sajjadhusainlawassociates@gmail.com|+91 7080909786
|
/
Sajjad Husain Law Associates

Sajjad Husain LawSajjad Husain Law Associates

Excellence in Legal Services

HomeHome
Bare ActsBare Acts
CrimeCrime
High CourtHigh Court
Latest NewsLatest News
Legal ArticlesLegal Articles
Supreme CourtSupreme Court
MoreMore
Sajjad Husain Law Associates

Sajjad Husain Law Associates

Excellence in Legal Services

Dedicated to providing exceptional legal services with integrity, expertise, and commitment to justice.

Get it on Google PlayDownload on App Store

Block-C, High Court,Advocates Chamber.515,
Lucknow - Ayodhya Rd, Gomti Nagar, Lucknow 226010

+91 70809 09786sajjadhusainlawassociates@gmail.com

Follow Us

Categories

    Sub Categories

      Resources

      • About Us
      • Contact Us
      • Advertise With Us
      • Careers
      • Privacy Policy
      • Terms & Conditions
      • Cookie Policy
      • Disclaimer
      • Editorial Policy

      © 2026 Sajjad Husain Law Associates. All Rights Reserved.

      PrivacyTermsContact

      Chapter VII - Section 120: The Presumption That Shifts the Burden on Consent in Aggravated Rape Trials, Under the BSA, 2023

      B

      Bare Acts

      Author
      17/07/2026
      10 mins read
      23 Views
      Chapter VII - Section 120: The Presumption That Shifts the Burden on Consent in Aggravated Rape Trials, Under the BSA, 2023
      Tags:RapeBSA 2023Section 120 BSA
      SHARE ARTICLE

      Listen to this Article

      Dual Host (Female & Male)
      0:00 / 0:00

      Introduction

      Chapter VIII of the BSA is now fully covered, and this run turns to Chapter VII ("Of the Burden of Proof"), working backward from its highest section just as the previous chapters were. Section 120 is that starting point, and it is one of the most consequential — and most misunderstood — provisions in the entire Act: the rule that tells a trial court what to presume the moment a rape complainant takes the stand and says, under oath, that she did not consent.

      This article explains what Section 120 actually requires, the narrow category of prosecutions it applies to, the 1996 Supreme Court judgment that remains the definitive word on how the presumption operates in practice, and how it is deliberately structured as a rebuttable presumption rather than the stronger "conclusive proof" standard used elsewhere in the Act.

      Bare Act Text — Section 120, Bharatiya Sakshya Adhiniyam, 2023

      120. Presumption as to absence of consent in certain prosecution for rape.

      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.

      Section 120 BSA vs. Section 114A IEA: A Renumbering, Not a Rewrite

      Section 120 carries forward Section 114A of the Indian Evidence Act, 1872 — itself inserted only in 1983, by the Criminal Law (Amendment) Act, in direct response to the Supreme Court's widely criticised acquittal in Tuka Ram v. State of Maharashtra (the "Mathura case"), which had held that the absence of visible injury on the complainant was fatal to a rape conviction. The operative wording is unchanged word for word; what changes is only the cross-references, since the underlying penal code itself has been replaced.

      Aspect Section 114A, Indian Evidence Act, 1872 Section 120, BSA, 2023
      Operative rule Identical wording: intercourse proved + woman's testimony of non-consent → court shall presume non-consent Unchanged
      Category of rape covered Clauses (a)-(n) of Section 376(2), Indian Penal Code, 1860 (custodial, gang, and similarly aggravated rape) Sub-section (2) of Section 64, Bharatiya Nyaya Sanhita, 2023 — the same category of aggravated rape, renumbered
      "Sexual intercourse" defined by reference to Clauses (a)-(d), Section 375, IPC Section 63, BNS
      Origin Inserted 1983, post-Mathura, alongside Section 376(2) IPC's aggravated categories Carried over unchanged in substance

      The aggravated categories under Section 64(2) BNS that trigger this presumption include rape by a police officer on a woman in custody, rape by a public servant on a woman in their custody, rape by armed forces personnel deployed in an area, rape by jail or hospital staff on an inmate or patient, rape by a person in a position of trust or authority (a relative, guardian, or teacher), rape during communal or sectarian violence, rape of a pregnant woman, rape of a woman incapable of giving consent, rape of a woman with a mental or physical disability, and repeated rape of the same woman. These are precisely the relationships of institutional or physical power imbalance where Parliament judged that requiring the complainant to affirmatively disprove consent, on top of everything else, was both unrealistic and unjust.

      1 The prosecution must fall within Section 64(2) BNS. Section 120 does not apply to every rape trial — only to the specific aggravated categories listed in that sub-section. Ordinary rape under Section 64(1) BNS gets no automatic presumption under this section.
      2 Sexual intercourse (as defined in Section 63 BNS) must first be proved. The presumption says nothing about whether intercourse happened at all — only about consent, and only once intercourse itself is an established fact, whether by admission, medical evidence, or otherwise.
      3 The woman must state in her evidence before the Court that she did not consent. Once she does, the statutory "shall presume" leaves the court no discretion to refuse the presumption — it is not optional or a matter of the judge's impression of her demeanour at that stage.

      State of Punjab v. Gurmit Singh: Reading the Presumption As Parliament Intended

      The leading authority on how this presumption is meant to function is State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, decided by a bench of Dr. A.S. Anand and Saiyad Saghir Ahmad, JJ. A schoolgirl was abducted after an examination and raped by three men, one after another. The trial court acquitted all three, treating minor inconsistencies — her not knowing the make of the car, her not raising an alarm while threatened — as fatal to her credibility.

