Presumption as to Absence of Consent under Section 120 of the Bharatiya Sakshya Adhiniyam, 2023

Section 120 is the narrowest presumption in the Adhiniyam and the most frequently overstated. It does not apply to every prosecution for rape. It does not arise from the allegation. It does not operate until intercourse has been proved and the woman has deposed. Within its field it is mandatory and powerful; outside that field it does nothing at all, and a great deal of argument about it proceeds on an assumption the section does not support.

1. The Provision

Section 120 corresponds to Section 114A of the Indian Evidence Act, which was inserted by the Criminal Law (Amendment) Act, 1983 and substituted by the Criminal Law (Amendment) Act, 2013. It is carried forward with the references recast to the Bharatiya Nyaya Sanhita, 2023.

2. The Three Conditions

Three conditions must coincide, and the absence of any one means the section does not operate.

1. Sexual intercourse by the accused is proved. Not alleged — proved. This is the foundational fact and it must be established by evidence in the ordinary way.
2. The question is whether it was without consent. Where the defence is denial of intercourse altogether, or identity, the section has no application because consent is not in issue.
3. The woman states in her evidence before the court that she did not consent. The presumption does not arise from the complaint, from the first information report, or from the charge. She must depose.

Only when all three are present does the presumption operate — and it then operates as a 'shall presume' provision. Under Section 2(1)(l) the court must regard absence of consent as proved unless and until it is disproved, and the onus lies on the accused.

3. The Section Does Not Apply to Every Rape Prosecution

This is the limitation most often overlooked, and it is substantial.

The section applies to a prosecution under specified clauses of the substantive provision — the aggravated categories, corresponding to those enumerated in sub-section (2) of Section 376 of the Indian Penal Code, 1860 before the recasting. It does not apply to a prosecution under the general provision.

The categories are those in which the accused stands in a position of authority, trust or control over the woman, or in which the circumstances aggravate the offence. They include, in substance —

• A police officer within the limits of the station to which he is appointed, or in the premises of any station, or on a woman in his custody.
• A public servant on a woman in his custody or in the custody of a subordinate.
• A member of the armed forces deployed in an area.
• A person on the management or staff of a jail, remand home, place of custody or women's or children's institution, on an inmate.
• A person on the management or staff of a hospital, on a woman in that hospital.
• A relative, guardian or teacher, or a person in a position of trust or authority towards the woman.
• Rape during communal or sectarian violence.
• Rape on a woman known to be pregnant.
• Rape on a woman incapable of giving consent, or suffering from mental or physical disability.
• Gang rape, and repeated rape on the same woman.

The rationale for confining the presumption to these categories is coherent. Each involves a relationship of power, custody, trust or authority in which consent is inherently suspect, or a circumstance in which it is inherently improbable. Where the accused stands in such a relationship and intercourse is proved, the woman's evidence that she did not consent is given presumptive effect because the surrounding circumstances make it likely.

4. What Consent Means

The presumption operates on the absence of consent, and the meaning of consent comes from the substantive law.

The Bharatiya Nyaya Sanhita, 2023, following the amendment of 2013, defines consent for this purpose as an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act.

Two propositions in the substantive law bear directly on the operation of Section 120 and are frequently the answer to an argument about it.

Absence of physical resistance is not consent. The substantive provision states expressly that a woman who does not physically resist the act shall not by reason only of that fact be regarded as consenting. An accused who argues from the absence of injuries is therefore arguing against the statute.

Consent must be to the specific act. Willingness to be present, to accompany, or to engage in some other conduct is not consent to the act charged.

5. The Provisions That Work With It

Section 120 does not operate alone. Three other provisions of the Adhiniyam bear on the same question and together they form a scheme.

The three operate at different points and are complementary. Section 48 makes the material irrelevant; the proviso to Section 149 closes the route by which it would otherwise be extracted in cross-examination; and Section 120 supplies the presumption where the conditions are met. A prosecution relying on any one of them should be alert to the other two.

To these must be added the decisions on medical examination.

6. The Testimony of the Prosecutrix

Section 120 supplies a presumption in a narrow class of case. In every other rape prosecution the question of consent is decided on the evidence, and the governing principle concerns the weight of the prosecutrix's own testimony.

The Supreme Court has also held, in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, that a prosecutrix in a case of sexual assault is not an accomplice, that her evidence stands on a footing at least as high as that of an injured witness, and that a court may act on it without corroboration if it is satisfied of her truthfulness.

7. Rebuttal

Section 120 is a 'shall presume' provision, so the presumption is rebuttable. Under Section 2(1)(l) it stands unless and until it is disproved, and the onus lies on the accused.

The standard is the ordinary one for an accused rebutting a statutory presumption: a preponderance of probabilities. He need not disprove the absence of consent beyond reasonable doubt; it is enough to render the presumed fact improbable.

What he may not do is establish it by material the Adhiniyam has made irrelevant. Section 48 excludes evidence of the character or previous sexual experience of the victim on the issue of consent, and the proviso to Section 149 bars cross-examination on those matters. An attempt to rebut the presumption by such material is met not by a question of weight but by a rule of exclusion.

What remains available to him is material bearing on the circumstances of the occurrence — the relationship between the parties as it bears on the surrounding circumstances rather than on the woman's character, the conduct of the parties at the time and afterwards, the account given in the complaint compared with the evidence, and any material contradicting the prosecution version on matters going to the ingredients.

And as with every reverse burden, a third question remains after the rebuttal has been considered. Even where the accused fails to disprove absence of consent, the court must ask whether the material raises a reasonable doubt about the ingredients the prosecution had independently to prove — the identity of the accused, the fact of intercourse, and the circumstances bringing the case within the aggravated category relied upon.

8. Practical Points

1. Check whether the charge is under an aggravated category. The presumption does not apply to a prosecution under the general provision, and the point should be settled before it is invoked.
2. Prove intercourse. It is a foundational fact, and the presumption does not arise on the allegation.
3. Ensure the prosecutrix deposes to absence of consent in terms. The section requires her to state it in her evidence before the court, and an omission in the deposition is fatal to the presumption however clearly the complaint put it.
4. Establish the circumstances bringing the case within the category relied upon — the custody, the position of authority, the trust — since they are ingredients of the offence as well as the gateway to the presumption.
5. Object under Section 48 and the proviso to Section 149 to any attempt to introduce character or previous sexual experience, and take the objection when the question is put.
6. Do not rely on the presumption alone. The testimony of the prosecutrix, if it inspires confidence, is sufficient in any event, and the case should be built on it.
7. For the defence, attack the foundational facts — intercourse, identity, and the circumstances bringing the case within the category — since the presumption cannot arise until they are established.

9. The Position Stated Shortly

1. Three conditions must coincide — intercourse proved, consent in issue, and the woman deposing that she did not consent.
2. The presumption does not arise from the allegation, nor from the complaint, nor from the charge.
3. It applies only to the aggravated categories, not to a prosecution under the general provision.
4. It presupposes that intercourse is admitted or proved, and is therefore useless where the defence is denial.
5. It is a 'shall presume' provision, and the accused rebuts on a preponderance of probabilities.
6. Section 48 and the proviso to Section 149 close off character and previous sexual experience, so the rebuttal cannot be built from that material.
7. The two-finger test is impermissible and no inference may be drawn from a survivor's sexual history — Lillu.
8. Outside the section, the testimony of the prosecutrix suffices without corroboration if it inspires confidence — Bharwada Bhoginbhai and Gurmit Singh.

10. Related Topics and Provisions