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Report No. 172

5.1.4. Modification of section 114A of the Evidence Act recommended.-

Accordingly, we recommended that section 114A be modified to read as follows:

"114A. Presumption as to absence of consent in certain prosecutions for sexual assault.- In a prosecution for sexual assault under (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 (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the other person alleged to have been sexually assaulted and such other person states in his/her evidence before the court that he/she did not consent, the court shall presume that he/she did not consent.

Explanation: "Sexual intercourse" in this section and sections 376C and 376D shall mean any of the acts mentioned in clauses (a) to (e) of section 375. Explanation to section 375 shall also be applicable."

5.1.4.1. It goes without saying that the aforesaid presumption is a rebuttable presumption of law (`shall presume') within the meaning of section 4 of the Evidence Act.

5.1.5. Consideration of the suggestion of "Sakshi" to create presumption in respect of the age of the victim.-

We may in this connection refer to another suggestion of Sakshi that a similar presumption be created in respect of the age of the victim. We however do not see any necessity for such a provision since the question of age is really and ultimately a matter of evidence and be better left to the judgment of the court.



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