Author: Ishani Shekhar


Introduction – Character Evidence

Akin to most common law countries, Indian law greatly limits the ability to connect the past and the present of an accused in order to prove the commission of an offence. The relevancy of ‘character evidence’ in criminal cases has been dealt under Sections 53, 53A and 54 of the Indian Evidence Act (the Act). S. 53 makes previous ‘good character’ of the accused in a case, relevant whereas S. 54 makes previous ‘bad character’ of the accused in a case, not relevant, barring certain exceptions. The exceptions have been provided in the Act itself. Bad character becomes relevant in two cases. First, when evidence of good character has been adduced by the accused, the prosecution may attack it in rebuttal. Second, bad character is relevant in cases where the bad character of a person is itself a fact in issue. Additionally, S. 53A was inserted into the Act by the Criminal Law Amendment Act, 2013, which was based on the recommendation of Justice JS Verma Committee report in the aftermath of the Nirbhaya Gangrape incident. This Section made evidence of character or previous sexual experience not relevant in certain cases which have been listed in the Act and refer to offences in the Indian Penal Code (IPC).

Analysis of Section 53

Section 53 reads as follows:

“In criminal cases, previous good character relevant. — In criminal proceedings, the fact that the person accused is of a good character, is relevant”.

The rationale behind this Section is the presumption that operates against the commission of the offence by the accused. The defence can use this Section to produce evidence of the previous good character of the accused to show that the accused is a person of such honest and upright course of conduct, that a departure from such a nature is highly improbable. This, however, is subject to the right of the prosecution to call evidence in rebuttal. The Supreme Court in, Sardar Sardul Singh Caveeshar vs State Of Maharashtra, unlike England, held the evidence of both general reputation and general disposition are relevant in criminal proceedings in India. The practice in England is different in the sense that evidence of the accused’s disposition (which includes his personal traits) is inadmissible. This was established in R v Rowton, wherein it was held that the reputation of the person is an important matter. The character witness called on behalf of the accused can give evidence of the general reputation of the accused for good character, but not of his individual opinion as to the accused’s disposition.

The Supreme Court in the Sardar Shardul Singh case also explained the distinction between the two terms. A general reputation of a person is how the community perceives him/her whereas a general disposition of a person comprises of his/her inherent traits. These are covert traits intrinsic to a person and evidence of the same can’t be easily proved. A witness as to the general disposition of a person has to be scrutinised closely. The value of evidence as regards disposition of a person depends not only upon the witnesses’ perspicacity but also on their opportunities to observe a person, as well as a person’s cleverness to hide his real traits. The Court in this case answered the question of what is the evidentiary value of the character of an accused in a criminal case and held that the character evidence is a weak evidence and can’t outweigh a positive evidence pointing to the guilt of the accused. Good character is not a defence, but is useful to the extent of establishing a lesser likelihood of the accused having committed the offence he/she is charged with.

Despite being a weak evidence, ‘character evidence’ plays an insightful role in doubtful cases. The Supreme Court, in Habeeb Mohammad v. State of Hyderabad, held that character of an accused in always relevant in a criminal case. In a criminal proceeding, the accused is entitled to show that he is a person of good character. A man’s character helps in explaining his conduct and in judging his innocence or criminality. Acts of an accused would be suspicious or free from suspicion when we come to know the character of the person by whom they are done. In doubtful cases, evidence of good character helps to tilt the scale in favour of the accused. This concurs with the presumption of innocence; the court starts a trial with the presumption of innocence of the accused in mind and not his guilt. In doubtful cases, evidence as to the state of the mind of the accused also becomes relevant.

Analysis of Section 53A

Section 53A reads as follows:

“In a prosecution for an offence under sections 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D or 376E  of the Indian Penal Code (45 of 1860) 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 such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent”.

As stated earlier, this section was inserted in the aftermath of the Nirbhaya Gangrape, with an aim to prevent character assassination of the victim in the courts. In this particular case, the defence tried to  portray the character of the victim in a bad light to tilt the case in favour of the accused persons. This is no longer permissible as the character or previous sexual experience of the victim is not relevant in the offences prescribed by this section.  By virtue of this section, the defence has been debarred from leading any evidence or asking such questions in cross-examination as may be suggestive of the victim’s past sexual experience with any other person. This is a progressive provision and is aimed at victim protection in case of offences as mentioned in S. 53A.

Analysis of section 54

Section 54 reads as follows:

“In criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes 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.”

According to this section, evidence as to bad character of the accused cannot be admitted in a court of law. The reasoning behind this is that such evidence might cause prejudice in the minds of judges which isn’t desirable keeping in mind the need for a fair trial.  The prosecution is expected to prove the guilt of the accused beyond reasonable doubt using the requisite evidence, but evidence of bad character of the accused is not one of them. A bias created in the mind of the Court if such bad character is established tilts the case against the accused and thereby vitiates the requirement of a fair trial. For instance, the Supreme Court, in Ram Lakhan v. UP, held that a description of the accused as a law-breaker amounts to evidence of character and thereby excluded it.

The latter part of the provision warrants attention which prescribes that evidence of bad character of the accused becomes relevant if evidence has been given that he has a good character. In that case, the prosecution can call for evidence in rebuttal. If the accused puts his character in issue, the prosecution may attack it. This is allowed so that the court is not misled and judges are presented with neutral evidence.

The Bombay High Court, in Lakshmandas v State, held that S. 54 does not have an overriding effect and accordingly it doesn’t control other sections. For instance, if the evidence of bad character is relevant under S. 14 or S. 15, merely because it might show previous misconduct of the accused, it is not inadmissible because of S. 54.

The exclusionary rule and bad character

The exclusionary rule is a principle of law that evolved in the United States (a common law country).  This rule is grounded in the Fourth Amendment in the Bill of Rights, and is intended to protect citizens from illegal searches and seizures. It essentially prevents evidence collected in violation of the defendant’s constitutional rights from being admissible in a court of law. Exclusion of evidence as a reaction to violations of rules concerning the acquisition of evidence.

The principal reason for the existence of the exclusionary rule is predicated on the belief that the admission of bad character evidence will have a disproportionately prejudicial effect on the judges. This prejudice may have a fundamental impact on the outcome of a criminal trial. Prejudice in the minds of judges may also affect the presumption of innocence which is one of the basic tenets of the Indian criminal justice system.

Conclusion

The written law in India makes it copiously clear that evidence of bad character of the accused is irrelevant. Further, even evidence of good character is relevant but isn’t considered to be strong evidence. At the same time, it provides certain exceptions to this rule as have been discussed above. If an accused adduces evidence of good character, a right is bestowed on the prosecution to challenge it accordingly. The exclusionary rule in light of character evidence is not absolute and character evidence does continue to play a role. This becomes glaring when seen in practice. The bar on producing character evidence has been put at the trial stage and not during the investigative stage. Investigative agencies use their discretion based on the notions of bad character and they make arrests accordingly. As a result, persons from poor or minority groups are far more likely to be targeted by the police as suspects. A change in the positive direction would be stricter checks on enforcement of law by police by arrests. This necessitates a reform in the process of pre-trial custody.


About the Author: Ishani is 2019-24  student at Gujarat National Law University, Gandhinagar.


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