BNS Section 63 – Definition | Acts | Statutory Presumptions

BNS Section 63 covers four categories of sexual acts (penetration by penis, insertion of objects/body parts, manipulation causing penetration, and oral application) that become rape when done in any of seven situations—such as against will, without consent, by fear or fraud, when the woman is under 18, or unable to communicate consent. “Consent” must be a clear, voluntary agreement. Medical procedures are excluded, and marital intercourse with a wife aged 18+ is excepted. Section 63 replaces IPC §375 and reflects the expanded, post-2013 definition.

Table of Contents

1. Introduction
2. Definition of Offence of “Rape”
3. Against the Will
4. Without Her Consent
5. Clarity of Consent
6. Statutory Rape – Section 63(6)

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1. Introduction

The term rape originates in the Latin term rapere (supine stem raptum), which translates as “to snatch, to grab, to carry off”¹. The offence of rape in its simplest term is the establishment of physical intimacy with a woman, without her consent, by force, fear or fraud. It is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. A woman who is raped suffers not only a physical injury but a deep sense of some deathless shame. Even though time eventually heals the physical scars, but the mental scars never go². Rape was recognised as a crime under Section 375 of the Indian Penal Code in the year 1860, amended in the year 1983, 2013, 2018 and now replaced by Section 63 of the BNS.

Sexual violence, apart from being a dehumanising act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.³

Rape is not only a crime against a woman, but also a crime against Society – Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty⁴, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely.⁵

2. Definition of Offence of “Rape”

A man is said to commit “rape” if he does any of the four acts under the circumstances falling under any of the seven specified descriptions

A man is said to commit “rape” if he does any of the following four acts:

Four Acts

1. Penetration

a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

2. Insertion of any object

b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

3. Manipulates any part of the body of a woman

c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

4. Applies his mouth

d) Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Narrow interpretation of Sexual Intercourse in Sakshi v. Union⁶ changed in 2013

Before 2013, the court refused to interpret sexual intercourse to include all sorts of penetrative violations of the female anatomy and observed that, “By a process of judicial interpretation the provisions of section 375, IPC cannot be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Before 2013, Section 375, used the expression “sexual intercourse” but the said expression was not defined. The dictionary meaning of the word “sexual intercourse” is heterosexual intercourse involving penetration of the vagina by the penis. Prosecution of an accused for an offence under section 376, IPC on radically enlarged meaning of section 375, IPC may violate the guarantee enshrined in Article 20(1) of the Constitution.”

However, in 2013 the definition of ‘Rape’ was enlarged by the Criminal Laws Amendment Act, 2013, and as per the amended definition:

Rape can be committed by a man against a woman. The term ‘person’ under clause ‘a’ to ‘d’ of Section 63 expands the scope of the term ‘Rape’ to include all kinds of violations of a female body whether done by a man himself and also in cases where the man uses any other man, woman or transgender as an agent for the purposes of carrying out any of the acts mentioned under Clause ‘a’ to ‘d’ of Section 63. Following the 2013 amendments, rape is no longer restricted to penile-vaginal penetration. Thus, penetration though essential to constitute the offence of rape need not necessarily be vaginal. It may be the penetration of any orifice of the female anatomy. Digital Rape i.e. penetration of the vulva, vagina, or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent would also amount to rape. After the amendments in 2013, insertion of any body part or object into the female’s cavity has been recognised as rape. Also, under clause ‘d’ application of mouth also amounts to rape.⁷ Thus clause ‘d’ constitutes a separate category of non-penetrative sexual act.

Man for the purposes of this section is a male human being of any age⁸.

Section 63, Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora.

The extent of penetration is immaterial – In Halsbury’s Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.⁹ The non-rupture of hymen is not sufficient to dislodge the theory of rape.¹⁰ To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genital or leaving any seminal stains.¹¹ Thus, the Supreme Court has accordingly held that even the slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial.¹²

For conviction under Section 63, rape is a question of law meaning that it is not just the conducting of any of the acts mentioned in the four clauses of Section 63, it is to be seen that the acts should have been done under circumstances falling under any of the seven descriptions specified under section 63.

Sine qua non of offence of rape is penetration, and not ejaculation – The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of “rape” as contained in section 375, I.P.C. refers to “sexual intercourse” and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.¹³

Partial penetration of penis without semen emission, may constitute
rape – To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376, IPC (Section 64 BNS).¹⁴

Rape is constituted when sexual acts enumerated above fall under any of the following Seven Circumstances

(i) against her will.

(ii) without her consent.

