This article is written by Jitmanyu Satpati, a 3rd-year student from NLU Odhisa.

Introduction 

“The business of the court is to try the case and not the man, and a very bad man may have a very righteous cause.”

Character evidence is a very tricky issue in the law of evidence. On one hand, a court is supposed to apply the law impartially to the facts on record and arrive at a decision. On the other hand, evidence as to the general character and conduct of the accused is often important in explaining the conduct of the accused and also in deciding the outcome of a case when the case could go either way on the evidence alone.

Over the course of time, some general principles have evolved with respect to the admissibility and evidentiary value of character evidence. The most important of these principles is that character evidence is weak evidence and cannot stand up to positive evidence as to the commission of a crime. Beyond that, the question of admissibility of character evidence is still murky and is characterized by some broad general principles with many contextualized exceptions. Generally speaking, the good character of the accused is relevant and admissible as evidence and can be used to give the benefit of the doubt to the accused when, on the evidence alone, the case could go either way. However, evidence as to the bad character of the accused is generally not admissible as evidence except when it is in rebuttal to evidence of good character or when the character of the accused is itself a fact in issue. In rape cases, the situation is reversed and the question becomes about the victim/prosecutrix and the relevancy and admissibility of evidence of her bad or immoral character.

Relevancy of Good Character 

Section 53 of the Indian Evidence Act, 1872 (IEA) provides that the fact that the person accused is of a good character is relevant in a criminal trial. The principle behind this section is that the proving of the good character of the accused provides a presumption against the commission of a crime. The presumption arises from the improbability that, as a general matter arrived at through common experience and observations, a man who has uniformly followed an honest and upright course of conduct will suddenly turn to crime. It is of course entirely possible that such a person may have committed a crime in the throes of a sudden passion or temptation, but such things are exceptions. The value of a presumption of good character naturally varies depending on the circumstances of each case.[1] Moreover, character evidence is weak evidence and it cannot outweigh positive evidence in regard to the guilt of a person.[2]

In the case of Bhagwan Swaroop[3], the appellant was convicted for a criminal breach of trust under Section 409 of the Indian Penal Code, and for conspiracy under section 120-B of the IPC. The defence examined two eminent and respected men of India, Pandit Jawaharlal Nehru and Sri Sreeprakasha, in order to show the good character of the appellant. Subba Rao, J speaking for the bench, stated that the testimony of the eminent persons as regards to the character of the appellant established that, in their opinion, the appellant was a man of integrity, sincerity and simplicity. He further stated that under Section 53 and the Explanation to Section 55 of the IEA, general evidence of good character and disposition was relevant in a criminal trial and that evidence could be given of both good character as well as general disposition. He further held that was a difference between reputation and disposition; disposition means the inherent qualities of a person whereas reputation means the general opinion prevailing about the person among the public.

In other words, a man may be reputed to have a good character but he may, in fact, have a bad disposition. The value of a witness’s evidence as to the disposition of the accused will depend on the witness’s perspicacity as well as the opportunities the witness had to observe the accused. This has to be balanced against the cleverness of the accused to hide his real traits as well as the opportunity the witness had to observe specific traits of the accused.

However, Subba Rao, J stressed that character evidence, on the whole, was very weak evidence. It could be used to tilt the case in favour of the accused in doubtful cases or to explain the reaction of the accused in certain situations. However it had to give way to positive evidence and once positive evidence with regards to the guilt of the accused had been tendered, character evidence could not be used to turn the scale in favour of the accused.

Irrelevancy of Bad Character 

General Rule

Section 54 of the IEA provides that the fact that the accused has a bad character is irrelevant unless evidence has been given that he has a good character, in which case it becomes relevant. Evidence of bad character cannot be admitted under this Section for raising a general inference or presumption that the accused is predisposed or likely to have committed the crime that he is charged with. Any evidence of this kind is irrelevant and cannot be raised by either party i.e. the prosecution or the defence.[4] The Supreme Court has observed that accused is entitled to a presumption of innocence and evidence about his bad character is not relevant unless he adduces some evidence of his good character, in which case contrary evidence of his bad character may be advanced by way of rebuttal.[5] In the same case, the Court excluded evidence which described the accused as a law-breaker, holding that such evidence amounted to evidence about the bad character of the accused.[6]

The guilt of the accused has to be established by proving the facts alleged by the prosecution and not by casting aspersions on his character, such evidence only creates prejudice and does not lead to any determination or substantiation of the guilt of the accused.[7] Moreover, evidence of bad character cannot be used to defeat a legitimate defence available to the accused. In the case of State of Orissa v. Nirupama Panda[8], the accused had caused the death of a person who had tried to rape her. The prosecution attempted to introduce evidence of her bad character in order to strike down the plea of self-defence taken by the accused. The Orissa High Court held that the accused had every right to save her honor and that such a right extended to causing death in self-defence, and that evidence of the prior bad character of the accused was wholly immaterial and of no consequence.

