Section 120 BSA: Presumption as to absence of consent in certain prosecution for rape

Bharatiya Sakshya Adhiniyam, 2023

Section 120 BSA at a Glance

Section 120 BSA deals with presumption as to absence of consent in certain prosecution for rape. It replaced Section 114A IEA on 1 July 2024.

Was IEA

Section 114A →

Section 120 BSA Bare Act Text

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.

Source: Section 120, Bharatiya Sakshya Adhiniyam, 2023

Section 120 BSA in Simple Words

Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 requires a Court to presume lack of consent in specified rape prosecutions. When the statutory conditions are met, the Court must presume that the woman did not consent.

The rule applies in a prosecution for rape under Bharatiya Nyaya Sanhita, 2023 Section 64(2). For the presumption to operate, the prosecution must prove sexual intercourse by the accused. Next, the issue before the Court must be whether that act occurred without consent from the woman alleged to have been raped. Finally, the woman must state in evidence before the Court that the woman did not give consent.

Once all these conditions are satisfied, the Court has to presume that the woman did not consent. An Explanation to Section 120 BSA defines sexual intercourse for this rule. It means any of the acts mentioned in Bharatiya Nyaya Sanhita, 2023 Section 63.

When Section 120 BSA Applies

  • Applies in a prosecution for rape brought under Bharatiya Nyaya Sanhita, 2023 Section 64(2).
  • Applies when sexual intercourse by the accused, meaning any act mentioned in Bharatiya Nyaya Sanhita, 2023 Section 63, is proved.
  • Applies when the question before the Court is whether the act was committed without consent from the woman alleged to have been raped.
  • Requires the Court to presume lack of consent when the woman states in evidence before the Court that the woman did not consent.

Example of Section 120 BSA

In August 2024, a Court in Jaipur tries a rape prosecution under Bharatiya Nyaya Sanhita, 2023 Section 64(2) where the disputed question is whether Priya consented to sexual intercourse with Farhan. The prosecution proves sexual intercourse by the accused as defined through Bharatiya Nyaya Sanhita, 2023 Section 63. Priya states in evidence before the Court that the act occurred without consent. Under Section 120 BSA, the Jaipur Court must presume that Priya did not consent to the sexual intercourse.

Section 120 BSA in the IEA (Previous Law)

Section 120 BSA replaces Section 114A IEA from the old criminal code.

Section 114A of the Indian Evidence Act, 1872 became Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change in the presumption. The list of clauses of IPC section 376(2) reads "sub-section (2) of section 64" of the BNS, and "sexual intercourse" now refers to section 63 of the BNS.

FAQs on Section 120 BSA

What is Section 120 BSA?▼

Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 is a mandatory presumption rule in prosecutions for rape under Bharatiya Nyaya Sanhita, 2023 Section 64(2). Where sexual intercourse by the accused is proved and the woman testifies in Court that consent was not given, the Court must presume the absence of consent.

Can the Court decline to presume lack of consent when the conditions of Section 120 BSA are met?▼

No. Section 120 BSA states that the Court must presume the absence of consent once sexual intercourse by the accused is proved and the woman states in Court evidence that consent was not given.

What acts count as sexual intercourse under Section 120 BSA?▼

Any of the acts mentioned in Bharatiya Nyaya Sanhita, 2023 Section 63 count as sexual intercourse under the Explanation to Section 120 BSA.

What is Section 120 BSA in IEA?▼

Section 114A IEA was the corresponding rule before 1 July 2024. The presumption rule remains the same, with offence references updated from the Indian Penal Code (45 of 1860) to the Bharatiya Nyaya Sanhita, 2023.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·