(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(v) with her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(vi) with or without her consent, when she is under eighteen years of age.

(vii) when she is unable to communicate consent.

3. Against the Will

Rape against the woman’s will imply that it was committed despite stiff resistance and opposition from the woman. Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.¹⁵ In Gagan Bihari Samal and Anr. v. State of Orissa¹⁶ the court held that, “it is clearly evident in the instant case, that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse”.

“Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed “consent” and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognises “consent” as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and “consent” one of the evidences of that condition. Likewise resistance is not a synonym of unwillingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of “consent” and resistance as being proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting witness.”¹⁷

Expressions ‘against her will’ and ‘without consent’ have different connotation – The expressions ‘against her will’ and ‘without her consent’ may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression ‘against her will’ would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression ‘without her consent’ would comprehend an act of reason accompanied by deliberation.¹⁸

4. Without Her Consent

Concept of consent – In Jowitt’s Dictionary of English Law the word ‘consent’ has been explained as an act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. It is further stated that consent supposes three things – a physical power, a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.¹⁹

“Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.”²⁰

“Consent,” for the purposes of defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent.²¹ “Consenting” as used in the law of rape means consent of the will and submission under the influence of fear or terror cannot amount to real consent.²² “In order to constitute “rape”, there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility, and, if she resists to the point where further resistance would be useless or until her resistance is overcome by force or violence, submission thereafter is not “consent”.²³

The question that how is consent to be interpreted was discussed at length in the case of DPP v. Morgan²⁴ (1975, House of Lords). In this case the defendant invited the other three defendant, much younger men to his house and suggested that they have sex with his wife telling them that she was kinky and any apparent resistance on her part would be a mere pretense. Accordingly they did have intercourse with her despite her struggles and protests. She kept screaming until a hand was placed on her mouth. They were subsequently charged with rape and the husband was charged for abetting and aiding rape. The wife deposed that she resisted and did not consent. At trial the three men pleaded that they had honestly believed that Mrs. Morgan had consented to sexual intercourse.

The trial judge directed the jury that the defendants would not be guilty of rape if they honestly believed that the woman was consenting and that belief in consent was reasonably held. But the jury nonetheless convicted all four and they appealed. In appeal, the House of Lords found honest, mistaken belief in the victim’s consent need not be reasonable to rebut a charge of rape. While the defendants won their legal argument, their convictions were upheld and the judges found that no reasonable jury would have ever acquitted the defendants even had they been correctly directed by the trial judge as to the law.

The accused were finally convicted, but two judges dissented and held that a honest and reasonable belief of the woman’s consent would negative the mens rea and make the accused innocent. They further observed that—

• When a defendant had sexual intercourse with a woman without her consent, genuinely believing nevertheless that she did consent, he was not to be convicted of rape.
• A man, who has intercourse with a woman believing on inadequate grounds that she is consenting to it, does not commit rape in ordinary parlance or in law.
• In rape the prohibited act is intercourse without the consent of the victim and the mental element lies in the Intention to commit the act without caring whether the victim consents or not.
• A failure on part of prosecution, to prove this element involves an acquittal because an essential element is lacking.

Thus, according to law, presence of mens rea is established only by determining that the man was aware of the woman not consenting to the act. Where he reasonably believes that the woman consented, he lacks the mens rea required to constitute rape. The judges observed that the defendant must possess a reasonable belief to assert mistake of fact as negating the intent required for the crime.

Consent of the woman should have been obtained prior to the act – It is no defence that the woman consented after the act.²⁵ The consent of a woman to sexual intercourse obtained by putting her in fear of death or of hurt is no defence to an accused person for an offence under this section. As a general proposition it is not true either in fact or in law that consent obtained by fraud is no consent at all.²⁶

Presumption as to consent – Consent or absence of it is generally gathered from the attendant circumstances. The circumstances that the girl was taken to the forest and kept throughout the night strongly suggests that the prosecutrix was not a consenting party.²⁷ A sleeping person can never consent. Where, therefore, a man had connection with a woman while she was asleep, he was held to have committed rape.²⁸

Consent for purpose of section 63(ii) requires voluntary participation after exercise of intelligence based on knowledge of act – Consent for the purpose of section 63(ii) requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between the resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.²⁹

Unfortunately IPC, 1860 or even BNS, 2023 does not define the term ‘consent’ in very clear terms. It just mentions what cannot be regarded as consent³⁰. A person, who is drugged, intoxicated or under the influence of anesthesia, unsoundness of mind, comma or paralysis is incapable of giving consent to the act. An act done without consent is not necessarily against the will, while an act done against the will is always without consent. A consent obtained by fear, force or fraud of any type is not consent for the purposes of exemption from liability under Section 63.