Halsbury has observed:

It is not, in general, permissible in a criminal case for the prosecution to adduce evidence that the accused either bears a bad general reputation in the community or has a natural disposition to commit crimes of the class charged. The accused, nevertheless, is permitted to adduce or give evidence of his good reputation; and if he thus puts his character into the issue, the prosecution may attack it.[9]

In a criminal trial to prove that the accused committed the crime with which he is charged, the prosecution cannot adduce evidence that the accused: (a) was regarded as having a bad reputation in the community; or (b) had a disposition to commit crimes of the class or kind of which he was charged; or (c) had committed acts of a similar kind or description as those with which he was charged in the past and thus could be said to bear a disposition towards the same or show a propensity towards the same.[10]

When the bad character of the accused is not in issue, even references as to the bad character of the accused are not allowed. In the cases of Nimoo Pal Majumdar v. State[11] and Babulal v. State[12], the accused had been constantly referred to as goondas or thugs by the prosecution. In the latter case, the Court had pointedly drawn the attention of the jury at one place to the fact that the accused was a goonda. The Calcutta High Court reiterated the principle that in a criminal proceeding the fact that the accused has a bad character is immaterial and irrelevant unless evidence has been given that he has a good character, and even then only to rebut such evidence of good character. The Court observed that constant references to the accused as thugs was bound to create prejudice against them and that it was against all rules of fairness and evidence to allow evidence which had no probative value and high prejudicial value.

One of the most important cases with regards to character evidence was the case of Makin v. Attorney General of New South Wales[13]. In this case, a couple had been tried and held guilty of the murder of an infant child whose body had been recovered from their garden where it had been buried. There was no evidence that either the husband or the wife had killed the child other than the fact that the body had been buried in their garden. The prosecution had tendered evidence before the trial court that bodies of other children had also been found and that certain other people had entrusted their children to the couple and the children had never been heard of again. The Privy Council held that:

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible, if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

The principle laid down in Makin[14] was approved by the Supreme Court in the case of Sardul Singh v. State of Bombay[15] where the Court observed “It is well settled that the evidence in rebuttal of a very likely and probable defence on the question of intention can be let in by the prosecution as part of its case. To anticipate a likely defence in such a case, and to give rebuttal of such defence, is in substance nothing more than the letting in of the evidence by the prosecution of the requisite criminal intent beyond a reasonable doubt.”

It is important to note that Section 54 does not override other sections of the IEA with regards to the admissibility and relevancy of evidence. Thus evidence which could or which tends to show the bad character of the accused can still be admissible if it is otherwise relevant under the IEA. In the case of Mangal Singh v State of Madhya Pradesh[16], an objection was taken that evidence of bad character had been allowed to the prejudice of the accused. The Supreme Court held that the evidence was admissible because although it disclosed certain unpleasant things about the accused in the past, the lower courts had examined it as proof of motive of the crime and not as an imputation against the character of the accused and the probative value of the same overweighed the prejudicial value against the accused. In other words, if the evidence is otherwise relevant, it is not rendered irrelevant merely because it shows bad character of the accused or the commission of an offence which is separate and distinct from the offence with which the accused is charged and for which he is undergoing a trial.

Character as a Fact in Issue 

The explanation I to Section 54 provides that evidence of bad character is admissible where the bad character of the accused is itself a fact in issue. However, such evidence of the bad character of the accused must be confined to the particular traits or aspects of the accused’s character which are in issue. Thus, for instance, it is useless to advance evidence of an accused’s honesty on a charge of cruelty, or of his agreeable disposition on a charge of theft. The accused’s reputation for honesty would be relevant on a charge of theft and a merciful disposition on a charge of cruelty.[17]

There are very few cases where the character of the accused is directly in issue. Some of the offences where the character of the accused can become a fact in issue are binding over proceedings for keeping good behaviour under Sections 109 & 110 of the Code of Criminal Procedure, 1973 (CrPC) and in proceedings for the offence of dacoity under Section 400 & 401 of the IPC. In case of binding over proceedings under Sections 109 & 110 of the CrPC, it is necessary to prove that the accused is a habitual offender under Section 116 of the CrPC has to be proved. The general character of the accused under Section 110 becomes a fact in issue during such proceedings and can be allowed.[18]  

