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Indian Journal of Gender

Studies
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The Burden of Intelligibility: Disabled Women's Testimony in Rape


Trials
Saptarshi Mandal
Indian Journal of Gender Studies 2013 20: 1
DOI: 10.1177/0971521512465934
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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

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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.

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Disabled Womens Testimony in Rape Trials

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.

Gender, Disability, Testimony and


Evidentiary Value
The rules of evidence law determine what sources of verbal information
can be used as evidence in a court of law. The rules of evidence, particularly those relating to testimonial evidence, are premised on their ability
to illuminate objective facts to the judge and help him/her arrive at the
truth in an impartial manner. Hence, in order to be relevant, testimonial evidence must be based on direct experience, unambiguous, specific, consistent, that is, not changing over a period of time, inspiring
confidence despite absence of corroboration and so on. Testimony that
is found wanting in these and similar attributes is to be dismissed as
unreliable evidence and unhelpful in the pursuit of impartial adjudication. Impartiality, as a desired value, not only structures the rules of
evidence, but also provides the link between the rules of evidence
and those of criminal law doctrine, such as presuming the accused to be
innocent until proven guilty or the requirement of proof beyond reasonable doubt for convicting a person of an offence. The idea (ideal) of

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impartiality, as Iris Marion Young (1990) argues, requires the affirmation


of universality and negation of difference. The impartial reasoner must
assess all situations with the same, universal rules and the more the rules
can be reduced to a single rule or principle, the more impartiality is
ensured. At the same time, for the universal rule to lead to impartial
judgement, there must be some unity among the persons who are subjected to the rules. What is subjected to the universal rules is thus presumed to be a core essence or identity common to all persons, that is
abstracted from the particularity of bodily being, its needs and inclinations, and from the feelings that attach to the experienced particularity of
things and events (Young, 1990, p. 100). Thus impartiality in judgement
can be achieved only by exorcising all traces of difference emanating
from the particularities of bodies, feelings and situations, from the reasoning process. Does the will to universality, which according to Young
is the defining aspect of impartiality, also mark the construction of the
subject testifying before the court? Do the rules governing testimonial
evidence accommodate difference? And in case they do, then, to what
extent?
Section 118 of the Indian Evidence Act 1872 talks about who is capable of testifying in court.3 This Section calls for a presumption that all
persons are capable of testifying, unless there are extraordinary circumstances such as young age, old age, disease and so on, in which cases
their capacity to testify needs to be specifically assessed. Thus the presence of a disease or disability, whether of body or mind does not itself
imply the lack of capacity to testify. A persons capacity to testify depends
on his/her ability to understand the questions put to him/her and give
rational answers to them. This is further made clear in the Explanation
to Section 118, which states that a lunatic does not become incompetent
to testify simply by virtue of his/her lunacy. A lunatic could still give
evidence, if it is found that he/she is able to respond to the questions put
to him/her.
The next Section of the Act states the manner in which evidence of a
person who is unable to speak, may be recorded:
Section 119 Dumb witnesses: A witness who is unable to speak may give
his evidence in any other manner in which he can make it intelligible, as by
writing or by signs; but such writing must be written and signs made in open
court. Evidence so given shall be deemed to be oral evidence.

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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

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failure to raise alarm, failure to report the incident promptly or absence


of injuries on the body of the prosecutrix or the accused are used to infer
consent on the part of the prosecutrix. Consequently, these factors or the
findings of medical examination are accorded greater evidentiary value
than the testimony of the prosecutrix herself.
Contrary to what the Evidence Act says, trends in judicial decisions
reveal that the very presence of disability leads judges to presume that a
witness is incapable of testifying. As the judgements discussed in the
next section of this article show, running under the surface of judicial
pragmatism is the presumption that disability, irrespective of nature or
extent, implies incapacity to comprehend and answer the questions
posed, and hence inability to fully participate in the legal process. The
testimony of the disabled witness is discounted because of the presumed
incapacity of the disabled to independently observe, recollect and narrate the experience to which he/she is testifying. Additionally, in the case
of the disabled witness, both the testifier and the form in which the testimony is presented (non-verbal, through signs or gestures) are tested
against the rules assessing the quality of evidence.
The normative witness is the able-bodied one, capable of independent judgement as to what happened and intelligible narration of the
same. The disabled witness is a departure from the norm on both counts.
The disabled witness is hence, not only thought to be different from, but
also necessarily inferior to, the normative able-bodied witness. I would
argue that this presumption of incapacity, along with the threat to impartiality that the difference of disability brings to the adjudication process, explains the low evidentiary value accorded to the testimony of the
disabled prosecutrix in rape trials, and hence the lax attitude towards
recording the same, even when the law specifically provides space for
non-verbal testimony.
I would conclude this section by going back to the question of how
credibility is assigned to the prosecutrix in rape trials. Feminist legal
scholars have extensively documented how judgements regarding credibility of the prosecutrix in rape trials centre on the idea of victimhood,
which in turn is filtered through notions regarding female sexuality and
normative feminine behaviour (Agnes, 1992; Das, 1996; Kannabiran,
2002). In the judicial imagination, the paradigmatic rape victim is the
virgin daughter or the chaste wife (Kapur and Cossman, 1996, p. 121)

