Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Absence of Consent in Certain Prosecutions for Rape [Section 120]

1. IntroductionIn prosecutions for rape, the question of consent assumes central importance. Recognising the inherent difficulty faced by victims in proving lack of consent, the law provides a statutory presumption in favour of the prosecutrix in certain cases. Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 incorporates this protective presumption by shifting the burden of proof on the accused once specific foundational facts are established.

2. Statutory Provision
Section 120 provides that:
In a prosecution for rape under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023, where:

1. Sexual intercourse by the accused is proved, and
2. The question before the Court is whether such intercourse was without the consent of the woman, and
3. The woman states in her evidence before the Court that she did not consent,

— the Court shall presume that she did not consent.
Explanation:
The term “sexual intercourse” shall have the same meaning as assigned under Section 63 of the Bharatiya Nyaya Sanhita, 2023.

3. Presumption as to Absence of Consent
For the application of Section 120, the following three essential conditions must be satisfied:

• Proof of sexual intercourse between the accused and the prosecutrix;
• Existence of a dispute regarding consent; and
• A categorical statement by the prosecutrix before the Court that she did not consent.

Once these conditions are fulfilled, the law mandates the Court to presume absence of consent, and the burden shifts to the accused to rebut this presumption.

This provision emerged as a corrective response to the controversial decision in Tukaram v. State of Maharashtra (Mathura case), where the absence of physical resistance was wrongly equated with consent. Public outrage following the judgment led to legislative reform, recognising that consent cannot be inferred merely from silence or submission.

In cases of gang rape, the issue of consent is legally irrelevant, and the sole and uncorroborated testimony of the prosecutrix, if reliable, can form the basis of conviction.
The Supreme Court has repeatedly emphasised that rape is not merely a sexual offence but a grave violation of a woman’s bodily integrity, dignity, and privacy.

In Puran Chand v. State of Himachal Pradesh, the Court observed that Section 120 does not require blind acceptance of the prosecutrix’s version. However, where her testimony is supported by surrounding circumstances—such as an attempt to commit suicide—it lends greater credibility to her claim of absence of consent.

4. No Presumption in Cases of False or Consensual RelationshipsThe presumption under Section 120 is not automatic in every case involving sexual relations. Courts have consistently held that false promises or prolonged consensual relationships do not, by themselves, attract the presumption of rape.

In Naim Ahamed v. State (NCT of Delhi), the Court held that:

• Every breach of a promise to marry does not amount to rape;
• The prosecutrix, being a married and mature woman with children, was fully capable of understanding the nature and consequences of her actions;
• The long-standing consensual relationship, knowledge of the accused’s marital status, and delayed complaint negated the allegation of consent obtained under misconception of fact.

The Court concluded that the relationship was consensual, and the presumption under Section 120 was not applicable, leading to the acquittal of the accused.
Similarly, in Pankaj Singh v. State of Haryana (2024), the Supreme Court scrutinised the conduct of the prosecutrix and the surrounding circumstances. It was found that:

• No fiduciary or position of trust existed between the parties;
• The prosecutrix accompanied the accused willingly;
• Evidence showed that they presented themselves as husband and wife at a guest house.

The Court held that Section 120 had no application, as the prosecution failed to prove absence of consent beyond reasonable doubt. It reaffirmed that the accused is not required to prove his innocence unless the statute expressly places such burden upon him.

5. Burden of Proof under Section 120
While Section 120 creates a rebuttable presumption against the accused, it does not dispense with the prosecution’s primary obligation to prove the offence beyond reasonable doubt. The presumption applies only when statutory conditions are satisfied and cannot be invoked mechanically.

6. Conclusion
Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 forms part of Chapter VII, which deals with burden of proof and presumptions. This provision reflects a conscious legislative effort to balance the rights of the accused with the need to protect victims of sexual offences.
While the presumption as to absence of consent strengthens the prosecutrix’s position, courts remain vigilant against misuse of the provision. The fundamental principle of criminal jurisprudence continues to apply--an accused is presumed innocent until proven guilty, and the prosecution must establish guilt beyond reasonable doubt unless the law expressly shifts the burden.