When is the presumption as to the absence of consent in certain prosecutions for rape?

Question: When is the presumption as to the absence of consent in certain prosecutions for rape?

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Answer

Section 114A of the Indian Evidence Act talks about the Presumption as to the 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, 1860 (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.

Presumption about the absence of consent in case of rape is talked about under this section. In order to constitute an offence of rape under the Indian Penal Code two facts have to be proved:

1. the accused had sexual intercourse with a woman,
2. the rape was committed without her consent.

In order to punish the accused for rape, the prosecution has to prove that the sexual intercourse was committed without consent because rape with pre-consent of a major girl is no offence. Section 114A of the Evidence Act lays down that in the cases mentioned in the section the prosecution has to prove only that there was sexual intercourse between the accused and the prosecutrix.

After that if the prosecutrix states in her evidence before the court that she did not consent, the court shall presume that the sexual intercourse was committed without the consent of the woman then it lies on the accused to prove that he committed the sexual intercourse with the consent of woman; but if he fails to prove the consent of the woman he shall be committed for the offence of rape under Section 376 I.P.C.

The presumption under section 114A arises when the accused who commits rape is a police officer, a public servant, an officer of Jail, Hospital, in the circumstances mentioned in clauses (a), (b), (c) and (d) of sub-section (2) of Section 376 of Indian Penal Code or he commits rape on a woman knowing that she is pregnant or when rape is gang rape.

Thus, the presumption under Sec. 114A arises when the accused who commits rape is a police officer, a public servant, an officer of jail, Hospital, or he commits rape on a woman knowing that she is pregnant or when rape is gang rape. This section has been added for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape.

Section 114A was introduced because of the increasing number of acquittals of accused when the victim of rape is an adult woman. If she was really raped, it was very difficult for her to prove the absence of consent. The present section was inserted a new provision in 1983 that has brought about a radical change in the Indian law relating to rape cases.

The turning point was the case of Tukaram v. State of Maharashtra (1979) SC the Hon’ble SC relying on the fact as a mandatory scenario that unless struggle has shown it will be implied that consent is there of the victim. In this case, a tribal girl eloped with a boy and both were later caught by the police.

The policemen left the boy at the post and took the girl to the police station where she was raped by one constable and another failed in an attempt owing to some reason. The court held that there was no rape committed on the victim because no signs of struggle so it was impliedly taken that girl must have given her consent.

This led to the amendment in both Section 376 of IPC and Section 114 of the Indian Evidence Act major rape laws in India in 1983.

Moreover, the presumption under Section 114A 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 materialize because of intervening circumstances (Fagnu Bhai v. State of Orissa, 1992 Cr LJ 1808).

As it is well settled in the case of Puran Chand v. State of HP, (2014) 5 SCC 689, that the offence of rape would be held to have been proved even if there is an “attempt of rape on the woman and not the actual commission of rape”.

Thus, if the version of the victim girl is fit to be believed due to the attending circumstances that she was subjected to sexual assault or rape and the trauma of this offence on her mind was so acute that led her to the extent of committing suicide, which she miraculously escaped, it would be a travesty of justice if the court disbelieves her version which would render the amendment and incorporation of section 114A as a futile exercise on the part of the legislature which in its wisdom has incorporated the amendment clearly implying and expecting the court to give utmost weightage to the version of the victim of the offence of rape which definition includes also the attempt to rape.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X