Section 114A IEA vs Section 120 BSA — Presumption as to Absence of Consent in Certain Prosecutions for Rape

In India, the rule that a court shall presume absence of consent in aggravated rape prosecutions moved from Section 114A of the Indian Evidence Act, 1872 (IEA) to Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) on 1 July 2024. The rule is unchanged; it now refers to Section 64(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS).

At a glance

What changed

• Minor edit — the offences covered. IEA: "In a prosecution for rape under clause (a), clause (b), … clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code". BSA: "In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023". BNS s.64(2) has clauses (a) to (m). They correspond to IPC s.376(2)(a) to (h) and (j) to (n); clause (i) of s.376(2) had been omitted by Act 22 of 2018, although s.114A as printed still listed it.
• Minor edit (capitalisation only) — the operative rule. "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." The only textual change is "court" to "Court" (twice).
• Minor edit — the Explanation. IEA: "'sexual intercourse' shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code". BSA: "…any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023". BNS s.63 sets out the same four acts in clauses (a) to (d).
• Version history (for older cases). The official IEA text records that s.114A was inserted by Act 43 of 1983, s.6 (w.e.f. 25 December 1983), and substituted by Act 13 of 2013, s.26 (w.e.f. 3 February 2013). The 2004 text, as reproduced by the Supreme Court in Raju @ Umakant (in the passage before para 25), covered only clauses (a) to (e) and (g) of s.376(2), and clause (g) was then gang rape. That is why pre-2013 judgments apply the presumption to gang rape. In the text substituted from 3 February 2013, clause (g) of s.376(2) IPC is rape during communal or sectarian violence, and gang rape is a separate section, s.376D IPC, which s.114A does not list. The absence of gang rape from s.120 BSA therefore continues the position under the 2013 text; it is not a change made by the BSA.

Statutory text (relevant extract)

Extract — Section 120, BSA:

In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, 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.—In this section, "sexual intercourse" shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.

Extract — Section 2(1)(l), BSA:

"shall presume".—Whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

How it works — the conditions

The presumption operates only when every condition is met.

1. A prosecution for rape under s.64(2) BNS. The charge must be for one of the aggravated forms: rape by a police officer (within the station limits, in a station house, or on a woman in custody); by a public servant on a woman in custody; by a member of the armed forces deployed in an area; by jail, remand home or institution staff on an inmate; by hospital staff on a woman in the hospital; by a relative, guardian, teacher or person in a position of trust or authority; during communal or sectarian violence; on a woman known to be pregnant; on a woman incapable of giving consent; by a person in control or dominance; on a woman with a mental or physical disability; causing grievous bodily harm or endangering life; or repeatedly on the same woman (s.64(2)(a) to (m)).
2. Sexual intercourse by the accused is proved. The presumption does not prove the act. The prosecution must first prove one of the acts in s.63(a) to (d) by the accused.
3. Consent is the question. The issue must be whether the act was without the woman's consent.
4. The woman's statement in evidence. She must state "in her evidence before the Court" that she did not consent. On a reading of those words, a statement recorded only during investigation is not enough.
5. The Court shall presume. Once these conditions are met, the Court has no discretion. It must treat absence of consent as proved unless and until it is disproved (s.2(1)(l)). This contrasts with the "may presume" power in s.119 (s.2(1)(h)).
6. Rebuttal. The accused may lead evidence, or rely on the prosecution's own evidence, to disprove the presumed fact.

What s.120 does not cover, on a reading of the text. It does not mention s.64(1) (rape not in an aggravated category). Nor does it mention s.70 (gang rape), s.65 (rape of a woman under sixteen or under twelve) or s.66 (rape causing death or a persistent vegetative state). In those prosecutions consent must be proved in the ordinary way, unless another provision applies. For example, under s.63 description (vi) consent is irrelevant where the woman is under eighteen.

What this means in practice

For the prosecutor. Frame the charge under the correct clause of s.64(2) from the outset. Pankaj Singh refused to apply the presumption where no charge had been framed under the aggravated clause and the point had not been put to the accused in his examination under CrPC s.313 (now BNSS s.351). Prove the act first, then elicit from the victim, in her testimony in court, a clear statement that she did not consent.