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whose sexuality is understood to be located within the private realm of


the family, the breach of which by an outsider then constitutes rape as a
serious offence. Consequently, greater credibility is accorded to such
victims than those whose sexuality is considered to have become public by virtue of engaging in non-marital sex. Judges are more circumspect in believing the accounts of all those women who depart from the
image of the paradigmatic rape victimmarried women who are shown
to have sexual relationships outside marriage, single women who upon
medical examination are shown to be habituated to sex, sex workers
and so on.6 With respect to our purpose here, we should then ask, how
does the notion of victimhood animate judicial judgements regarding
the credibility of the disabled prosecutrix? And further, to what extent
are such judgements marked by notions of normative sexuality and
behaviour? What factors make the disabled prosecutrix inspire judicial
confidence and what factors undermine the same?

Devaluing the Testimony of the


Disabled Prosecutrix
In this section, I attempt to show how criminal law doctrine and the rules
of evidence operate in ways that devalue the testimony of the disabled
prosecutrix. To devalue something in the context of law, is to discursively construct it in such a way that for the actors in the legal process
there is no incentive to see it as having a bearing on the outcome of the
case. There is, hence, no incentive to see it as of any relevance in furthering the part played by various players in the legal processfor the
police, gathering the relevant information; for the lawyers, prosecuting
or defending the accused; and for the judges, in arriving at the truth to
determine the guilt or innocence of the accused. The judgements discussed in this article reveal how the testimony of the disabled prosecutrix is typically seen by all the actors in the trial process as something
that could be dispensed with, without risking or losing anything of value
in pursuit of ones legally defined objective. But as I hinted in the introduction, this devaluation of testimony of the prosecutrix is not simply on
account of her disability. This practice/tendency fits neatly with one of
the background rules governing rape trials, that the testimony of the

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prosecutrix is of low evidentiary value, even though the official narrative


of progress of Indian rape law insists that an accused can now be
convicted solely on the basis of the prosecutrixs testimony without any
corroboration, if it inspires confidence.7 On the other hand, such devaluing practices are not encountered when the accused is disabled.8 In fact,
there is a heightened level of care and scrutiny when the accused is
speech or hearing impaired, which is again consistent with another background rule governing the rape trial (and criminal law in general), that
the prosecution case must be foolproof to the extent possible, so that an
innocent person is not punished.9 Both these background rulesone
which does not provide incentives to value the disabled prosecutrix and
the other which takes the disabled accused seriouslyare present in the
rape trial, which is a highly gendered process. And therefore I argue,
that the axis of disability cannot be separated from the larger gendered
framework of the trial, constituted by the above mentioned background
rules of criminal law and evidence. In what follows, I identify four ways
in which the legal process undermines and devalues the testimony of the
disabled prosecutrix. These are:
Not recording the testimony of the prosecutrix at all;
Recording her testimony without following the correct legal procedure, which renders such testimony ineffectual for the purpose
of law;
Recording her testimony in the legally valid manner, but dismissing it eventually for its lack of intelligibility;
Recording her testimony in the legally valid manner, but dismissing it eventually for not being consistent with the evidence borne
by her body.
In Suresh vs State of Maharashtra,10 a twenty-year-old woman who
was deaf, mute and mentally retarded, was alleged to have been raped
by the accused. The only person who had seen Suresh committing the
rape was the prosecutrixs grandfather. The grandfather died before
the trial could begin, and hence his evidence could not be recorded by the
court. The prosecution did not examine the woman, and the trial court
did not insist on the same either, on the ground that her non-examination
did not adversely affect the prosecution case because [the prosecutrix]

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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

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the account of an eye-witness, which was discounted by the court as


that of an interested witness. Indeed, the testimony of the eye-witness
was riddled with inconsistencies and hence not strong enough to
convict the accused. Evidence from the forensic examination was not of
any help either as the clothes of the prosecutrix and the accused persons
were collected and examined several days after the incident. In the
absence of any strong evidence, the trial court acquitted the two accused
persons. On appeal against the acquittal, the High Court affirmed the
relevance of the testimony of the prosecutrix and noted that it was a
settled position of law that conviction could be based solely on the
testimony of the prosecutrix if it is found trustworthy and worthy
of credence. But the testimony of the prosecutrix had not been recorded
in this case. The acquittal by the trial court was therefore confirmed by
the High Court.
The case of Dilawarsab Alisab Jakati vs State of Karnataka,13 presents
a slight variation of the situations encountered in the cases above. Here,
the prosecutrix was indeed examined by the trial court. However, it was
not done as per the procedure laid down in law, which rendered the testimony legally redundant. The prosecutrix was mute and a minor, who
was alleged to have been raped by her cousin, Dilawarsab. The accused
was caught in the act by the father of the prosecutrix, based on whose
account the trial court convicted the accused. The conviction was challenged in the High Court, which sought to examine the manner in which
the lower court had recorded and assessed the evidence presented before
it. There were three sets of evidence before the court: first, the account of
the father of the prosecutrix, which was supported by the accounts of her
mother and brother, who were present in the vicinity; second, the evidence from the medical examination of the prosecutrix; and third, the
account of the prosecutrix herself, who was examined with the help of an
interpreter. The injuries sustained by the prosecutrix had been tended to
at home using household remedies and she was medically examined
after more than 24 hours, due to delay in reporting to the police. As a
result, the medical examination did not record any of the tell-tale signs
of forced sexual intercourse, such as inflammation or abrasions in/
around the genitalia. Instead, the medical report recorded that the hymen
was not ruptured, thus leading the court to be more cautious about the
allegation of rape. The High Court therefore held that the evidence from

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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

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outraging the modesty of the prosecutrix. Here the prosecutrix was a


minor girl, who was mute but not deaf. The eye witness account of her
brother, who caught the accused lying on top of the prosecutrix, was
deemed insufficient to prove rape. Hence in order to determine what the
offence committed was, the High Court turned to the testimony of the
prosecutrix that was recorded by the trial court with the help of a sign
language expert. Her testimony was recorded in the High Court judgement, thus:
To the question whether the accused was known to her this witness knodded
[sic] her head vertically and the interpreter stated that her answer was yes.
As to the question, what happened to her in the past the witness stated that
the accused slightly lifted her petty coat (lenga). To the question what else
was done to her the witness pointing her private parts (vagina), with her right
hand, stated that something was done on her vagina, and to a further question
whether the same thing was done in a sitting position or in a lying position,
she stated with signs that it was in a lying position. To a further question what
the accused did exactly, she stated that her petty coat was lifted and also her
jacket and at this point of time she started weeping. But, she was consoled by
the interpreter. To the question whether she agreed or objected to such an act
she replied by knodding [sic] her head horizontally indicating that she did not
agree for the act done by the accused.

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.

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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

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body of the prosecutrix.18 Veena Das has described these practices as


judicial techniques through which the womans body is made to confess
against her explicit speech (Das, 1996, p. 2411). The body of the prosecutrix, Das (1996, p. 2418) argues, is seen as the
[s]urface on which the judicial gaze can read different kinds of signs, establishing either complicity to sexual intercourse or resistance to it. The presence
or absence of injuries, the state of the sexual organs of the woman all become
evidence of where her place is in the division between virtuous and wanton
women.

Judgements discussed in the following pages show how signs read on


the body of the disabled prosecutrix are deployed to discount and dismiss her testimony, even when it is recorded in the procedurally valid
manner. In Abimannan vs State by Inspector of Police,19 the conviction
of the accused for committing rape of the prosecutrix, who was deaf and
mute, was challenged before the High Court. The High Court judgement
records that the prosecutrix could not speak coherently but she could
speak one or two words and that she was a spinster. She was examined
with the help of the Headmaster of a school for the deaf and mute,
who deposed that the prosecutrix is partially impaired of hearing and
was able to speak father and mother only. The substance of her
testimony, however, is not recorded in the judgement. In addition there
was the testimony of the father of the prosecutrix, who had caught the
accused coming out of the house immediately after the incident. The
medical examination stated that the hymen was found ruptured and
concluded that the prosecutrix had had sexual intercourse previously.
At the appellate stage, the High Court looked at the evidence from the
medical examination alone, and observed:
If the victim girl would have resisted the accused from committing the
offence certainly, she would have sustained minor injuries on her hands, neck
or on other parts. But according to the doctor, she had not seen any external
injuries on the person of the victim girl. But she had deposed to the fact that
the hymen of the victim girl was found ruptured.

