Presumption as to absence of consent in certain prosecution for rape
A mandatory presumption that protects the woman. In a prosecution for rape under section 64(2), BNS 2023, where intercourse by the accused is proved and the only question is consent, and the woman states in her evidence that she did not consent, the court shall presume she did not consent.
How to read Section 120
Intercourse proved, only consent in issue, and the woman testifies she did not consent → the court SHALL (must) presume there was no consent.
A prosecution for rape under sub-section (2) of section 64, BNS 2023, where sexual intercourse by the accused is proved.
The only issue left is consent — was the act without the consent of the woman.
If she states in her evidence that she did not consent, the court shall presume she did not consent.
The bare Act
The section in its own words — the rule and an Explanation.
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.
In short: in the specified aggravated-rape prosecutions under section 64(2) of the BNS, once the fact of intercourse by the accused is proved and the sole remaining question is consent, the law tilts the scale in the woman’s favour. If she testifies on oath that she did not consent, the court is bound — it shall presume the absence of consent. The burden then shifts to the accused to show that she did consent; it is a mandatory but rebuttable presumption. Note its narrow reach: it presumes only the absence of consent — not intercourse (which must already be proved) and not guilt as a whole. The Explanation borrows the meaning of ‘sexual intercourse’ from section 63 of the BNS 2023.
→ This carries forward IEA 1872 § 114A — the mandatory presumption of absence of consent.
Glossary
The aggravated categories of rape (e.g. by a police officer, public servant, in custody, gang rape, etc.) — only these prosecutions attract this presumption.
The physical act by the accused is already established; only consent remains in issue.
The act was not backed by the woman’s willing agreement.
The woman testifies, on oath before the court, that she did not consent.
A mandatory presumption — the court must presume absence of consent (though the accused may rebut it).
Any of the acts mentioned in section 63 of the BNS 2023.
The picture
Intercourse proved plus the woman’s testimony of no consent compels the presumption — the accused must then displace it.
The section, part by part
Tap a part — the picture-story tells it first; the word-by-word text and example follow.
the ruleHer sworn word of no consent compels the presumption
scope & ‘intercourse’Only § 64(2) prosecutions — and ‘intercourse’ borrows BNS § 63
Connected provisions
Court may presume facts
The general discretionary power just before — contrast this mandatory presumption.
Burden of Proof — complete
§ 120 closes Chapter VII (§§ 104–120). Return to the chapter map.
IEA 1872, § 114A
Carried forward — the mandatory presumption of absence of consent.