Report No. 172
5.2.1. Suggestion No.2.-
For a proper appreciation of the suggestion for amendment of section 155, it would be appropriate to set out section 155 in full (omitting the illustrations). It reads as follows:
"155. Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him:-
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Explanation.- A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though if they are false, he may afterwards be charged with giving false evidence."
5.2.2. Section 155 sets out the manner in which the credit of a witness may be impeached. Clause (4) specifically deals with prosecution for rape. In such a prosecution, the Act permits the man prosecuted for rape (or an attempt to ravish) to show that the prosecutrix was of generally immoral character. We are of the opinion that this clause ought to be deleted. We see no relevance or reasonable connection between offence of sexual assault (mentioned under sections 375 to 376E) and the general immoral character of the victim. No one can claim to have a right to have forced sexual intercourse with a woman even if she is generally of an immoral character. In this context, we may refer to the pertinent observations of the Supreme Court in State of Punjab v. Gurmit Singh (AIR 1996 SC 1393) which are to the following effect:
"15. We must express our strong disapproval of the approach of the trial Court and its casting a stigma on the character of the prosecutrix. The observations lack sobriety expected of a Judge. Such like stigmas have the potential of not only discouraging an even otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals, thereby making the society to suffer by letting the criminal escape even a trial.
The Courts are expected to use self-restraint while recording such findings which have larger repercussions so far as the future of the victim of the sex crime is concerned and even wider implications on the society as a whole - where the victim of crime is discouraged - the criminal encouraged and in turn crime gets rewarded. Even in cases, unlike the present case, where there is some acceptable material on the record to show that the victim was habituated to sexual intercourse, no such inference like the victim being a girl of "loose moral character" is permissible to be drawn from that circumstance alone.
Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the Courts, for after all it is the accused and not the victim of sex crime who is on trial in the Court."