Based on this, the judge stated that it could not be inferred that
the prosecutrix did not consent to sexual intercourse. However upon

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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

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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.

Admittedly, there were other discrepancies in the prosecutions


version in this case that along with the above mentioned grounds led to
the acquittal of the accused. But the point that is relevant for us to
note in these two cases, is how the truth of the allegation of rape was
discovered by focusing the judicial gaze on the particularity of the
disabled body. The question asked was: why didnt the prosecutrix
make a sound of protest when she was capable of doing so? This
necessarily begged another question: what was the prosecutrix body
capable of? The particularity of the disabled body and its ability to make
sound loudly23 or make a sound of protest24 then became in these
cases, the register on which the reliability of the recorded testimony of
the prosecutrix was assessed.25 At another level, this prying open of the
disabled body to judicial scrutiny, in these cases, is a rare glimpse of
judicial engagement with the actual capacity of the disabled subject, in a

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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.

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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

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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.

In short, the judge was convinced that a less exacting standard of


proof could be adopted in cases where the prosecutrix was disabled. This
lower standard of certainty was justified by the greater level of suffering, bodily deformity and helplessness of the disabled prosecutrix, leading to her inability to resist sexual assault. And hence, the judge
concluded:
With regard to some contradictions in the statement of the prosecutrix, it may
be observed that the prosecutrix being [a] mentally retarded girl she could not
be expected to give statement with so mathematical calculation at par with
the other witnesses [sic]. As such, the aforesaid minor discrepancies with
regard to medical evidence as well as factual situation could be ignored in the
background of the present case.

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,

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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

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view of the Supreme Court is immensely problematic as it constructs


disability as an unchanging, undifferentiated status that necessarily incapacitates the disabled from participating in the legal process. The identity of the disabled is written into the law as a non-subject, as it were. The
pronouncement of the Supreme Court cited earlier can be used favourably before the High Courts by the prosecution to counter the argument of
the accused that non-examination of the prosecutrix during the trial is a
major infirmity in the prosecutions case.31 While getting a conviction on
the basis of the Supreme Courts view could be read as success, the cost
of such a judicial approach or litigation strategy is that the notion of disability as incapacity becomes part of legal commonsense.
The three successful cases discussed earlier show that the absence of
testimonial evidence of the prosecutrix ceases to have a detrimental
effect on the outcome of the case, only when the facts of the case resonate with the culturally recognisable script of the rape of the innocent,
virginal, helpless victim. The strict burden of proof and other evidentiary
requirements that were insisted upon in the cases discussed in the previous section are seen to be relaxed here to convict the accused, but only at
the cost of invoking all the stereotypes regarding the disabled witness
and the paradigmatic rape victim.

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,

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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

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attendant procedural and evidentiary features, was reproduced, with


minor variations in language, in all the subsequent law reform efforts by
the womens movement in 2000200637 and then in 2010.38 Consequently,
this has emerged as the lone strategy of addressing the problems faced
by disabled women in their interaction with the legal process in rape
cases.
But as I have shown in this article, the primary reason why rape cases
of disabled women results in acquittal is because due importance is not
given to the testimony of the prosecutrix by the police, prosecution and
trial judges. It is not my argument that disability comes up as the single
most important hurdle in rape cases involving disabled women. In fact,
in every case discussed in this article, the issue of testimony of the prosecutrix in combination with other factors resulted in the acquittal of the
accused. However, disregarding and disqualifying the testimony of the
prosecutrix did weaken the overall case of the prosecution, leading
to acquittal. If conviction of the accused is the objective of moving
the legal process in a case of rape, then the point of intervention of
law reform efforts should be somewhere other than where it is in
current feminist law reform proposals. It is important to remember
that even if the burden of proof is placed on the accused, the legal relevance of the testimony of the prosecutrix is not diminished. If due care is
not taken in recording and appraising the testimony of the prosecutrix,
the prosecution case is likely to fail, no matter on which party the burden
of proof lies.
I would conclude by placing three issues on the feminist agenda for
further engagement. The first aim should be to dislodge the totalising
notion of disability as a fixed state of incapacity. In concrete terms, this
would entail emphasising that the disabled witness is to be taken seriously and that his/her testimony is to be regarded as relevant and recorded
with due care as per the Indian Evidence Act.39 At the same time, we
need to ask if the familiar feminist tropes of disqualification (Smart,
1989), silencing (Finley, 1989) or subordination (MacKinnon, 1983)
are sufficient to account for the marginalisation of the non-verbal by the
legal process. We also need to ask whether feminist theory could talk
about the marginalisation of the non-verbal without subsuming it within
its foundational preoccupation with sex/gender. Second, we need to pay
greater attention to how the mode of articulation or language used by the