5. Clarity of Consent

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act –  Explanation 2 to Section 63 makes it clear that the consent should be voluntarily given and the participation must be a wilful participation. Consent is certainly “an act of reason, accompanied with deliberation, the mind of weighing, as in a balance, the good and evil on each side”. Consent supposes three things – a physical power, a mental power and a free and serious use of them. These ensure only the avoidance of intimidation, force, undue influence etc. It does not mean that use of these factors shall result in an intelligent, wise and righteous decision. In other words, it should not be a mere act of helpless resignation, non-resistance and passive giving in. In the case of State of Himachal Pradesh v. Mango Ram³¹ the Supreme Court rightly observed that, “Whether there was consent or not is to be ascertained only on a careful study of all relevant circumstances.”

Section 28 of the BNS provides that consent is presumed to be given only when it is not given under fear of injury or misconception of fact. Thus, a person is presumed to have consented only when the consent was given freely, voluntarily and without the influence of any fear, force or fraud operating on the mind of the victim. To constitute ‘consent’ under Section 63, there must be an intelligent and mature understanding of the nature and consequences of sexual act. If a girl passively submits or does not resist the advances of the accused, because of fear, it cannot be presumed to be consent for the purposes of Section 375. Absence of injuries on the person of the accused or the prosecutrix is not per se sufficient to indicate her consent.³²

In a case, girls mostly orphans, staying in the Ashram were raped by the swami who was running the orphanage. Consent of many of the prosecutrix had been obtained by deceitful means that if they had sex with him they would be cured of asthma or that if they had sex with the swami it is service to God or some of the girls had been raped under threat of dire consequences. Swami had dominion/control over the ashram girls and most of them being orphans had no alternative place to go. It was held that such a case clearly falls within the thirdly clause of section 375 (63 BNS), as the consent is obtained by deceitful means or under threat of death or hurt, it is no consent at all and it is without her consent.³³

Proviso to Section 63 (Section 375 IPC) clarifies that non-resistance is not to be construed as consent. Bringing out the difference between consent and passive submission, the High Court of Maharashtra said in the historic Mathura Case, “Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.”³⁴

Consent on the part of a woman as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent.³⁵ Absence of injuries on the aggressor or the aggressed may not, by itself, clinch the issue as to whether it was a case, of consent or no consent and this circumstance is to be judged in the light of the other evidence in coming to a conclusion. The consent given by the victim must also be voluntary and a mere act of helpless resignation in the face of inevitable compulsion when the volitional faculty is crowded by fear cannot be deemed to be consent within the meaning of (Section 63 BNS) Section 375 of the Code.³⁶ Similarly when her consent is obtained by putting her or any person in whom she is interested in fear of death or grievous hurt, such consent would be no defence.³⁷

In cases where the woman consents because she believes the man to be her lawfully wedded husband such as where the man either conceals the fact of his being already married to some other woman from her and undergoes marriage ceremonies with her thereby making the woman believe that she is lawfully wedded to him; or in cases where the man undergoes fake marriage ceremonies and dupes the woman into believing them to be correct, or where the woman believes that he is some other man to whom she is lawfully wedded, the consent is no defence. In these cases the woman agrees to cohabit with the man on the mistaken belief that she is lawfully wedded to him.

Also in cases where the woman is unable to understand the nature and consequences of that to which she consents by reason of unsoundness of mind or intoxication, resulting from administration of any stupefying or unwholesome substance, her consent is deemed as no consent. In cases where the woman is unable to move, in comma or otherwise unable to resist or express herself i.e. When she is unable to communicate consent the accused will be held guilty of rape if he commits any of the acts mentioned under Section 63 with her.³⁸

Sexual intercourse with a woman suffering unsoundness of mind – Consent given by a woman of unsound mind is of no avail. Where, therefore, a man had carnal knowledge of a girl of imbecile mind, and the jury found that it was without her consent, she being incapable of giving consent from defect of understanding, it was held that this amounted to rape.³⁹ In such a case the plea of consent is too shallow to even need detailed analysis or consideration. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be conscious and voluntary act. There is a gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. A girl whose mental faculties are undeveloped, cannot be said in law, to have suffered sexual intercourses with consent.⁴⁰ Where the accused made a woman quite drunk, and whilst she was insensible violated her person, it was held that this offence was committed.⁴¹

