ORIGINS OF SECTION 114A EVIDENCE ACT, INSERTED FIRST

BY CRIMINAL LAW (AMENDMENT) ACT, 1983 (ACT 43 OF 1983)

1. Tukaram & V. State of Maharashtra [1979 2 SCC 143], the case was

regarding the custodial rape of a minor girl by two police officers,

wherein, the accused persons were acquitted as the Court disbelieved

the statement of the victim on the ground that the circumstantial

evidence did not lead to the inference of guilt. The verdict led to a

nationwide protest for inclusion of custodial rape within the provision

of rape. This resulted in the recommendation of the Law Commission

in its 84th Report that in cases of rape where sexual intercourse is

proved, then if the victim in her evidence states that she did not

consent, it shall be presumed by the Court that she did not consent to

the same. Further, custodial rape and other provisions were brought

into force by the Criminal Law (Amendment) Act 1983.

2. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [(1983) 3 SCC

217], the Hon’ble Supreme Court held that it was open to the Court to

rely upon the evidence of a complainant even without seeking

corroboration if corroboration by medical evidence is available. This

judgment acted as an accelerant in the incorporation of Section 114A

by the Legislature and has been referred to in the Parliamentary

debates. In Bharwada Bhoginbhai Hirjibhai, the Hon’ble Supreme

Court held that:

“11. …We are therefore of the opinion that if the evidence of the
victim does not suffer from any basic infirmity and the ‘probabilities
 factor’ does not render it unworthy of credence, as a general rule,
there is no reason to insist on corroboration except from the medical
evidence, where, having regard to the circumstances of the case,
medical evidence can be expected to be forthcoming, subject to the
following qualification: Corroboration may be insisted upon when
a woman having attained majority is found in a compromising
position and there is a likelihood of her having levelled such an
accusation on account of the instinct of self-preservation. Or when
the ‘probabilities-factor’ is found to be out of tune.”

3. 84th Law Commission Report dated 25th April 1980, on Rape and

allied offences: Some Questions of Substantive Law, Procedure and

Evidence:

The 84th Report of the Law Commission discussed the requirement for

amending rape laws in order to make them more survivor-centric. The

Commission had proposed some changes to the Evidence Act, one

being that once the victim testifies that she did not consent to the sexual

intercourse, then the burden of proving the consent ought to be shifted

to the accused. The Law Commission had proposed an overarching

provision that shifts the burden of proof on the accused in all cases of

rape as opposed to the provision that was finally introduced by the

legislature (S. 114A) which shifts the burden of proof only in

aggravated forms of rape as provided in subsection (2) of S. 376 of IPC

or subsection (2) of S. 64 of BNS.

Relevant extracts from the Report are reproduced below:

“Chapter III: Want of consent – how proved

Burden of proof of want of consent-

7.7. Want of consent being a cardinal element of rape under section

375, second clause of the Indian Penal Code, it is for the prosecution
to prove it. Now, it is common experience that many prosecutions
for rape fail for want of such proof. There often arise situations
where the probability is that the woman did not consent, but
sufficient legal proof of want of consent is not forthcoming.

For example, the woman may be physically too weak or mentally

too dazed to resist (so that no marks of violence could come into
existence). Or, the venue of the offence-e.g. the secluded place in
which rape is committed, -may totally take away the inclination
to resist, even if there is a physical capacity to do so, because
resistance in such circumstances would be futile. Same would be
the case where the woman about to be attacked knows that the
offender is well armed, or where what has come to be known as
"gang rape" is committed. In such cases also, resistance would be
futile and may even cause more harm than passive submission. In
such situations, marks of resistance or other visible signs of “no
consent” cannot be insisted upon.

In our opinion, it should be obligatory for the Court to draw

prima facie inference of want of consent, once the woman who is
alleged to be the victim states in the witness box before the Court
in her evidence that she did not consent.

Section 114 Evidence Act –

7.8- Even now, if due regard be had to the provisions of section 114
of the Indian Evidence Act, the Court is competent to presume want
of consent in such special circumstances as are mentioned above-
provided, of course, the other circumstances are consistent with
want of consent.
The extent to which the victim may resist is for her to determine,
and there are naturally no minima or maxima in this regard. The
woman is required to go no further than is necessary to make
manifest her unwillingness to yield to the attack. The amount of
visible resistance if any, must depend on the facts. Resistance is
important only as evidence of non-consent. The crime does not
hinge upon the woman’s exertion.