In a charge for dacoity under Section 400 IPC, it must be established that the accused belonged in a gang which was associated for the purpose of habitually conducting dacoity. Hence ‘habit’ is a fact in issue to be proved for establishing the ingredients of the offence. Some courts have held that since habit is equivalent to character, it could reasonably be said that the character of the accused was itself a fact in issue for proving a charge under Section 400 IPC. Thus Explanations 1 and 2 to Section 54 are attracted in cases of dacoity and previous convictions, not only in respect of dacoities but also in respect of other offences such as theft, burglary etc. may be admissible.[19]

However, there is no judicial unanimity on this point. The Gujarat High Court refused to accept the contention that the character of the accused is a fact in issue in proceedings under Section 400 & 401 IPC.[20] The Court reasoned that for proceedings under Sections 400 & 401 IPC general bad character of the accused was not a fact in issue and it was only a particular trait or facet of the character viz. association for the purpose of committing crimes like robbery or theft which was a fact in issue. Therefore evidence could be adduced only about the particular trait of bad character that was relevant and not about the general bad character of the accused as a whole since the general bad character of the accused was not a fact in issue. Similarly, in the case of Bonai v Emperor[21] Evidence of a prior conviction was admitted in proceedings under Section 401 IPC as evidence of habit and not as evidence of the general bad character of the accused, which was held not to be a fact in issue.

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The Patna High Court has further held that character is not a fact in issue in cases of defamation under Section 499 & 500 of the IPC. The Court held that reputation did not need to be proved in a proceeding under Section 500 IPC and therefore the accused was not entitled to question the complainant with a view to eliciting evidence to show that the reputation of the complainant was already of such a type that the words of the accused could not have possibly lowered it further.[22] 

Previous Convictions

Explanation 2 to Section 54 provides that a previous conviction is relevant as evidence of bad character. However, this does not mean that evidence of a previous conviction can be admitted against the accused in all circumstances. Evidence of a previous conviction can be admitted against an accused only in some specified circumstances such as:

(a) When the accused is liable to enhanced punishment under Section 75 of the IPC on account of the previous conviction, or unless evidence of good character has been adduced in favour of the accused, in which case evidence of a previous conviction is admissible in rebuttal as evidence of bad character.[23]

(b) Evidence of a previous conviction may also be relevant under Section 8 of IEA as showing motive or under Explanation 2 to Section 14 of the IEA where the existence of any state of mind, or body, or of bodily feeling, is in issue or is relevant.[24]

Evidence of Bad Character in Rape Cases 

Evidence of the bad character of the prosecutrix is one of the most contentious issues in cases of rape or sexual assault. Section 155(4) of the IEA provides that when a man is prosecuted for rape or an attempt to ravish, he may impeach the credibility of the prosecutrix by showing that she was of generally immoral character. Moreover, Section 164(3) allows the counsel for the accused to shake the credit of a witness by injuring his character. However, the accused’s own bad character cannot be called into question by virtue of Section 54 of the IEA while he can adduce evidence of his good character under Section 53 of the IEA. This puts the accused in a very favorable position vis a vis the prosecutrix.

The sexual history of the victim is invariably dug out or insinuated in cases of rape. While a previous relationship of the victim with the accused could be relevant in determining the question of consent, the same cannot be said about any relationships that the victim/prosecutrix may have had with other men. It is wrong and misogynistic to believe that simply because a woman has had multiple partners or has been in multiple relationships, she is of easy virtue and thus her consent can be assumed.

The victim/prosecutrix’s past sexual history is also often used to cast doubts on their testimony and cast aspersions on their honesty.[25] The statements made by the victim/prosecutrix are doubted and they are effectively shamed for having a relationship outside marriage. Such provisions also perpetuate gender-based double standards; a man’s prior sexual history or immoral character is assumed to have no effect on his veracity whereas a woman’s past sexual history calls her entire testimony into doubt.[26] Section 155(4) thus creates a false presumption that women of immoral character may have consented to the sexual act in a particular case. This provision may also be invoked in cases of statutory rape where the victim is below the age of consent.

The Government of India has taken steps towards fixing this problem in our rape laws through the Criminal Laws (Amendment) Act, 2018. The Government implemented the recommendations of the 172^nd Report of the Law Commission[27] by deleting Section 155(4) of the IEA and adding a new section 53-A which provided that in cases of sexual offences where the consent of the victim was in issue, evidence of the character of the victim as to her previous sexual experience would not be relevant on the issue of such consent or quality of consent. Moreover, Section 146(3) of the IEA was also amended and a proviso was added which made it impermissible to put questions to the prosecutrix as to her general moral character during cross-examination.

