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Character When Relevant

Character evidence plays a pivotal role both in civil and criminal law. The conduct and character of a man is used to determine in guilt since centuries. However due to evolution in law and judiciary evidentiary value and reliance on character has decreased, the general principle being it is difficult to establish poor character, further judging by character would mean deviation from facts of the case to an ambiguous and subjective matter. No conviction can be based on the character of a person as it would imply judging the past action or personal life of a person.

The term ‘character’ under Section 55 definition breaks down the term into two things which is reputation and disposition, where the former means the opinion that people, in general and the latter means the habitual behavior of a particular person. Both English and Indian Law does not provide an accurate definition of the term.

Character is “a combination of peculiar qualities impressed by nature or by the habit of the person, which distinguish him from others”. In respect of the character of a party, two distinctions must be drawn, namely between the cases when the character is in issue and is not in issue and when the cause is civil or criminal. To what extent is the character, general reputation of a person relevant in civil or criminal proceedings has been made clear by (Section 52-55).

In Civil Cases Character to Prove Conduct Imputed, Irrelevant

Section 52 of the Indian Evidence Act, 1872 speaks about, “In civil cases character to prove conduct imputed irrelevant”. This section says that in respect to the character of a person in a suit, it is relevant to establish that the character of the person is relevant to the issue in the case. This section is applicable for civil cases. It excludes evidence of character from being given only for the purpose of rendering probably or improbable any conduct imputed to the party.

For example: If a person is charged with negligent driving he cannot give evidence of the fact that his character and conduct has been such that he could not have been guilty of negligence.

The reason is that the court has to try the case on the basis of its facts for the purpose of determining whether the defendant should be liable or not. The court has not to try the character of the parties and the evidence of character will not only prolong the proceedings but will also unnecessarily prejudice the mind of the judge one way or other. Further, in civil cases, the previous convictions of the defendant are irrelevant.

Section 52 also lays down that a fact, which is otherwise relevant, cannot be excluded from evidence only because it incidentally exposes or throws light upon a party’s character. This is an exception to the general principle laid in Section 52. The court may form its own conclusions as to the character of a party’ to a suit as exhibited by the relevant facts proved in the case, and draw an inference that he might probably have been guilty of the conduct imputed to him.

Evidence can be given of a party’s character when his character is itself a fact in issue. Where, for example, an action is brought for divorce on the ground of cruelty; the cruel character of defendant, being a fact in issue, the plaintiff can lead evidence of it. The character of a female chastity has been received in evidence in action for breach of promise for marriage.

In Criminal Cases Previous Good Character Relevant

Section 53 of the Indian Evidence Act, 1872 speaks about, “In criminal cases previous good character relevant”. This section is applicable in criminal cases, wherein the character of the person accused is relevant. The simple principle is that when a man has lived an honest life, it is improbable that he will depart from it and do an act inconsistent from it.

The principle upon which good character may be proved is that it affords a presumption against the commission of crime. This presumption arises from the improbability. However, character evidence is a very weak form of evidence and for it to have persuasive value, corroboration is imperative.

Evidence of Character or Previous sexual experience not relevant

Section 53-A of the Indian Evidence Act, 1872 speaks about, “Evidence of character or previous sexual experience not relevant in certain cases”. This section was brought in after 2013 amendments. Due to the growing sexual crime against women and the repetition of the same, it was imperative to draft a section pertaining to the evidence of a character of pervious sexual experiences which may or may not be relevant in certain cases. This section works to aid the victim of rape.

This section applies to offences of India Penal Code mentioned below and even an attempt to commit such offences will also attract the application of this section.

Sections 354 Assault or criminal force to woman with intent to outrage her modesty
Section 354-A Sexual harassment and punishment for sexual harassment
Section 354-B Assault or use of criminal force to woman with intent to disrobe
Section 354-C Voyeurism
Section 354-D Stalking
Section 376 Rape
Section 376-A Intercourse by a man with his wife during separation
Section 376-B Intercourse by public servant with woman in his custody
Section 376-C Intercourse by superintendent of jail, remand home, etc.
Section 376-D Gang Rape
Section 376-E Punishment for repeat offenders

This section makes the character of the victim or her past sexual experiences irrelevant and inadmissible in the Court.

Previous Bad Character Not Relevant, Except in Reply

Section 54 of the Indian Evidence Act, 1872 speaks about, “Previous bad character not relevant, except in reply”. This section states that the poor character of the accused is irrelevant in a criminal proceeding till the point the defendant attempts to establish his good character. In other words, the prosecution cannot lead evidence of the bad character of accused as part of its original case. They can produce evidence of bad character only in reply to the accused showing his good character.

Criminal cases also admit of certain exceptions. There are certain cases in which evidence of a prisoner’s bad character can be given:

  1. To rebut prior evidence of good character (Section 54).
  2. The character is itself a fact in issue (Explanation 1 to Section 54).
    For example, in a prosecution for rape, the bad character of prosecution (raped woman) may be a fact in issue for it may afford a defence to the accused. Under Section 110, Cr.P.C., a person is to be bound down if he is by habit a robber, a house-breaker, etc.
  3. A previous conviction is relevant as evidence of bad character in criminal cases (Explanation 2 to Section 54). Under Section 71, IPC if it is proved that a person is a previous convict he shall be sentenced to much longer term of imprisonment than would ordinarily have been awarded to him.

Character as Affecting Damages

Section 55 of the Indian Evidence Act, 1872 speaks about, “Character as affecting damages”. This section states that the character evidence provided in civil cases is such that can affect the amount of damages that are to be received is relevant and admissible in the Court of Law. This section limits the definition of character to reputation and disposition, however evidence provided under Section 54 may have general reputation and general disposition. Reputation means what is thought of a person by other or general opinion of others, whereas disposition means texture of the mind. Disposition implies one’s own individual opinion of another person’s character.

It may be noted that the evidence of those, who know the man and his reputation is admissible. Evidence of those who do not know the man but have heard of the reputation (hearsay evidence) is not admissible. In civil cases, good character may not be proved in aggravation of damages however, bad character is admissible in mitigation of damages provided that it is justifiable.

In cases of defamation general bad reputation of plaintiff may be proved and in cases of breach of promise of marriage general character for immorality is relevant. In civil cases, damages for seduction or rape, the evidence pertaining to the character of the accused may be allowed if it can affect the damages to be received.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
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