Report No. 185
Section 53 and 54 refer to relevancy of character in criminal cases and go together. Section 53 refers to relevancy of previous 'good character' in criminal cases while section 54 refers to relevancy of bad character "in reply".
Section 53 reads as follows:
"Section 53: In criminal proceedings, the fact that the person accused is of a good character, is relevant.
Explanation 1. This section does not apply to cases in which the bad character of any person is itself a fact in issue.
Explanation 2. A previous conviction is relevant as evidence of bad character."
In the 69th report, it was stated (p. 357) that Section 53 does not require any change. We agree.
Section 53A(as proposed):
In the 172nd Report at para 184.108.40.206 the Law Commission recommended insertion of Section 53A as follows:
"53A. In a prosecution for an offence under sections 376, 376A, 376B, 376C, 376D, 376E or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of his/her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent."
It may be noted also that the Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003), a proviso has been added in Section 146(3) as follows:
"Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put question in the cross-examination of the prosecutrix as to her general immoral character."
The above amendment appears to cover only Section 376 IPC. The amendment now proposed in the 172nd Report applies to other sexual offences against women where also consent is relevant and question arise as to what type of evidence is permissible to prove her consent. But, that Report is not yet implemented by way of legislation.
In any event, section 53A proposed above being wider than the proviso to Section 146(3) introduced by Act 4 of 2003, we recommend Section 53A 304 as above extracted to be inserted after Section 53, omitting reference to Section 376E (which has not yet been incorporated in the IPC).
The 172nd Report also refers to Section 376E IPC, but that provision has not yet been incorporated in the IPC. Therefore, we are omitting Section 376E for the present but as and when Section 376E as proposed in that Report is introduced in the IPC, that provision may also have to be added in Section 53A.
We recommend Section 53A to be inserted as follows:
"53A. Character of victim not relevant in certain cases.- In a prosecution for an offence under section 376, 376A, 376B, 376C or 376D or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of her previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent."