NATIONAL LAW UNIVERSITY ODISHA

EVIDENCE LAW PROJECT

Topic:
Testimony of Disabled women in rape trials.

SUBMITTED TO:
Mr Animesh Jena
(Research Associate cum Teaching Assistant of Law)

SUBMITTED BY:
Romit Kirtania (2020/BA LLB/076)
(BA LLB; 5th Semester; Batch of 2025)
Acknowledgment
I would like to express my deep gratitude towards Animesh Jena sir for providing me with
guidance throughout the duration of this project work. I am greatly indebted to him, and would
not have been able to complete this project without his help. I would also like to thank our Vice
Chancellor Ved Kumari ma’am and rest of the university administration for providing me with
good facilities, like lecture halls, wifi, library, etc. It has been of great assistance to me in my
arduous journey towards the completion of this project.
I thank all housekeeping staff in the campus for always supporting and helping mr, without
whom I might have never completed this project. Lastly, I also thank my friends, who have
offered great advice in times of need, and helped me in great desperations. But forget not, the
grace and bounty of the Lord Almighty, without whom nothing would have been possible. All
praise be to God.
Contents:

1. Acknowledgment

2. Introduction

3. Research Methodology

4. Scope

5. Research questions

6. Developments

7. Current status

8. Conclusion
Introduction:
The question of capability of testifying in court is addressed in Section 118 of the Evidence Act.
Everyone is presumed to be capable of testifying. However, when the witness is too old, too
young, or diseased or disabled, it needs to be ascertained if they are capable of testifying. For
that to happen, it needs to be proved that they are capable of understanding and rationally
answering questions. According to Section 119, those with speaking disability may testify by the
means of signs or writing in the court, and that it would be considered oral evidence. Therefore,
disability is technically not a bar on testifying. The Evidence Act does not restrict disabled
people from testifying or presume absolute incapability. However, this does not ensure equity in
practice, and disabled rape victims, being especially vulnerable, have faced several problems and
challenges with regards to their testimony in courts. These problems are the result of judicial
practices and conventions which, while they do not find themselves the Evidence Act, are
entrenched in the judiciary. These practices are often shaped and influenced by existing power
structures, which marginalise women and disabled people.
The testimony is expected to be eligible to be admissible, and the responsibility of it being
eligible to the judge lies on the prosecution. Along with this, stereotypes also play a role.
Women's testimonies have been regarded unreliable because of the stereotype of lying, and other
factors, such as medical examinations, have been accorded greater value. Rape victims are often
subjected to expectations And stereotypes. Real or perceived promiscuity, or lack of resistance
during rape have been regarded as weakening the prosecution in several judgments. These can be
purely attributed to the prejudice of the judges. And disabled people too have faced problems.
They have been subjected to the presumption of being incapable of testifying, despite what the
text of the Evidence Act says.
Progressive judgments of the Supreme Court over the years have considerably improved the
treatment and position of disabled women in trails. This paper will go through the developments
up to the correct period.

Research Methodology:
This research has used a combination of both descriptive and analytical method. Various sources
have been used, which include primary sources such as judgments of courts and secondary
sources such as articles, journals and books. Uniform citation has been adopted as per the
OSCOLA style.
Scope:
The territorial scope is limited within the jurisdiction of Indian Courts. Foreign sources have not
been used.

Research Questions:
1. Is a testimony of a disabled woman in a rape trial admissible?
2. What have been the changes over the years regarding admissibility of testimony of
disabled rape victims?
3. What is the current status regarding admissibility of testimonies of disabled rape victims?
Developments:
In the case of Suresh v State of Maharashtra 1, the alleged rape victim was a deaf, dumb, and
intellectually retarded (intellectually deficient) woman. The facts of the case are that her
grandfather saw her being raped in bathroom by the accused. On confronting, the accused ran
away. But then he later came to the house and beat the victim’s grandfather. He was booked for
voluntary hurt and rape by the trail court and was convicted. The accused appealed to the High
Court.
In the trial court, she was not examined as a witness. Her testimony was not taken, and the
accused was convicted mainly based on medical evidence. Her grandfather had died before the
trial started, hence there were no possible witnesses besides the victim herself. The trial court
had explicitly stated that she need not be examined owing to her disability, specifically mental
deficiency. When it was appealed to the High Court, this point was addressed. The Bombay High
Court in its judgment stated that the disability would not render the victim as being incompetent
as a witness. Section 118 of the Evidence Act was cited to back this point. The authority to
decide competency ultimately lies with the court, however, the court had not even considered her
possibility of being competent, and presumed incompetence.
Because of lapses of the prosecution and fault of the trial court in not admitting the victim's
testimony, the accused was acquitted of rape. Medical examination was ruled as inadequate
proof, as rupture of hymen alone was not sufficient to prove rape. The accused was convicted
only of voluntary hurt. This case shows the grave consequences of non-admission of a disabled
rape victim's testimony and ignoring her as agency and value in the trial. While the Court’s
contention in this case was correct regarding competency of disabled people as witness, it is very
clear that complete justice was not done in the end.
Now we turn to another judgment in the case of Dilawarsab Alisab Jakati v State of Karnataka 2.
In this case, Dilawarshab was charged with raping his minor and dumb cousin. The father of the
victim was a witness, and his testimony caused conviction by the Trail Court. In this case, the
victim's account was also considered, along with her medical report. This was appealed to the
Karnataka High Court, and the evidence admitted by the trail Court was challenged. It was
contended that the medical examination was taken more than twenty four hours of the alleged
rape. Furthermore, there were no sign of injury near the genitalia, and neither was the hymen

1
Suresh v State of Maharashtra (2003) BHC MANU 0660.
2
Dilawarsab Alisab Jakati vs State of Karnataka (2005) KHC MANU 0159.
ruptured. The Court ruled that medical reports in this case cannot be used to prove rape. It needs
to be noted that such medical examinations, such as the tearing of the hymen or symptoms of
forceful penetration are problematic, and being increasingly being considered as so in recent
judgments. Rape need not involve use of force or resistance from the victim, as mere absence of
consent is sufficient to constitute rape. Hence, using such forms of circumstantial evidence must
be done with caution and without prejudice or bias.
The second contention was regarding the victim's account. More specifically, it was about the
procedural errors in recording the victim's account. The questions presented have to be done by
signs, and have to be recorded. The answers given by signs have to be interpreted and recorded.
The signs must be recorded and can then be admitted as oral evidence. But as per the Court, this
procedure had not been followed in this case, and the signs were not recorded. The High Court
therefore ruled that the victim's account cannot be considered in this case. Her father's account is
the only reliable evidence, but it can only be used to convict the accused for an attempt to rape,
and not rape. The accused was convicted of the same.
The cases discussed above both show the ultimate acquittal or conviction of an less serious
offence as the result. Several such judgments can be found which follow a similar pattern, where
the testimony of the rape victims are ultimately dismissed due to various reasons, such as errors
of procedures, failure of the Trail Court to ensure recording of the victim’s account, as well
depending too much on medical evidences. This problems faced by disabled rape victims are
further by misogynistic prejudices of the judges. Firstly, there is a burden to be eligible, clear and
precise on the victim. A rape cannot be ascertained unless the judge is convinced of the exact
nature of the act. Expecting a traumatised victim, especially when her disability hinders ability to
communicate, to clearly and precisely narrate her trauma in the environment of a Court can lead
to miscarriage of justice. There is an expectation on the part of the victim to show resistance.
Judges have often made remarks which place blame on the victim for not resisting or raising an
alarm3

Current Status
A recent Judgment of the Supreme Court4 has greatly impacted the status of disabled women
with regard to trails of rape case. It has identified the long ignored problems and set the path
straight to further positive developments. It was penned was Justice DY Chandrachud and Justice
MR Shah. While delivering the judgment, the concept of intersectionality and how such cases
involving marginalised members of the society are to be considered are explained in detail.
In that case, the victim was a woman from scheduled castes and was also visually impaired
woman. The accused was an acquaintance of her brother, who raped her in her own house while
others where outside. Her family heard her raising alarm of distress. The accused attempted to
3
Mafijuddin Sheikh v State of West Bengal (2005) WBHC MANU 0628.
4
Patan Jamal Vali v The State Of Andhra Pradesh (2021) SC 231
escape but was apprehended. The victim was found naked and bleeding from the genitalia.
Besides rape under IPC, the accused was convicted under Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act too by the trail court and upheld by the High Court. In this
case, the conviction for rape under IPC was upheld, while conviction under Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act was set aside.
The Court observed that intersectionality is the intersection of oppressions on the grounds of
different identities. It is a theory developed in USA by African American women to highlight
how they faced oppression as black women from white people and institutions dominated by
them on account of their black identity, while also facing misogyny and oppression at home and
outside on account of being women. Their oppression is unique from that of all black people as
well as all women. Feminist movements being led largely by white middle class women and civil
rights movement being led largely by black men did not represent their interests adequately.
Here intersectional analysis plays an important role. Beyond its context of origin,
intersectionality retains much relevance and utility too. This was shown in this judgment. The
factors of gender identity, caste, sexual orientation, and class needs to be considered from an
intersectional lens. It involves analysis of law in its social and economical context.
One excerpt is significant to note: “Their claim will fail if they are not able to simplify their story
to accord with the dominant understanding of how discrimination or violence on the basis of a
given characteristic occurs.” This is relevant to disabled witnesses. The victim has to conform to
the judge's worldview and understanding. The Court noted strongly that a disabled woman's
testimony is not weak, inferior or unreliable in any way. The Court also observed that Section
3(2)(v) of the SC/ST act was to be interpreted to mean that mere knowledge of the victim
belonging to the SC/ST community is sufficient for conviction. However, this interpretation
would be valid since an amendment which was passed in 2015. Earlier, the law was that the act
needed was to be committed on the grounds of the victim belonging to SC/ST community. Since
the crime in this case took place before the amendment, the conviction under Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act was set aside. He was however
sentenced to life imprisonment for rape under relevant IPC provisions.

Conclusion:
Women have historically faced significant discrimination and problems in the judicial system,
and especially so in the case of rape cases. This is aggravated significantly when the woman is
also disabled. Earlier, judges did not respect the testimony or reliability of disabled women and
did not take them seriously. Furthermore, women's character, sexuality, and actions during and
around rape have been unjustly and illogically put to scrutiny by the judges and the defence
lawyers. However, the text of the evidence law largely not discriminatory and provides for
admission of testimony of disabled people. Recent judgments too have affirmed the validity of it,
and opined for an intersectional approach to be followed, where systemic oppression with
regards to the victim's identity is considered. While lower courts continue to be insensitive in
many cases, reforms in this regard is underway.