Evidence act amendment: Draft leaves one questionable section alone

The government has drafted an amendment to the Evidence Act, seeking to repeal only one of the two sections that allow questioning the character of a rape victim in court.

The draft proposes to do away with Section 155(4) while keeping Section 146(3).

According to Section 155(4), "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

"Explanation: A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence."

Section 146(3) allows the imposition of questions that may injure the character of the witness in order to verify their credibility.

According to it, "When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend –to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture."

The continuation of Section 146(3) of the act has disappointed and aggrieved the rights organisations, who have long been fighting a legal battle to protect rape victims from being undermined in court.

Even if Section 155(4) is repealed, Section 146(3) could still be an avenue through which the character evidence could be used to undermine rape complainants, Sharmin Akter Sheuli, a lawyer for the writ petitioners fighting for scrapping of both the sections, told The Daily Star yesterday.

She said if it is not amended, a rapist will have the scope to question the character of the victim during the cross examination in court as the victim themselves might be the main witness in the case and therefore this section needs to be amended.

Meanwhile, Deputy Attorney General Samarendranath Biswas, who placed the draft of the proposed amendment before the High Court on February 17, told this correspondent that if "Section 146(3) of the Evidence Act is repealed the scope for cross examination will shrink and ensuring justice will be hampered."

Yesterday, the HC bench of Justice Farah Mahbub and Justice SM Maniruzzaman fixed tomorrow for hearing the writ petition by Bangladesh Legal Aid and Services Trust, Ain O Salish Kendra and Nari Pakkho seeking the cancellation of both sections.