SCHOOL OF LAW, LOVELY PROFESSIONAL

UNIVERSITY, PUNJAB (INDIA)

Presumption as to absence of consent

SUBMITTED BY
RAVIDEEP SINGH
REG.NO. 11611106
LL.BTYC (2st Year)
Course Code: Law 403 Course Title: Indian Evidence Act

Course Instructor: Kanchal Gupta

Academic Task No.: CA-2 Academic Task Title: Topic Analysis

Date of Allotment: 10-24-2017 Date ofsubmission:10-27-2017

Students Roll no A15 Students Reg. no: 11611106

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s work or from any other source except where due acknowledgement is made explicitly in the
text, nor has any part been written for me by any other person.
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Contents
Introduction ................................................................................................................................................... 1
RESEARCH METHODLOGY..................................................................................................................... 2
AIMS AND OBJECTIVES ...................................................................................................................... 2
SCOPE AND LIMITATIONS .................................................................................................................. 2
RESEARCH QUESTIONS ...................................................................................................................... 2
METHOD OF WRITING ......................................................................................................................... 2
SOURCES OF DATA .............................................................................................................................. 2
METHOD OF CITATION ....................................................................................................................... 2
Law points..................................................................................................................................................... 3
Presumptions in Rape Cases under Section 114-A of Indian Evidence Act ................................................. 3
Section 114A in The Indian Evidence Act, 1872...................................................................................... 3
Section 376 of the Indian Penal Code ....................................................................................................... 3
What is a RAPE ............................................................................................................................................ 5
Presumption of Rape ..................................................................................................................................... 5
Proof of offence of rape ................................................................................................................................ 6
Presumption under Section 114-A when can be drawn? .............................................................................. 6
Presumption as to absence of consent of victim in Gang rape ...................................................................... 7
What is the need of Section 114-A?.............................................................................................................. 7
Conclusion .................................................................................................................................................... 9
References ................................................................................................................................................... 10
Introduction

Section 114 A provides that when the prosecution brings a charge of rape, the sexual
intercourse by the accused with the prosecutrix has been proved and that she was not the
consenting party, thus the onus to prove the consent lies on the accused. Consequently when a
case of rape is before a court it has to decide two things (1) whether the accused had intercourse
with the victim (2) This intercourse with or without the consent of victim. The prosecution has to
prove both the ingredients intercourse and want of consent. The result of long experience of
lawyers and judges that the proof of the fact that the accused has sexual- intercourse with a
woman is easier than to come to the conclusion as to whether the woman surrendered herself to
the accused readily. The intercourse with her consent or the accused had the intercourse without
her consent. There in law if woman states in her evidence before the court that she did not
consent, the court shall presume that she did not consent

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RESEARCH METHODLOGY

AIMS AND OBJECTIVES

This paper is written on Presumption as to absence of consent. Aim of this research paper is
finding out the importance of Presumption as to absence of consent. What is the status of this in
India.

SCOPE AND LIMITATIONS

This paper is limited to the subject and law provision defined in Indian law.

RESEARCH QUESTIONS
This paper will answer the issues raised in this research

1. What is the need of Presumption as to absence of consent?

2. Whether it is justifiable or not.
3. Whether its mention anywhere in Indian law
4. Where this presumption is used in Indian courts.

METHOD OF WRITING
This paper has used ILAC (Issues, Laws, Analysis, Conclusion) approach for reviewing the topic
at hand.

SOURCES OF DATA
The researcher has mainly referred to the mainly, Acts, case laws and articles by publicists on the
specified topic.

METHOD OF CITATION

A uniform mode of citation has been used throughout this project, based on the style specified in
THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, 19TH EDITION

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 Law points

Presumptions in Rape Cases under Section 114-A of Indian Evidence Act

Section 114A in The Indian Evidence Act, 1872

114A.1 Presumption as to absence of consent in certain prosecutions for rape.In a prosecution

for rape under clause

(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) 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 she states in her evidence before the Court that she did not consent, the Court shall presume
that she did not consent.

