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Report No. 172

7.4. Changes recommended in the Indian Evidence Act, 1872

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

We recommend 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."

(paragraph 5.1.4, supra)

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.

(paragraph, supra)

7.4.2. Deletion of clause (4) of section 155 of the Evidence Act.-

We recommend deletion of clause (4) of section 155 of the Evidence Act.

(paragraphs 5.2.2 and 5.2.3, supra)

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