In case the victim is a deaf and dumb minor girl and the medical examination shows that she was subjected to forceful sexual assault and she identified the accused by pointing out to the accused in course of her examination in-chief, corroborated by the evidence of other witness who first noticed the accused taking her to a cattle shed at the time of incident, conviction of accused was held as sustainable.⁴²

Non-resistance under misconception of facts does not constitute consent – Mere non-resistance to intercourse in consequence of misapprehension will not amount to consent. In a case, where a medical man, to whom a girl of fourteen years of age was sent for professional advice, had criminal connection with her, she making no resistance from a bona fide belief that he was treating her medically, he could be convicted for rape.⁴³ Similarly in Queen v. Flattery⁴⁴ the accused professed to give medical advice for money, and a girl of nineteen consulted him with respect to illness from which she was suffering, and he advised that a surgical operation should be performed and, under pretence of performing it, had carnal intercourse with her, it was held that he was guilty of rape. In another case the accused, who was engaged to give lessons in singing and voice production to a girl of sixteen years of age had sexual intercourse with her under the pretence that her breathing was not quite right and he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the accused that she was being medically and surgically treated by the accused and not with any intention that he should have sexual intercourse with her. It was held that the accused was guilty of rape⁴⁵. In Uday v. State of Karnataka⁴⁶ the Supreme Court has made it clear that, “In the ultimate analysis, the test laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”

Mere meek submission is not consent – An act of helplessness on the face of the inevitable compulsions would not be a consent in law and it is not necessary that there should be actual use of force but a threat or use of force would be sufficient to constitute an offence of rape.⁴⁷ In a case where the prosecutrix at the time of incident was less than 18 years of age and after being kidnapped by two adult males, one of whom wielded firearm and threatened her and she was taken away from her village. Absence of alarm by her at public place cannot lead to the inference that she had willingly accompanied the accused persons. The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with the accused.⁴⁸ It is not easy to find a dividing line between submission and consent. Yet, the evidence has to be carefully scanned.⁴⁹

6. Statutory Rape – Section 63(6)

Consent of a girl below 18 years of age is immaterial and sexual intercourse with a girl below eighteen years of age would necessarily amount to rape even if she had consented to the same.

Earlier statutory age for consent was 16. In 2013 it was raised to 18, in order to bring it in conformity with pocso, 2012.

Consent of minor is no defence – Where the evidence clearly established that victim was less than 16 years of age her consent would be of no consequence.⁵⁰ The consent of prosecutrix is no defence if the victim has been proved to be under sixteen years of age.⁵¹ Section 375 covers case of a prosecutrix who had married accused without knowledge of his first marriage. The accused husband would be guilty of rape. The delay in lodging complaint by the prosecurtrix cannot in any event wash away the offence.⁵²

If the girl is less than sixteen years of age her consent is immaterial.⁵³ If once it was proved that the girl was below sixteen years of age, the question of consent did not arise and the fact that no injury was detected on the private parts of the girl or that she was found to have been used to sexual intercourse also become irrelevant.⁵⁴ Where the certificate of the radiologist, entry in the admission register of the school in which she was a student and a certified copy of the entry in the birth register showed that the prosecutrix was about fifteen years of age at the time of the occurrence of the case, the accused would squarely fall under clause fifthly of sections 3 & 5 (vi of Section 63 BNS) and he would be punishable for the rape irrespective of the consent of the girl.⁵⁵ Where the prosecutrix, a girl of about fourteen years of age, at the time of occurrence, was allowed by her father to be taken away by the relatives of his elder daughter’s husband to look after her elder sister for some time, and later on he learnt that the prosecutrix had been ‘married’ to the appellant. On hearing the same, he lodged a report with the police alleging that the accused persons had kidnapped his daughter and forced her to have illicit intercourse with the appellant and when the girl was recovered from the house of the appellant, she stated that she had been forcibly raped by the appellant for several nights in the appellant’s house, it was held that the accused was guilty of rape.⁵⁶ The only conclusive piece of evidence of a girl’s age may be the birth certificate but where such a document is not available the Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such testimony as may be available.⁵⁷

Where the evidence on record indicated some discrepancy as regards age of the victim and ossification or other pathological tests were not carried out, the finding recorded by the Sessions Court on the issue relying on the statement of the mother of the victim was not interfered with by the Supreme Court.⁵⁸

Presumption as to absence of consent in certain prosecution for rape [Section 120 of Bharatiya Sakshya Adhiniyam, 2023]

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.

