Report No. 198
2.5 Section 146 (3) of Evidence Act, 1872 introduced in 2002
Recently, the Indian Evidence (Amendment) Act, 2002 has inserted a proviso below sub-section (3) of section 146 of the Evidence Act, 1872 thereby giving protection to a victim of rape from unnecessary questioning her about her past character.
The said proviso reads as follows:
"Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible, to put questions in the cross-examination of the prosecutrix as to her general immoral character."
2.5.1 It may be recalled that the Law Commission of India in its 185 th Report on Law of Evidence had recommended insertion of a broader provision by way of a new sub-section (4) in section 146 which reads as follows:
"(4) In a prosecution for an offence under sections 376, 376A, 376B, 376C and 376D of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the crossexamination of the victim as to her general moral character, or as to her previous sexual experience with any person for proving such consent or the quality of consent.
Explanation: 'Character' includes reputation and disposition."
2.6 Thus, a survey of the provisions of the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 reveals that the accused has a right of open trial and also a right to cross-examine the prosecution witnesses in open court. There are a few exceptions to these principles and the Supreme Court has declared that the right to open trial is not absolute and video-screening techniques can be employed and such a procedure would not amount to violation of the right of the accused for open trial.
The Code of Criminal Procedure contains a provision for examination of witnesses in camera and this provision can be invoked in cases of rape and child abuse. There is, however, need for extending the benefit of these special provisions to other cases where the witnesses are either won over or threatened, so that justice is done not only to the accused but also to victims.