Presumption of Absence of Consent

Section 114A of the Indian Evidence Act, 1872 creates a mandatory but rebuttable presumption of absence of consent in specified aggravated rape prosecutions. Once its statutory conditions are satisfied, the court shall presume that the woman did not consent, unless the presumption is disproved.

Conditions for invoking the presumption

The presumption applies only when all the statutory conditions are present:

• The prosecution must concern an aggravated rape offence covered by Section 376(2) of the Indian Penal Code.
• Sexual intercourse by the accused must have been proved; the prosecution must first establish this foundational fact.
• Whether the act occurred without consent must be in issue before the court.
• The woman must state in her evidence before the court that she did not consent; an allegation recorded only outside court does not satisfy this condition.

Legal effect and scope

Under Section 4 of the Evidence Act, “shall presume” means that the court must regard absence of consent as proved unless it is disproved. Thus, Section 114A shifts the evidentiary burden regarding consent to the accused, but it does not remove the prosecution’s obligation to establish the facts that activate the presumption.

• The presumption is rebuttable, not conclusive.
• It does not automatically apply to every prosecution for rape; Section 114A specifically refers to the aggravated circumstances covered by Section 376(2).

Meaning of consent and present legal position

For Section 114A, consent has the meaning assigned in Section 375 of the Indian Penal Code: an unequivocal voluntary agreement communicated through words, gestures, or verbal or non-verbal communication to participate in the specific sexual act. The absence of physical resistance alone does not imply consent.

• The corresponding rule is now contained in Section 120 of the Bharatiya Sakshya Adhiniyam, 2023, read with Section 64(2) of the Bharatiya Nyaya Sanhita, 2023.