Section 114A Evidence Act and Section 120 BSA: Presumption of No Consent in Rape Cases

Section 114A of the Indian Evidence Act, 1872 created a mandatory presumption of absence of consent in specified prosecutions for aggravated rape. Its corresponding provision under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 120, read with the applicable offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).

Section 120 BSA: Presumption as to absence of consent

In a prosecution for rape under the specified clauses of Section 64(2) of the BNS, where the sexual act by the accused is proved and the issue is whether the act was without the woman's consent, the court shall presume absence of consent if she states in her evidence before the court that she did not consent. The statutory explanation connects the term sexual intercourse to the acts identified in the BNS definition of rape in Section 63.

Text and meaning of former Section 114A, Indian Evidence Act, 1872

In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Explanation: Under the former provision, "sexual intercourse" meant any of the acts mentioned in clauses (a) to (d) of Section 375 of the Indian Penal Code, 1860. The quoted text is retained as a historical reference to the former law, including its IPC cross-references.

Conditions for applying the statutory presumption

1. Specified prosecution: The case must concern one of the aggravated rape categories expressly covered by the applicable provision.
2. Sexual act established: The sexual act by the accused must be proved by admissible evidence.
3. Consent is in issue: The question before the court must be whether the act was without the woman's consent.
4. Testimony of non-consent: The woman must state in her evidence before the court that she did not consent.

Once these conditions are established, the statute uses the mandatory phrase "shall presume". Under the evidence law's definitions of presumptions, this is a rebuttable presumption, not an irrebuttable finding or an automatic conviction. The court must still determine the other essential ingredients of the charged offence.

What does consent mean under the rape provisions?

Section 63 BNS explains consent in terms of an unequivocal voluntary agreement communicated through words, gestures, or verbal or non-verbal communication, indicating willingness to participate in the specific sexual act. The mere absence of physical resistance does not, by itself, amount to consent. Statutory circumstances involving coercion, fear, incapacity or age must also be assessed according to the applicable provision.

Comparison of old and current legal provisions

Practical illustrations

Illustration 1: Presumption may arise

In a prosecution falling within a specified category of Section 64(2) BNS, the sexual act is proved, and the complainant states on oath that she did not consent. Where consent is disputed, Section 120 directs the court to presume absence of consent, subject to the law governing rebuttal and assessment of the entire evidence.

Illustration 2: A condition is not met

If the charge does not fall within the categories identified by Section 120, that particular statutory presumption does not automatically apply. The court must still examine consent and all other elements under the applicable general evidence and criminal law.

Chhattisgarh state amendment: Former Section 114B

The source article also records a Chhattisgarh amendment introduced by Chhattisgarh Act 25 of 2015, Section 14, inserting Section 114B after Section 114A in the former Indian Evidence Act. It addressed a discretionary presumption for specified offences concerning sexual harassment, outraging modesty, disrobing, voyeurism, stalking and related conduct under then-applicable IPC provisions, including Sections 354, 354A, 354B, 354C, 354D, 509, 509A and 509B.

Unlike the central Section 114A rule, this state provision used the expression "may, unless the contrary is proved, presume" and required testimony of the victim about the specified conduct. Because the Evidence Act has since been repealed and the BNS has replaced the IPC for new offences, the amendment's present operation cannot be assumed without examining applicable state enactments, notifications and savings. It should not be described as a nationwide provision of the BSA.

Evidence, safeguards and scope

• Section 120 addresses the issue of consent only when its prescribed conditions are met; it does not remove the need to prove the accused's identity and the relevant sexual act.
• Courts assess testimony, surrounding circumstances and legally admissible evidence under the governing procedural and evidence rules.
• Confidentiality and restrictions on disclosure of a sexual-offence survivor's identity remain important legal safeguards.
• Which enactment governs a particular case depends on the alleged offence, commencement dates and any applicable savings provisions.

Official legislation and further reading

• India Code: official central legislation repository - consult the Bharatiya Sakshya Adhiniyam, 2023, Sections 120 and 170.
• India Code: Bharatiya Nyaya Sanhita, 2023 - consult Sections 63 and 64.
• India Code: Indian Evidence Act, 1872 (historical text) - consult Section 114A and state amendments as applicable.

Frequently asked questions

Updated 20 October 2026. This article provides general legal information, not case-specific legal advice.