In this section, “sexual intercourse” shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.

Presumption as to absence of Consent – Alongside the amendments related to Rape in IPC, Section 114A⁵⁹ was inserted in the Indian Evidence Act in the year 1983 and further amended in 2013 to make prosecutions in rape cases easier and less complicated. This corresponds to Section 120 in the BSA, 2023. In rape trials under section 64 sub-section (2) of BNS there is a presumption as to the absence of consent on behalf of the woman and the onus is on defence to prove otherwise. Thus, if the female says that she did not consent to the act of sexual intercourse, her statement will be presumed to be correct and taken as conclusive evidence. The burden would lie on the accused to rebut the same and prove that the intercourse was done with the consent of the woman.

The proviso to Section 149 of the BSA provides that in prosecutions for rape or for attempt to commit rape, where the question of consent is an issue, the court shall not permit anyone to adduce evidence or to put questions in the cross-examination of the victim pertaining to the general immoral character, or previous sexual experience, of the victim with any person for proving the consent or the quality of consent. Thus evidence of character or previous sexual experience is irrelevant in prosecutions for rape. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference of the victim being a woman of easy virtues or a woman of loose moral character can be drawn. Even such a woman has a right to protect her dignity and cannot be subjected to rape only for that reason. Merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated⁶⁰. Even if the victim of rape was previously accustomed to sexual intercourse, it cannot be the determinative question. On the contrary, the question still remains as to whether the accused committed rape on the victim on the occasion complained of. Even if the victim had lost her virginity earlier, it can certainly not give a license to any person to rape her. Whether the victim is of a promiscuous character is totally an irrelevant issue altogether in a case of rape. Even a woman of easy virtue has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.