      The Supreme Court reversed, in terms that have since become the standard courts are expected to apply whenever Section 114A IEA (now Section 120 BSA) is in play. The Court held the trial court's appreciation of the evidence was "unreasonable" and "perverse": a rural teenager's unfamiliarity with car models proves nothing, silence under a death threat is natural rather than suspicious, and her conduct afterward — telling her parents first, reluctance to publicise the assault, and leading the police to the scene — was exactly what a genuine victim's conduct looks like. The judgment is as much about how courts should assess a complainant's testimony generally as it is about the presumption itself, and it is routinely cited for both propositions together.

      1983 → 2023
      the 40 years separating the post-Mathura insertion of Section 114A IEA from its unchanged re-enactment as Section 120 BSA

      Bhupinder Sharma v. State of Himachal Pradesh: Applying the Presumption to Gang Rape

      In Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551, the accused argued he could not be convicted because the victim managed to escape before he personally completed the act of rape, even though his co-accused had already raped her. The Supreme Court held that Explanation 1 to Section 376(2) IPC (which deems every member of a group acting in furtherance of a common intention to have committed gang rape) operates together with Section 114A — once the group's rape of the victim was proved and she testified to non-consent, the presumption of non-consent applied to the prosecution as a whole, and the appellant's individual escape from completing the act did not extract him from that gang-rape liability. The case illustrates that Section 120's presumption is not read in isolation; it interacts with the substantive definitions of the aggravated categories it attaches to.

      Worked Example: What the Presumption Does and Does Not Decide

      A woman in judicial custody is raped by a member of the jail staff. At trial, the fact that intercourse occurred is not disputed — it is confirmed by medical evidence. The accused's defence is that the encounter was consensual. The woman testifies before the court that she did not consent. Because this is a Section 64(2)(d) BNS prosecution (rape by jail staff on an inmate), Section 120 is triggered: the court must presume she did not consent. The accused now carries the burden of rebutting that presumption with evidence — not mere assertion — that consent was in fact given, bearing in mind that "consent" obtained through the coercive backdrop of custodial power is itself scrutinised heavily under the substantive law of consent in Section 63 BNS.

      Contrast this with an ordinary rape prosecution under Section 64(1) BNS, with no custodial or comparable aggravating relationship. There, Section 120 does not apply at all, and the prosecution carries the ordinary burden of proving absence of consent as part of proving the offence — the woman's testimony remains powerful evidence under general principles (a conviction can rest on the sole testimony of the prosecutrix if it is found credible, a separate line of authority from Section 120 itself), but there is no statutory presumption shifting the onus to the defence.

      A Rebuttable Presumption, Not "Conclusive Proof"

      Section 120 uses the phrase "the Court shall presume" — a category the Act treats as legally distinct from "the Court may presume" (discretionary) and from "conclusive proof" (irrebuttable, and not open to challenge by any evidence to the contrary). A "shall presume" finding under Section 120 is mandatory once its conditions are met, but it remains open to the accused to rebut it with evidence. This places it in the middle of the Act's three-tier presumption framework — stronger than a discretionary presumption the court is free to decline, but weaker than the "conclusive proof" standard the Act reserves for situations like the legitimacy presumption in Section 116, where no contrary evidence is permitted to be led at all once the conditions are satisfied.

      Note: Section 120 is deliberately narrow in scope — it applies only to the aggravated categories of rape listed in Section 64(2) BNS, not to every rape prosecution. This scope limitation, carried over unchanged from the 1983 amendment, was a considered legislative choice about where the burden should shift, not an oversight.
      Caution: Do not treat Section 120 as dispensing with the need to prove that sexual intercourse occurred in the first place. The presumption operates only on the separate question of consent, after intercourse is already established as a fact — it says nothing about the threshold evidence needed to prove the act itself.

      Why This Matters in Practice

      For prosecutors, Section 120 is a significant tool in exactly the cases where the power imbalance between accused and complainant is greatest — custodial settings, institutional care, positions of trust — precisely because those are the settings where a complainant is least likely to be able to marshal independent corroborating evidence of non-consent beyond her own testimony. For the defence, the section makes clear that once its conditions are met, a bare denial is not enough; rebuttal requires actual evidence. For judges, Gurmit Singh remains the standing instruction that testimonial inconsistencies of the kind natural to trauma and social circumstance are not, by themselves, grounds to disregard a complainant's evidence or to refuse the presumption Parliament has directed the court to draw.

      Key Takeaways

      1. Section 120 BSA reproduces Section 114A IEA (inserted 1983, post-Mathura) without substantive change, only updating cross-references from the IPC/Section 375-376 to the BNS/Sections 63-64.
      2. The presumption applies only to the aggravated rape categories in Section 64(2) BNS (custodial, institutional, gang rape, and similar relationships of power) — not to every rape prosecution.
      3. Once sexual intercourse is proved and the woman testifies she did not consent, the court's presumption of non-consent is mandatory ("shall presume"), though rebuttable by evidence from the defence.
      4. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, remains the definitive authority on both the presumption itself and on how courts must evaluate a complainant's credibility without penalising natural inconsistencies born of trauma or circumstance.
      5. Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551, confirms the presumption operates alongside the substantive gang-rape provisions, not in isolation from them.

      Conclusion

      Section 120 opens this project's coverage of Chapter VII, "Of the Burden of Proof," at its highest section number. Unlike Chapter VIII's tightly self-contained three-section structure, Chapter VII runs from Section 120 down to Section 104 and gathers together some of the Act's most frequently litigated presumptions — dowry death, abetment of suicide by a married woman, and legitimacy among them — each addressed as this run continues backward through the chapter one section at a time.

      Continue Reading
      Chapter VIII - Section 121: Why the Law Won't Let You Take Back What You Made Someone Believe, Under the BSA, 2023 ➔
      https://www.sajjadhusainlawassociates.com

      Related Articles

      Related Articles