This section applies to every rape case and flips the burden of proof completely onto the accused.

It applies only to the specific aggravated categories of rape listed under section 64(2) of the Bharatiya Nyaya Sanhita, 2023, such as custodial rape or gang rape — not to rape cases in general.

Once the woman says she didn't consent, the accused is automatically convicted.

The presumption is rebuttable — the accused can still present evidence to prove that consent was actually given, and the court must weigh that evidence.

Bharatiya Sakshya Adhiniyam, 2023

Section 120

Presumption as to absence of consent in certain prosecution 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. Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.§

Why this exists

This provision traces back to Section 114-A of the Indian Evidence Act, 1872, inserted by the Criminal Law (Amendment) Act, 1983. That amendment followed public outrage over the 1979 Supreme Court judgment in Tuka Ram v. State of Maharashtra (the 'Mathura rape case'), where a custodial rape acquittal was seen as unjust because the burden of disproving consent fell entirely on the victim. Parliament responded by shifting the evidentiary presumption in specific categories of aggravated rape—custodial rape, rape by persons in authority, gang rape, and similar situations—so that the victim's sworn testimony of non-consent is presumed true, placing the burden on the accused to prove otherwise. The Bharatiya Sakshya Adhiniyam, 2023 carries this principle forward as Section 120.

How courts read it

Under the predecessor provision (Section 114-A of the Indian Evidence Act), courts consistently held that the presumption is rebuttable, not absolute: once the woman testifies to non-consent, the evidentiary burden shifts to the accused to prove consent, but the accused can still lead evidence to rebut the presumption. Courts also clarified that this presumption applies strictly to the categories of aggravated rape listed in the corresponding sub-section (formerly Section 376(2) IPC, now Section 64(2) BNS), and not to ordinary rape prosecutions generally. As the Bharatiya Sakshya Adhiniyam, 2023 is newly enacted, courts have not yet built a fresh body of interpretation specific to Section 120, but they are expected to follow the settled reasoning developed under the older provision.

Common misconceptions

Myth: This section applies to every rape case and flips the burden of proof completely onto the accused.
Fact: It applies only to the specific aggravated categories of rape listed under section 64(2) of the Bharatiya Nyaya Sanhita, 2023, such as custodial rape or gang rape — not to rape cases in general.
Myth: Once the woman says she didn't consent, the accused is automatically convicted.
Fact: The presumption is rebuttable — the accused can still present evidence to prove that consent was actually given, and the court must weigh that evidence.