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prosecutrix to recount her experience of sexual violence is linked to the


disqualification (Smart, 1989) of her version by the legal process. In
the case of disabled women, we need to particularly query the role played
by the sign language expert or the interpreter in mediating between the
disabled prosecutrix and the legal process. Third, while feminist intervention in rape law in India has constantly grappled with the question of
burden of proof and under what circumstances it should be reversed,
factoring in disability into the picture challenges the idea of a universal
standard of burden of proof. If the feminist project of going beyond formal equality and foregrounding difference is taken seriously, then what
a differentiated scale of burden of proof would look like remains to be
seen. And further, how would this reworking of the traditional burden of
proof doctrine take into account the right of the accused to a fair trial? In
short, we need a deeper engagement with issues engendered by the
body and difference in legal discourse, while being mindful of the
unsettling implications of such engagement for traditional notions of
impartiality, testimony, intelligibility or burden of proof. As Jennifer
Nedelsky has written, It is essential to see with equal clarity and conviction both the impossibility of proceeding with conventional understandings of these concepts and the difficulty of generating new concepts
(1997, p. 93, emphasis in original). Addressing these issues and questions should, I hope, take us a little further in the direction of the feminist
(and disability) project in law of dislodging the notion of the disembodied subject of liberal legalism.
Acknowledgements
I must thank Renu Addlakha, Pooja Badarinath, Pratiksha Baxi, Ruchira
Goswami and Rukmini Sen for their helpful comments on previous versions of
this article.

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

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2.

3.

4.
5.
6.

7.

8.

9.

25

impairments, such as, for instance, locomotor disability or blindness. For a


description of the legal understanding of disability and its changing nature,
see Addlakha and Mandal (2009) and Mandal (2010).
Judicial decisions of the appellate courts, that is, the High Courts and the
Supreme Court, alone constitute my primary material as they are the only
judgements that are reported in Law Reports and archived in online databases. Decisions of the lower courts are not reported and hence, are not
freely available. In this article, whenever findings of and observations by the
lower courts are mentioned, they are basically what the appellate judges in
these cases are found to have noted in their judgements.
Section 118: Who may testify: All persons shall be competent to testify
unless the Court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those questions, by
tender years, extreme old age, disease, whether of the body or mind, or any
other cause of the same kind.
Explanation: A lunatic is not incompetent to testify, unless he is prevented
by his lunacy from understanding the questions put to him and giving
rational answers.
Section 282 of the Code of Criminal Procedure, 1973 allows the court to
take the help of an interpreter.
Kumbhar Musa Alib vs State of Gujarat, MANU/GJ/0037/1966; Rajesh
Kumar vs State of Himachal Pradesh, MANU/HP/0076/2007.
Section 155(4) of the Indian Evidence Act 1872, allowed the defence to
question the credibility of the prosecutrix by showing that she was of generally immoral character. This allowed the defence to ask and the court to
admit questions relating to the past sexual experience of the prosecutrix.
This provision was repealed by an amendment to the Indian Evidence Act
in 2002. Further, by adding a Proviso to Section 146, asking such questions
during cross examination have been specifically rendered unlawful.
This is the view taken by the Supreme Court of India in landmark judgements
such as these: Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, MANU/
SC/0090/1983; State of Punjab vs Gurmit Singh, MANU/SC/1374/1995.
However, such a position is not reflected in practice.
My search yielded only two cases where the accused was disabled, both of
which resulted in conviction. In Re: Boura & Drigpal vs Respondent, MANU/
MP/0763/2006; State vs Deepak Kumar Sahu, MANU/CG/0133/2006.
Thus, Section 318 of the Code of Criminal Procedure provides that if an
accused, who is unable to understand the proceedings in the court, is convicted by a lower court, then the records of the proceedings and a report by
the judge must be sent to the relevant High Court, which would then review
the conviction and pass sentence, if confirmed.

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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.

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22.
23.
24.
25.

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

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Saptarshi Mandal
or otherwise, that prevents a deaf and mute person from being a competent
and credible witness.

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