For the defence. Check whether the charge actually falls within s.64(2); if it is under s.64(1) or s.70, s.120 is not engaged on its words. Where it is engaged, the burden shifts: Roshan Khan restored a conviction partly because "The defence has not led any evidence to rebut this presumption" (para 15). Rebuttal cannot be built on the victim's character or past sexual experience: s.48 BSA makes that evidence irrelevant on consent, and the proviso to s.149 bars questions about it in cross-examination.

For the trial court. Record the victim's statement on consent in her deposition, and record the specific clause of s.64(2) in the charge. Remember that the presumption goes to consent only — identity and the act itself must be proved independently.

For the victim and her advocate. The victim's own evidence in court is what engages the presumption. Section 48 and the proviso to s.149 protect her against character-based questioning on consent.

Judgments that still matter

BSA s.120 repeats the operative words of IEA s.114A, so on a reading of the text judgments construing those words remain relevant. None of the judgments below construes s.120 itself.

State of Rajasthan v. Roshan Khan & Ors., Supreme Court, 15 January 2014. A. K. Patnaik J. delivered the judgment of a two-Judge Bench (with Gyan Sudha Misra J.) in an appeal against the High Court's acquittal of six men for gang rape under s.376(2)(g) IPC. The prosecutrix had deposed that all six raped her without her consent and forcibly. The Court held that "the Court has to draw the presumption that she did not give consent". Because the defence had led no evidence to rebut it, the High Court could not find that she had gone on her own (para 15). It restored the convictions under ss.366 and 376(2)(g) (para 18). Why it matters now: it shows the presumption shifting the burden once its conditions are met. It applied the pre-2013 wording, under which clause (g) was gang rape; under the BNS, gang rape is s.70, which s.120 does not mention.

Pankaj Singh v. State of Haryana, Supreme Court, 21 March 2024 (Criminal Appeal No. 1753 of 2023). Abhay S. Oka J. delivered the judgment of a two-Judge Bench (with Ujjal Bhuyan J.). Counsel for the prosecutrix argued that s.114A applied because the accused was in a position of trust under s.376(2)(f). The Court held: "The condition precedent for applicability of Section 114A of the Evidence Act is that the prosecution must be for the offence of rape under various clauses set out therein under sub-Section (2) of Section 376 of the IPC." (para 10). No charge had been framed under clause (f), the point had not been put to the accused under s.313 CrPC, and there was no fiduciary relationship (para 11). The presumption therefore did not apply and the burden stayed on the prosecution (para 11). The appellant was acquitted (paras 22–23). Why it matters now: s.120 is tied to s.64(2) BNS in the same way.

Raju @ Umakant v. State of Madhya Pradesh, [2025] 6 S.C.R. 1 (2025 INSC 615) — 1 May 2025. K. V. Viswanathan J. delivered the judgment of a two-Judge Bench (with Sanjay Karol J.) in a 2004 gang-rape case under s.376(2)(g) IPC. The Court reproduced s.114A "as it stood in 2004" and, relying on Roshan Khan, held that the prosecutrix's statement that she did not consent raised the presumption. The defence's suggestion of a relationship with a co-accused, with nothing concrete adduced, did not rebut it (para 25; the reproduced text sits in the passage just before para 25). It noted the reasoning that "nobody can be consenting to several persons simultaneously" (para 25). It upheld the rape conviction and set aside the conviction under the SC/ST Act (para 45). Why it matters now: although decided after 1 July 2024, it applies the pre-2013 IEA text, not BSA s.120. It shows why gang-rape cases decided under the old wording cannot simply be carried over to s.120, which does not mention s.70 BNS.

Which law applies to your case

Section 170(2) BSA provides that any trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act, 1872, "as if this Adhiniyam had not come into force". The BSA came into force on 1 July 2024 (S.O. 849(E), 23 February 2024). A rape trial pending on that date applies IEA s.114A. For the offence, s.358(2) BNS lets proceedings for an offence committed before 1 July 2024 continue under the IPC "as if that Code had not been repealed". On a reading of these provisions, a prosecution under s.376(2) IPC begun after 1 July 2024 raises a question the texts do not answer expressly: whether s.120 BSA, which refers only to s.64(2) BNS, reaches it. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 114A of the Evidence Act? Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 114A of the Indian Evidence Act, 1872 from 1 July 2024. It applies in a prosecution for rape under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023, which replaced the aggravated forms of rape in Section 376(2) IPC. The rule itself is unchanged.