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1. Keith Burgess-Jackson, A Most Detestable Crime: New Philosophical Essays on Rape, Oxford University Press, New York, 1999, p.16.
2. Bhupinder Sharma v. State of Himachal Pradesh 2003 Supp (4) SCR 792: (2003) 8 SCC 551.
3. State of Punjab v. Ramdev Singh AIR 2004 SC 1290.
4. AIR 1996 SC 922.
5. State of Punjab v. Ramdev Singh AIR 2004 SC 1290 para 1.
6. AIR 2004 SC 3566 paras 18 to 20.
7. Section 63(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.
8. Section 2(19) BNS, 1860.
9. Bhupinder Sharma v. State of Himachal Pradesh 2003 Supp (4) SCR 792: (2003) 8 SCC 551.
10. Parminder alias Ladka Pola v. State of Delhi, Criminal Appeal no. 133 of 2006 decided on January 16, 2014.
11. Modi in Medical Jurisprudence and Toxicology (Twenty Second Edition at page 495).
12. Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9].
13. Koppula Venkat Rao v. State of A.P. 2004 Cri LJ 1804 (SC): AIR 2004 SC 1874: (2004) 2 Crimes 306 (SC): (2004) 3 JT 328: (2024) 3 SCC 602 para 12.
14. Aman Kumar v. State of Haryana AIR 2004 SC 1497, para 7.
15. Tukaram v. State of Maharashtra AIR 1979 SC 185 at p. 817.
16. 1991 SCR (2) 839, 1991 SCC (3) 562.
17. State v. Schwab, 143 N.E. 29.
18. State of U.P. v. Chhoteylal AIR 2011 SC 697 para 13.
19. (Second Edition), Volume 1 (1977) at page 422.
20. State of HP v. Mango Ram, AIR 2000 SC 2798, 2000 AIR SCW 3095, 2001 CRI LJ (NOC) 31, 2000 (6) SCALE 89.
21. People v. Pelvino, 214 N.Y.S. 577.
22. Hallmark v. State, 22 Okl. Cr. 422.
23. People v. McIlvain 55 Cal. App. 2d.
24. 2 All. E.R. 347 (H.L. 1975).
25. 1 Hawk PC c 16, section 7, p 122.
26. State v. Mange Ram AIR 2000 SC 2798: 2000 SCC (Cri) 1331: (2000) 7 SCC 224: 2000 Cri LJ 4027 (SC): (2000) 9 JT 408: (2000) 3 Crimes 179 (SC); Motiram AIR 1955 Nag 121: 1955 Cri LJ 819 (SC): (1954) Nag 922.
27. Babu 1984 Cri LJ (NOC) 74 (Raj.).
28. Mayers (1872) 12 Cox 311; Young (1878) 14 Cox 114.
29. State of HP v. Mango Ram AIR 2000 SC 2798, 2000 AIR SCW 3095, 2001 CRI LJ (NOC) 31, 2000(6) SCALE 89 para 12.
30. 28. Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Sanhita,––
    (a) if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
    (b) if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
    (c) unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
31. JT 2000 (9) SC 408.
32. State of UP v. Padam Singh, 1996 ALHC 169 (All.).
33. Kamalanantha (2005) 5 SCC 194: AIR 2005 SC 2132: 2005 AIR SCW 1836: (2005) 3 Crimes 24 (SC): (2005) 4 JT 170: 2005 SCC (Cri) 1121.
34. Tukaram v. State of Maharashtra AIR 1979 SC 185.
35. State of Orissa v. Khudiram Sahu, (1986) 2 Crimes 639 at p. 640.
36. State of Orissa v. Khudiram Sahu, (1986) 2 Crimes 639 at p. 640.
37. Clause thirdly of Section 375 IPC, 1860.
38. Section 63(4).
39. Fletcher (1859) 8 Cox 131; Pressy (1867) 10 Cox 635; Khoja Ram 2006 Cri LJ 2093 (HP).
40. Tulshidas Kanolkar (2003) 8 SCC 590.
41. Camplin (1845) 1 Cox 220; Ryan (1846) 2 Cox 115.
42. Laxman Narayan Jadhav 2006 Cri LJ (NOC) 209 (Bom.); Devalla Raghuvulu 2005 Cri LJ 1041 (AP).
43. Reg. v. William, (a) (1850) Crl. Law Cases 220 (Vol. IV).
44. (1877) 2 QBD 410.
45. The King v. Williams, (1923)1 KB 340.
46. AIR 2003 SC 1639.
47. Satpal Singh 2010 Cri LJ 4283 (4289) (SC): (2010) 8 SCC 714.
48. State v. Chhotey Lal AIR 2011 SC 697: (2011) 2 SCC 550.
49. Deelip Singh (2005) 1 SCC 88: AIR 2005 SC 203: 2004 AIR SCW 6479: (2004) 4 Crimes 371 (SC): (2004) 9 JT 469.
50. Iqbal AIR 2008 SC 288: (2007) 12 SCC 724: 2008 Cri LJ 436 (SC).
51. State v. N K AIR 2000 SC 1812: 2000 Cri LJ 2205 (SC): (2000) 5 SCC 30: 2000 SCC (Cri) 898: 2000 AIR SCW 1407: (2000) 3 JT 643: (2000) 2 Crimes 84 (SC); Kamalanantha (2005) 5 SCC 194: AIR 2005 SC 2132: 2005 AIR SCW 1836: (2005) 3 Crimes 24 (SC): (2005) 4 JT 170.
52. Bhupinder Singh v. Union Territory of Chandigarh 2008 Cri LJ 3546 (SC).
53. Gurcharan Singh AIR 1972 SC 2661: 1973 Cri LJ 179 (SC): 1972 SCC (Cri) 793: (1972) 2 SCC 749; Yeshwant Rao AIR 1992 SC 1683: 1992 Cri LJ 2779 (SC): 1993 SCC (Cri) 283; Sudhamay Nath 1999 Cri LJ 4482 (Cal.).
54. Harpal Singh AIR 1981 SC 361: 1981 Cri LJ 1 (SC): 1981 SCC (Cri) 208: (1981) 1 SCC 560.
55. Harpal Singh AIR 1981 SC 361: 1981 Cri LJ 1 (SC): 1981 SCC (Cri) 208: (1981) 1 SCC 560; Ramachandran M 1996 Cri LJ 3566 (Ker.); State v. Inayathusen Mahmadmiya 1996 Cri LJ 3225 (Guj.).
56. Bishnudayal AIR 1981 SC 39: 1980 Cri LJ 1297 (SC): 1981 SCC (Cri) 283.
57. Sidheswar Ganguly AIR 1958 SC 143: 1958 Cri LJ 273 (SC).
58. Kamal Kishore AIR 2000 SC 1920: 2000 Cri LJ 2292 (SC): (2000) 4 SCC 502: 2000 SCC (Cri) 833: (2000) 5 JT 202: (2000) 2 Crimes 285 (SC).
59. Section 114A Indian Evidence Act, 1872: Presumption as to Absence of Consent in Certain Prosecutions for Rape – In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (‘), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, 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 clauses (a) to (d) of section 375
60. State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207. Also see State of Punjab v. Gurmit Singh AIR 1996 SC 1393; and State of U.P. v. Pappu @ Yunus AIR 2005 S