Bharatiya Sakshya Adhiniyam, 2023
Section 120 BSA 2023: Presumption as to Absence of Consent in Certain Prosecution for Rape
Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 creates a mandatory evidentiary presumption about absence of consent in the specified class of rape prosecutions under section 64(2) of the Bharatiya Nyaya Sanhita, 2023. The provision operates when the statutory conditions are satisfied and the woman states in her evidence before the Court that she did not consent.
Current law: The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024.
Text of 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.
What Section 120 Means
Section 120 is a rule of evidence. It does not itself create the offence of rape or prescribe punishment. The offence and punishment are dealt with under the Bharatiya Nyaya Sanhita, 2023, while Section 120 tells the Court how to treat the issue of consent when the provision applies.
The expression "shall presume" is defined by the Bharatiya Sakshya Adhiniyam to mean that the Court must regard the fact as proved unless and until it is disproved. Accordingly, once the statutory preconditions of Section 120 are established, the Court must presume absence of consent, subject to rebuttal in accordance with law.
Conditions for the Presumption to Apply
- The prosecution must be for rape falling under section 64(2) of the Bharatiya Nyaya Sanhita, 2023.
- Sexual intercourse by the accused must be proved.
- The disputed question must be whether the act was without the woman's consent.
- The woman must state in her evidence before the Court that she did not consent.
If these conditions are present, Section 120 directs the Court to presume that there was no consent.
Meaning of "Sexual Intercourse" for Section 120
The Explanation to Section 120 expressly connects the expression "sexual intercourse" with the acts described in section 63 of the Bharatiya Nyaya Sanhita, 2023. Section 63 is the substantive provision defining rape and sets out the acts and circumstances relevant to that offence.
Relationship with Section 64(2) of the BNS
Section 64 of the Bharatiya Nyaya Sanhita, 2023 deals with punishment for rape. Section 120 BSA is specifically linked to prosecutions under sub-section (2) of Section 64. Therefore, the presumption is not framed as a general rule for every prosecution in which consent may arise; it applies within the statutory category identified by Section 120 itself.
Practical point: Section 120 concerns proof of consent. It should be read together with the relevant substantive provisions of the Bharatiya Nyaya Sanhita, 2023 and the other applicable rules of evidence under the Bharatiya Sakshya Adhiniyam, 2023.
Earlier Corresponding Provision
Section 120 BSA broadly corresponds to the earlier presumption contained in Section 114A of the Indian Evidence Act, 1872. For matters governed by the new evidence law, the applicable provision is Section 120 of the Bharatiya Sakshya Adhiniyam, 2023.
Related BSA Provisions
The provisions immediately preceding Section 120 deal with other statutory presumptions and rules concerning burden of proof. The related internal links are provided in the sidebar for convenient reference.
Frequently Asked Questions
Does Section 120 itself define rape?
No. Section 120 is an evidentiary provision. The definition of rape is contained in Section 63 of the Bharatiya Nyaya Sanhita, 2023.
Is the presumption under Section 120 mandatory?
Yes, when the statutory conditions are satisfied, the wording "shall presume" requires the Court to draw the presumption. Under the BSA definition of "shall presume", the presumed fact is treated as proved unless and until it is disproved.
When did the Bharatiya Sakshya Adhiniyam, 2023 come into force?
The Central Government appointed 1 July 2024 as the date on which the Bharatiya Sakshya Adhiniyam, 2023 came into force.