When does the presumption of absence of consent apply? Section 120 BSA applies only when three things are present: a prosecution for rape under Section 64(2) BNS, proof of sexual intercourse by the accused, and the woman's statement in her evidence before the Court that she did not consent. The Court shall then presume that she did not consent.

Does Section 120 BSA apply to every rape case? No. Its words are confined to a prosecution for rape under sub-section (2) of Section 64 BNS, the aggravated forms such as rape by a police officer, public servant, relative or person in a position of trust. In Pankaj Singh v. State of Haryana (21 March 2024, paras 10-11) the Supreme Court held that the equivalent IEA presumption did not apply where no charge had been framed under the relevant clause of Section 376(2) IPC.

Is the presumption under Section 120 BSA conclusive? No. BSA Section 2(1)(l) says that where the Court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. The accused may therefore lead evidence to rebut it. In State of Rajasthan v. Roshan Khan (15 January 2014, para 15) the Supreme Court relied on the defence's failure to lead any rebuttal evidence.

Does the presumption apply to gang rape under the BNS? Section 120 BSA refers only to Section 64(2) BNS, and gang rape is a separate offence under Section 70 BNS, so on a reading of the text the presumption does not in terms extend to it. Older judgments applying Section 114A to gang rape, such as Roshan Khan and Raju @ Umakant v. State of Madhya Pradesh (2025 INSC 615), applied the pre-2013 text, which covered gang rape under clause (g) of Section 376(2) IPC. The 2013 substituted text of Section 114A did not list gang rape, which was then Section 376D IPC.

Can the defence question the victim about her past sexual experience to show consent? No. Section 48 BSA makes evidence of the victim's character or previous sexual experience irrelevant on the issue of consent in prosecutions under Sections 64 to 71 and 74 to 78 BNS. The proviso to Section 149 BSA bars such questions in cross-examination of the victim in prosecutions under Sections 64 to 71 BNS.

What does sexual intercourse mean in Section 120 BSA? The Explanation to Section 120 BSA says sexual intercourse means any of the acts mentioned in Section 63 BNS, the definition of rape. Those acts are the four forms of penetration and oral contact set out in clauses (a) to (d) of Section 63, which repeat clauses (a) to (d) of Section 375 IPC referred to in the old Explanation.

Which Act applies to a rape trial pending on 1 July 2024? Section 170(2) BSA provides that a trial pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act as if the BSA had not come into force, so such a trial applies Section 114A IEA. On a reading of Section 358(2) BNS, the offence itself continues to be dealt with under the IPC.

Related

• Sections 375–376 IPC vs Sections 63–64 BNS — rape
• Section 114 Evidence Act vs Section 119 BSA — court presumptions
• Sections 113A–113B Evidence Act vs Sections 117–118 BSA — presumptions in dowry cases
• Sexual offences — IPC vs BNS guide
• Sections 145, 154 and 155 IEA vs Sections 148, 157 and 158 BSA — hostile witnesses
• Evidence Act to BSA — full section mapping table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 2(1)(h), 2(1)(l), 48, 119, 120, 149 and 170; commencement from footnote 1 to Section 1 of the official text.
• Indian Evidence Act, 1872 (India Code text): Sections 53A, 114A (with its amendment footnote) and the proviso to Section 146.
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 63, 64, 70 and 358(2).
• Indian Penal Code, 1860 (India Code text): Section 376(1)–(2) with its amendment footnotes.
• Bharatiya Nagarik Suraksha Sanhita, 2023: First Schedule entries for Sections 64(2) and 70(1) BNS.
• Judgments read in full text (Veritect Supreme Court corpus): State of Rajasthan v. Roshan Khan & Ors. (2014_1_418_433_EN.md); Pankaj Singh v. State of Haryana (Diary_6130-2023_Judgment.md); Raju @ Umakant v. State of Madhya Pradesh (2025_6_1_21_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.