/2003.
11. MANU/RH/0502/2009.
12. A Test Identification Parade is part of the process of investigation, which is
carried out when a witness has seen the accused commit the alleged offence,
but does not know his/her identity. The accused or the suspect is made to
stand along with a number of persons and the witness is asked to identify the
person who, according to him/her, committed the alleged act. It is carried out
prior to the trial, for the investigating agency and the prosecution to make
sure that the witness is able to identify the accused with certainty. As such,
the findings of a TI Parade do not have strong evidentiary value.
13. MANU/KA/0159/2005.
14. A crime is usually thought to involve several stages: intention, preparation, attempt and finally, the actual commission of the crime. The Indian
Penal Code criminalises all those acts, which if uninterrupted and successful
would amount to a crime. Such acts are punishable as attempt to commit a
crime.
15. MANU/MP/0556/2009.
16. MANU/HP/0148/2001.
17. MANU/AP/0188/1997.
18. The 2005 amendment to the Code of Criminal Procedure lays down the
procedure to be followed by medical professionals while conducting medical examination of the accused and the prosecutrix in cases of rape. Sections
53A and 164A specify the particulars that must be recorded by the doctors
during such examinations, including the marks of injury, if any, found on the
bodies of both the accused and the prosecutrix. Injuries must be recorded
during medical examination not only for a clinical purpose but also to highlight the extent of physical violence involved in sexual assault. Presumably,
this was the intention behind this amendment. But is it also possible that this
amendment might bolster the already existing notion that the truth of an
allegation of rape could be derived from the marks of injury? I think it is too
soon for us to tell what impact this amendment has had on evidentiary practices followed in rape trials. Also, I doubt if we can understand the impact of
this amendment by reading court judgements.
19. MANU/TN/8613/2007.
20. MANU/WB/0224/2006.
21. The examination of the prosecutrix recorded that she was found to be nonco-operative and resistible [sic] while she was being examined and that
no injury to the vagina or bleeding was noted. The doctor examining the
accused noted that if a penis is put on the vagina there is possibility of abrasion on the penis. However no such marks of injury was found on the penis
of the accused MANU/WB/0224/2006.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
27
MANU/WB/0628/2005.
See Note 20.
See Note 22.
Judicial concern in these cases, with the particularity of the body of the
disabled prosecutrix and its ability to signify resistance, is reminiscent of
the image of the working class body in colonial judicial discourse on rape.
Working class women, by virtue of their being accustomed to hard labour,
were presumed to have a greater physical ability to resist the aggressor,
than women belonging to the upper social strata. Consequently, judicial discourse cast a higher evidentiary burden on them to exhibit signs of bodily
resistance, to prove the allegation of rape (Baxi, 2005; Kolsky, 2010).
MANU/RH/0893/2001.
MANU/PH/1025/2010.
See Notes 20 and 22.
Elaborating on the distinction between vulnerability and victimhood is
beyond the scope of this article. See Fineman (2008) for a feminist statement on vulnerability.
MANU/SC/0165/1979.
Surprisingly, none of the High Court judgements examined in this article
cite this judgement of the Supreme Court, though it is a fairly old one (1979)
and all the High Court cases that acquitted the accused because the prosecutrix testimony had not been recorded, are of later years. This judgement is
mostly used to support the view that non-examination of the child prosecutrix in rape cases does not harm the accused and hence, does not weaken the
prosecution case.
Tukaram vs State of Maharashtra, MANU/SC/0190/1978.
Section 114-A, Indian Evidence Act, 1872.
The Indian Evidence (Amendment) Act 2002; The Code of Criminal
Procedure (Amendment) Act 2005; The Code of Criminal Procedure
(Amendment) Act 2008.
Draft Amendment to Sexual Assault Law 1993.
The 1993 proposal sought to reformulate rape as sexual assaultthat
is, rape not as a crime of sex but as a crime of violence, though of a sexual
nature.
Several versions of a Criminal Law Amendment Bill were drafted in 2000,
2002 and 2006. Some of the amendments suggested by the 2006 version
have been incorporated in the law through the amendments in Note 34.
Draft Criminal Law Amendment Bill, 2010. This Bill is presently under consideration by the Central government.
In a recent judgement, State of Rajasthan vs Darshan Singh [(2012) 5 SCC
789], the Supreme Court of India has reiterated that there is nothing, in law
28
Saptarshi Mandal
or otherwise, that prevents a deaf and mute person from being a competent
and credible witness.
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