Case Note & Summary
The petitioner, Satish Dagadu Shelke, is an accused in Sessions Case No.78 of 2002 pending before the IIIrd Additional District Sessions Judge, Baramati, for an offence punishable under Section 376 of the Indian Penal Code (IPC). During the cross-examination of the prosecutrix, the defence moved an application (Exhibit 23) seeking permission to ask her about her friendship and relationship with accused No.2, who is also facing trial. The petitioner argued that the questions were specific and would not amount to general character assassination as prohibited by the proviso to Section 146 of the Indian Evidence Act, 1872. The Trial Court dismissed the application, holding that even if a woman is a prostitute, she can be raped, and that it is not open to the defence to extract admission regarding her past illicit relations. The High Court, in a writ petition, examined the scope of the proviso to Section 146 of the Evidence Act. The Court noted that the proviso only prohibits questions relating to the general immoral character of the prosecutrix, but does not bar questions about specific instances of sexual behaviour with the accused or co-accused, which may be relevant to the issue of consent. The Court held that the questions sought to be put were specific and related to the prosecutrix's relationship with accused No.2, and therefore were not barred. The High Court allowed the petition, set aside the Trial Court's order, and directed that the defence be permitted to cross-examine the prosecutrix on the specific relationship with accused No.2, subject to the Trial Court's satisfaction that the questions are not indecent or scandalous.
Headnote
A) Criminal Law - Rape Trial - Cross-Examination of Prosecutrix - Section 376 Indian Penal Code, 1860 read with Section 146 Indian Evidence Act, 1872 - The defence sought to ask the prosecutrix about her friendship and relationship with accused No.2 during cross-examination. The Trial Court dismissed the application holding that such questions would amount to character assassination. The High Court allowed the petition, holding that the questions were specific and related to the prosecutrix's relationship with a co-accused, not general character assassination, and thus not barred by the proviso to Section 146 of the Evidence Act. (Paras 4-6)
Issue of Consideration
Whether the defence can be permitted to cross-examine the prosecutrix in a rape trial regarding her friendship and relationship with accused No.2, in light of the proviso to Section 146 of the Indian Evidence Act, 1872.
Final Decision
The High Court allowed the writ petition, set aside the impugned order dated 3rd December 2005 passed by the IIIrd Additional District Sessions Judge, Baramati, and directed that the defence be permitted to cross-examine the prosecutrix regarding her friendship and relationship with accused No.2, subject to the Trial Court's satisfaction that the questions are not indecent or scandalous.
Law Points
- Section 376 IPC
- Section 146 Evidence Act 1872
- proviso to Section 146
- cross-examination of prosecutrix
- past sexual history
- character assassination
- specific relationship questions
- consent defense
