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

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

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Estoppel Sec 121

Legal Commentary & Landmark Judgments: Section 120

Section 120 establishes a statutory presumption as to absence of consent in certain prosecutions for rape, shifting the burden onto the accused once sexual intercourse is proved and the victim states that she did not consent.

Statutory Predicates: Applies to prosecutions under Sections 64, 65, 66, 68, 70, 71 BNS where sexual intercourse is proved and the question is whether it was with consent.
Victim Testimony Trigger: Arises as soon as the victim states in her evidence before the court that she did not consent.
Mandatory Presumption: The court shall presume that she did not consent, placing the full burden of proving affirmative, voluntary consent upon the accused.

Key Landmark Precedents:

State of Punjab v. Gurmit Singh (1996) 2 SCC 384: The Supreme Court held that the testimony of a rape victim carries high credibility; once she deposes to lack of consent, Section 114A IEA (Section 120 BSA) mandates the court to presume absence of consent.
Bhadresh Bipinbhai Sheth v. State of Gujarat (2016) 1 SCC 152: Examined consensual adult relationships vs rape allegations, noting that while Section 114A raises a presumption, surrounding contemporaneous evidence and conduct can rebut it.

Courtroom Practice & Strategic Litigation Guidance:

In rape trials involving past relationships or commercial disputes, defense counsel must lead contemporaneous communications (WhatsApp chats, travel logs, hotel bookings, gifts) showing mutual, affirmative, and ongoing consent to rebut the Section 120 presumption.