Trial Judge Can't Use Leading Questions U/S 165 Evidence Act To 'Repair' Weaknesses In Rape Case: Karnataka High Court Acquits Two

While acquitting two rape-accused serving a 25-year sentence, the Karnataka High Court has underscored that the discretionary powers at the disposal of trial courts under Section 165 of the Indian Evidence Act [Section 168 in Bharatiya Sakshya Adhiniyam, 2023] is not a shortcut to bolster the prosecution case or rectify evidence during cross examination.

The single judge bench of Justice G.Basavaraja noted that a judge has the power to put forward questions towards witnesses under Section 165 to 'discover the truth'. However, such discretionary power comes with a caveat against its utilisation for remedying material contradictions in witness statements. The court opined that such caution is necessary especially in Section 376[Rape cases] where the statement and evidence of the prosecutrix could be extra sensitive.

“…although a Judge may legally ask leading questions to a rape victim under Section 165, such power must be exercised only for clarification and to obtain proper proof of relevant facts. The Judge cannot suggest answers, introduce material facts not already spoken to by the witness, or supply essential ingredients of the offence-such as penetration-if the witness herself has not deposed to them. Nor can the Judge neutralize contradictions brought out in cross-examination or repair weaknesses in the prosecution case…”, the judge noted.

It relied on State of Rajasthan v. ANI (1997) to emphasise the prerequisites for an unbiased trial.

Section 165 of the Indian Evidence Act, 1872 allows the Judge to put questions to any witness, in any form, at any stage of the proceedings, in order to discover or obtain proper proof of relevant facts, including leading questions, notwithstanding the restrictions contained in Sections 141 to 143 of the Act.

A careful balance between 'sensitivity' and 'neutrality' must be maintained by trial court judges in rape trials, the court held, adding that the trial courts should not abandon their impartial positions or assume the position of a prosecuting agency while also ensuring that the dignity of the prosecutrix is preserved while recording her statement.

“…In the present case, the Trial court has put leading question as to the directly commission of alleged offences by the accused persons which has prompted the victim to say affirmatively, however when the same question was putforth the victim has answered that the accused have attempted to commit rape, which is against to the jurisprudence of role of judges during trial of sexual assault cases”, the court further observed.

In the present case however, it noted that the trial court had unnecessarily interfered at the evidence recording stage instead of merely clarifying the ambiguities in deposition.

The accused were alleged to have trespassed into the house of a 50-60 year old woman in June 2021, bolting the doors, and committing forcible sexual intercourse under the influence of alcohol. They were also accused of attempting to strangulate and kill her. The trial court, while convicting them under Section 376D of IPC, exonerated them from the charges under Section 307 of IPC.

The High Court also referred to the prosecutrix stating that she had not seen the accused prior, and that the faces of the accused were not visible to her during the alleged commission of crime in her cross examination, quite contrary to her Section 164 CrPC statement and deposition during chief examination, which strikes at the core of identification of accused.

The sole testimony of the victim, though sufficient for conviction all by itself if impeccable in criminal trials, does not instill confidence in the present case, the court noted. It thus allowed the appeal and set aside the conviction and sentence of the accused.

Case Title: Mohan Naik & Anr. v. The State of Karnataka

Case No: Criminal Appeal No. 824 of 2023

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