The changes in the IEA with regards to the admissibility of character evidence in rape cases as well as the cross-examination of rape victims have brought India’s rape laws in line with global standards. They have given protection to the victim/prosecutrix so that they do not have to face a gruelling and humiliating cross-examination at the hands of defence counsels. This has given the victim/prosecutrix a shield against harassment in the courtroom and helped remove some of the gendered stereotypes present in the IEA.

Conclusion

Character evidence in criminal trials can broadly be divided into two categories: evidence as to the good character of the accused and evidence as to the bad character of the accused. The jurisprudence related to the first category of character evidence is settled to a large extent. Evidence as to the good character of the accused is relevant and can be entered into evidence. At the same time, the only evidence as to the general character of the accused can be tendered and not the opinion of the witness as to the accused’s disposition. Moreover, character evidence is weak evidence and cannot stand up to positive evidence of the commission of a crime. However, in cases where the case could go either way on the basis of the evidence tendered, character evidence can be used to give the accused the benefit of the doubt.

The jurisprudence regarding evidence as to the bad character of the accused is slightly murkier. The general principle is that evidence as to the bad character of the accused is not admissible as evidence. This is subject to three exceptions however; such evidence is admissible when it is in rebuttal to evidence of good character tendered on behalf of the accused, or when the character of the accused is itself a fact in issue or when the evidence is that of a previous conviction which is relevant as evidence of the bad character of the accused. Moreover, the prosecution can introduce into evidence material which tends to show the bad character of the accused if such material is otherwise relevant under the Indian Evidence Act (as evidence of motive or of mental state) or if it is tendered in order to strike down a possible defence which the accused is likely to raise. The guiding principle in all such cases is a balancing act between the probative value of the evidence and its prejudicial effect against the accused.

Character evidence in rape cases is different from other types of criminal proceedings as the character evidence which is sought to be introduced is evidence about the bad or immoral character of the victim/prosecutrix and no evidence as to the bad character of the accused. Certain provisions in the Indian Evidence Act allowed the accused to raise the issue of the bad character and previous sexual history of the victim/prosecutrix in order to impeach the credibility of her testimony. This put the accused in a stronger position with respect to the prosecutrix as he could impeach her credibility by introducing evidence as to her bad character while he was protected from the same by virtue of Section 54 of the Indian Evidence Act. The Criminal Laws (Amendment) Act, 2018 removed these gendered provisions from the Indian Evidence Act and helped achieve parity between the accused and the victim/prosecutrix. 

References

[1]Arthur Best, Wigmore on Evidence, 123 (4^th edn., 2019).

[2]Bhagwan Swarup v. State of Maharashtra,AIR 1965 SC 682.

[3]Ibid.

[4]See Emperor v. Gangaram,(1920) Bom LR 1274.

[5]See Ramlakhan Singh v. State of UP, AIR 1977 SC 1936.

[6]Ibid.

[7]See Amrit Lal Hazra v. Emperor, AIR 1916 Cal 188.

[8]1989 Cri LJ 621 (Ori).

[9]Halsbury’s Laws of England Vol. 17, 38 (Lord Hailsham, 4^th edn., 1989). 

[10]Phipson on Evidence, 238 (Hodge M Malek, 19^th edn., 2019).

[11]AIR 1955 Cal 559.

[12]AIR 1959 Cal 693.

[13][1897] AC 57, 64 (1893, Privy Council).

[14]Ibid.

[15]AIR 1957 SC 747, 752.

[16]AIR 1957 SC 199.

[17]Supra 10, at 239.

[18]See In re: Perna Maila Rai, AIR 1938 Mad 591. 

[19]See Bhima Shaw v. State, AIR 1956 Ori 177.

[20]See Bai Chaturi v. State, AIR 1960 Guj 5.

[21]1911 Cri LJ 97 (Cal).

[22]See Devbrata Shastry v. Krishna Ballabh,AIR 1954 Pat 84.

[23]See Emperor v. Duming, (1903) 5 Bom LR 1034.

[24]See Emperor v. Allomiya, (1903) 5 Bom LR 805.

[25]See 84^th Law Commission of India Report, Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidence, (1980) available at http://lawcommissionofindia.nic.in/reports/84rpt.pdf, last seen on 26/09/2019.    

[26]Ibid.

[27]See 172^nd Law Commission of India Report, Review of Rape Laws, (2000) available at http://lawcommissionofindia.nic.in/reports/172rpt.pdf, last seen on 26/09/2019.