Section 376 of the Indian Penal Code

Section 376 is define punishment for rape as under2

1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for a term which shall not be
less than seven years, but which may extend to imprisonment for life, and shall also be
liable to fine.
2. Whoever
a. being a police officer, commits rape,
i. within the limits of the police station to which such police officer is
appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officers custody or in the custody of a police
officer subordinate to such police officer; or

1
Indian Evidence Act, 1872
2
Indian Penal Code (45 of 1860)

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 b. being a public servant, commits rape on a woman in such public servants custody
or in the custody of a public servant subordinate to such public servant; or
c. being a member of the armed forces deployed in an area by the Central or a State
Government commits rape in such area; or
d. being on the management or on the staff of a jail, remand home or other place of
custody established by or under any law for the time being in force or of a
womens or childrens institution, commits rape on any inmate of such jail,
remand home, place or institution; or
e. being on the management or on the staff of a hospital, commits rape on a woman
in that hospital; or
f. being a relative, guardian or teacher of, or a person in a position of trust or
authority towards the woman, commits rape on such woman; or
g. commits rape during communal or sectarian violence; or
h. commits rape on a woman knowing her to be pregnant; or
i. commits rape on a woman when she is under sixteen years of age; or
j. commits rape, on a woman incapable of giving consent; or
k. being in a position of control or dominance over a woman, commits rape on such
woman; or
l. commits rape on a woman suffering from mental or physical disability; or
m. while committing rape causes grievous bodily harm or maims or disfigures or
endangers the life of a woman; or
n. commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years,
but which may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that persons natural life, and shall also be liable to fine.

Explanations

1. For the purposes of this sub-section-

a. armed forces means the naval, military and air forces and includes any member
of the Armed Forces constituted under any Law for the time being in force,

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 including the paramilitary forces and any auxiliary forces that are under the
control of the Central Government, or the State Government;
b. hospital means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation;
c. police officer shall have the same meaning as assigned to the expression
police under the Police Act, 1861;
d. womens or childrens institution means an institution, whether called an
orphanage or a home for neglected women or children or a widows home or an
institution called by any other name, which is established and maintained for the
reception and care of women or children.

What is a RAPE

Rape is sex you dont agree to, including forcing a body part or object into your vagina, rectum
(bottom), or mouth. Date rape is when you are raped by someone you know, like a boyfriend.
Both are crimes. Rape is not about sex it is an act of power by the rapist and it is always
wrong.

Presumption of Rape
This provision (inserted in 1983) has brought about a rather radical change in the Indian Law
relating to rape cases. There in this provision if woman states in her evidence before the court
that she did not consent, the court shall presume that she did not consent. Formerly, the rule was
that corroboration of the victims version was not essential for a conviction, but as a matter of
prudence, it would have to be established if the mind of the judge, unless circumstances were
strong enough to make it safe to convict the accused without such corroboration. As observed by
the Supreme Court, although the victim of a rape cannot be treated as an accomplice, her
evidence is to be treated almost like accomplice evidence, requiring corroboration. (Sk. Zakir v.
State of Bihar,)3

3
1983 Cri. L.J. 1285

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Proof of offence of rape
When it is proved that the accused had sexual intercourse with the victim, and the question
remain to be proved that is whether it is without the consent of the woman alleged to have been
raped and the woman appears to the court and states before the court that she did not consent, the
court shall presume that she did not give her consent. The term shall presume it is directed by the
act that the court shall presume a fact , It shall regards such fact as proved , unless and until it is
disproved. The accused have to prove that to rebut this presumption that the woman consented to
the sexual intercourse. In Nwab Khan V. State4 accused succeeds in rebutting the presumption of
consent the prosecution may adduce evidence

Presumption under Section 114-A when can be drawn?

Now, of course, the position is different, and S. 114-A raises a presumption in favour of
the rape victim.

The following three conditions must be satisfied before the presumption contained in S. 114-A
can be raised:

(a) It should be proved that there was sexual intercourse.

(b) The question before the court should be whether such intercourse was with or without the
consent of the woman.

(c) The woman must have stated, in her evidence before the court that she had not consented to
the intercourse.

