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Report No. 185

Section 114A

This Section deals with 'presumption as to absence of consent in certain prosecutions for rape. It reads as follows:

"114A. In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of subSection (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual 265 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."

This Section was inserted by the Criminal Law (Amendment) Act 1983 (43 of 1983) w.e.f. 25.12.1983. This Section was introduced because of the increasing number of acquittals of accused in cases of rape. If she had been raped at a place where none could have witnesse.- as it happens in most case.- the prosecution would find it difficult to prove the offence beyond reasonable doubt. Sometimes, medical or DNA evidence is available and more often, it is not available.

The presumption is mandatory but is rebuttable.

There are several judgments of the High Courts which have applied Section 114A in cases of rape under Section 376 of the Indian Penal Code. But we prefer to refer to the two Supreme Court judgments on the point.

In Gagan Bihari Savant v. State of Orissa: 1991(3) SCC 562 the evidence of the prosecutrix showed that she had protested and struggled while she was subjected to forcible sexual assault by accused persons. It was held that evidence showed absence of consent on the part of the victim, even apart from the legal presumption under Section 114-A. The Supreme Court confirmed the conviction of all the persons involved in the gang-rape.

But, in a recent case in Dilip v. State of M.P.: 2001(9) SCC 452, the presumption was raised but it was held that in view of the infirmities in the evidence, the place of rape was not proved. It was held that while the sole testimony of the prosecutrix could be acted upon and made the basis of conviction without being corroborated in material particulars, in view of the infirmities in the sole testimony of the prosecutrix which contradicted the medical evidence as well as the evidence of the aunt of the victim to whom she had narrated the incident soon after the commission of the rape, it was difficult to accept that consent was not there. On the question of consent, though presumption under Section 114A was raised, no finding, it was held, need be recorded because of the finding that the prosecutrix was a willing party. The appeal was allowed and the appellant was acquitted in the Supreme Court.

In 172nd Report, there was an amendment proposed in Section 376 of the Indian Penal Code defining 'sexual assault'. Consequent changes were proposed to be made in Section 114A, in the 172nd Report. But, as the said Report is not yet implemented, we leave Section 114A as it is now.

Review of the Indian Evidence Act, 1872 Back

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