Section 229 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 (Indian Evidence Act, 2023) introduces a significant legal presumption in cases of rape prosecutions. It mandates that if sexual intercourse by the accused is established and the woman testifies that she did not consent, the court must presume that she did not consent.
📘 Text of Section 120
Presumption as to absence of consent in certain prosecutions for rape
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.(advocatekhoj.com)
Explanation: In this section, "sexual intercourse" shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023. (advocatekhoj.com)
🔍 Detailed Explanation
This provision aims to shift the burden of proof in rape cases, making it easier for survivors to seek justice. Here's how it works:
Establishment of Sexual Intercourse: The prosecution must prove that sexual intercourse occurred. This can be established through medical evidence, forensic analysis, or the testimony of the survivor and witnesses.
Testimony of Non-Consent: The woman alleging rape must testify in court that she did not consent to the sexual intercourse. Her statement becomes crucial in this context.(kanoongpt.in)
Legal Presumption: Once the above two conditions are met, the court is legally obligated to presume that the woman did not consent to the sexual intercourse. This presumption places the onus on the accused to prove otherwise.(kanoongpt.in)
⚖️ Legal Implications
This presumption is a significant departure from traditional legal standards where the burden of proof lies heavily on the prosecution. By shifting this burden, the law acknowledges the challenges survivors face in proving non-consent, especially in cases where physical evidence may be lacking. It also aims to reduce the trauma of cross-examination for survivors, as their testimony alone can be sufficient to establish non-consent.
🧭 Context within the Legal Framework
Section 120 operates within the broader context of the Bharatiya Nyaya Sanhita, 2023, which redefines various aspects of criminal law in India. This section aligns with the objectives of the Bharatiya Nyaya Sanhita to provide a more survivor-centric approach to justice, ensuring that the legal system is more responsive to the needs and rights of survivors of sexual violence.
📚 Additional Resources
For further reading and a comprehensive understanding of the Bharatiya Sakshya Adhiniyam, 2023, you can refer to the full text available at
This provision marks a progressive step in India's legal landscape, aiming to make the justice system more accessible and equitable for survivors of sexual violence.
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