This presumption would apply not only to rape cases, but also to cases of attempted rape, as for
instance, when the victim was disrobed and attempts were made to rape her, which, however,
could not materialise because of intervening circumstances. (Fagnu Bhai v. State of Orissa)5

.Lastly, it may be noted that the presumption under S. 114-A can be drawn only when the
accused says that he indulged in sexual intercourse with the consent of the girl. If the case of the

4
1990 Cri LJ 1179
5
, 1992 Cri. L.J. 1808

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accused is not that such intercourse was had with her consent, no presumption can be drawn
under the section. (Ravindranath v. State of U.P.)6

Presumption as to absence of consent of victim in Gang rape

There was oral testimony of victim that three accused persons had forcibly took her to the forest
and had sexual intercourse with her for whole day and two nights. Injuries noted by doctor on
victim had comes with time of occurrence. The doctor had opined that there were signs of
forcible sexual assault which were present. As the evidence of victim had been fully
corroborated by medical evidence, the court shall presume that victim had not given consent and
the accused will be guilty under section 376(2)(g) of Act (Dev Kishan v State of Rajasthan)7

What is the need of Section 114-A?

Without entering into the consideration of the legal aspects of this offence, which is
related to criminal law and medical jurisprudence. To understand the subject going through three
heads

Violation of the female under the age of puberty.

Violation of the female after puberty but prior to her having otherwise had sexual
intercourse
Violation after puberty and where the female has been accustomed to such intercourse.

The presence of an intact hymen, which is a membrane stretched across the entrance to
the vagina, In which there opening towards the orifice to the urethra. This opening may
be presume a varity of forms, as that of an irregular, circular diaphragm broken at its
upper third or in some cases perforated by a central opening.

Violation of the female under the age of puberty is easy to prove by the doctors because
there is prima facie evidence for that, at the age of under puberty the private parts are not
properly developed. In case of child if the any adult male trying to rape a child its hard to

6
1991 Cri. L.J. 31
7
2003 Cri LJ 1118(Raj)

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the penis of the adult man going inside the vagina and of that cause child bear a serious
injuries in private parts which cause can be a child died. So in case easy to prove that the
crime is done.

Second situation is where the women after the age of puberty having not any sexual
intercourse. Basically if after the puberty rape is committed there time is much matter in
this case. When the rape is done the hymen is broken that cause woman face injury in the
vagina. But after the four days hymen comes into normal situation. So after four days is
hard to find whether rape is committed or not and the hymen is broken by the cause rape
or before its brake. In this case court consider the three things.

That previous connection with another person could not have taken place

That the alleged intercourse took place at the time alleged.

That it was by force and against the will of the woman

Coming now to the third division namely, Where the female is a known to have been
accustomed to sexual intercourse, it may be stated that the proof in these cases must
usually little assistance can be rendered by the medical expert. Of course the signs of
virginity and of defloration are not element of the inquiry

In first two cases medical reports can be play major rule to come on the conclusion and in
these two cases may be evidence not given by the women, in the case injuries itself states
that the rape is done. But in the third case is hard to find out by the medical jurist the
evidence, in these cases the evidence by the women under section 114A consider and
court has shall presume this evidence , and the burden of prove lies on the accused
whether there is consent of women or not?. It is not conclusive it can be rebutted by the
accused. This section is included after the Mathura das case and law maker realize that if
there is not any law like section 114A then there easy for the accused to acquittal cause
lack of evidence or not proved evidence, But now a days very jurist and judges realize
that this section is using to harass the people and putt into false litigations

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Conclusion

The standard and onus of proof in the case of rape has not been changed by section 114A
of the Evidence Act. It has only created a presumption qua the consent of the prosecutrix.
Section 114A provides that in a prosecution for rape under sub-section (2) of section 376
of the IPC, when there is an allegation of rape the question whether it was without
consent of the victim, the court shall presume that the she did not give her consent. In
case of rape where it is established that there had been intercourse, and if the victim states
in her evidence before the court that she did not consent, then the court shall presume that
she did not consent.
The Evidence Act nowhere says that the victims evidence cannot be accepted unless it is
corroborated in material particulars. The victim is undoubtedly a competent witness
under section 118 of the Indian Evidence Act, and her evidence must receive the same
weight as it is attached to an injured in cases of physical violence. The same degree of
care and caution must attach in the evaluation of her evidence as in the case of an injured
complainant or witness. What is necessary is that the court must be alive to and conscious
of the fact that it is dealing with the evidence of a person who is interested in the outcome
of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can
act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in
the Evidence Act which requires it to look for corroboration of evidence. If for some
reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it
may look for evidence which may lend assurance to her testimony short of corroboration
required in the case of an accomplice.

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References

Books

Ratan lal & Dhiraj Lal , Indian Evidence Act.

Batuk Lal, Indian evidence Act.

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