Signs of Violence –

7.9 It is a peculiarity of the offence of rape that usually there are no

witnesses excepting the victim herself. Proof of the offence,
therefore, primarily depends on the credibility of the allegations of
the victim. It is mainly for this reason that a statement of the woman
that there was intercourse without her consent is often not accepted
unless there is some overt evidence of want of consent. Bruises,
scratches or other marks of struggle may constitute such evidences,
but that would, at best, be a feeble evidence of want of consent.

Unfortunately, such marks of struggle are sometimes regarded as

constituting the only evidence of want of consent. Such an attitude,
though deeply regrettable, has no basis in the statutory provisions
constituting the law of evidence in India. In fact, the Indian law of
evidence does not, in general, lay down that a particular species of
evidence should be insisted upon in proof or disproof of a particular
fact. The Evidence Act lays down certain general rules which
indicate the nature of facts that can be proved. If a fact to be proved
is a fact in issue, its consequences (effects) are, no doubt, relevant.
But proof of those consequences or effects is not limited to particular
species of evidence. Thus, if want of consent is the fact in issue, its
consequence—the physical resistance or struggle-is, no doubt,
relevant; and so is the consequence of that physical struggle,
namely, marks on the body. But the law does not lay down that only
that piece of evidence can be given.
This point in fact need not be laboured further.

Need to change the law-

7.10. We would have left the matter at that. However, having regard
to the modus operandi of committing rape that has become more
frequent during recent years, it would be useful if, by a specific
statutory provision, the statement made in evidence by the
prosecutrix is regarded as raising a presumption of want of
consent. As life becomes more complex and the ways of criminals
more sophisticated, situations of the nature that we have mentioned
above might become more frequent, and the necessity of invoking
some such presumption as is suggested above may become more
apparent. We are, therefore, of the view that where rape is alleged
to have been constituted by sexual intercourse without the
consent of the woman-i.e., in the case contemplated by section
375, second clause-the court shall presume that there was want of
consent, provided the prosecutrix has stated so in her evidence.

It may be mentioned that under the Evidence Act, the use of the
expression "shall presume" does not bar rebutting evidence in
regard to the fact about which a presumption is made.

Recommendation to add section 111 A in the Evidence Act-

7.11. In the light of the above discussion, we recommend the

insertion of the following new section in the Indian Evidence Act.
1872:--

"111A. In a prosecution for rape or attempt to commit rape, where

sexual intercourse is proved and the question is whether it was
without the consent of the woman and the woman with whom
rape is alleged to have been committed or attempted states in her
evidence before the Court that she did not consent, the Court shall
presume that she did not consent…"
4. Extracts of Parliamentary debates concerning S. 114A Evidence Act.

i) [LSD – 18.11.1983]

Shri P. Venkatasubbhaiah:
“…An important change is proposed to be made in the Evidence
Act to provide for presumption as to absence of consent in certain
prosecution for rape. New Section 114A, inserted by clause 6 of the
Bill provides that in a prosecution for the aggravated forms of
rape listed in sub-section (2) of revised section 376 where sexual
intercourse by the accused is proved and the woman states that
she did not consent, it will be for the accused to prove that such
intercourse was with the consent of the woman. This provision
marks a departure from the normal rule of evidence although some
exceptions exist in other to this legislations normal rule also. In fact
there was a recommendation that the onus of proving consent on
the part of the woman should be on the accused in all cases of
rape. This was not considered fair. A departure, however, from
the normal rule was considered reasonable in the case of a rape by
a police officer within limit of the police station to which he is
appointed or in the premises of any station house or by a person
having a custodial control by virtue of his special position over
the victim or in cases of gang rape, or rape on a woman knowing
her to be pregnant. It was considered fait that in such
circumstances. This onus should be discharged by the accused and
it is expected that this provision will bring to book offenders who
might otherwise have escaped justice…”
ii) [LSD – 21.11.1983]

Shrimati Geeta Mukherjee:

“…I now come to another thing. After the submission of the report
of the Joint Committee, a very important judicial pronouncement
has been made where our Supreme Court, for the first time, has
made a categorical observation with regard to the question of
onus of proof or credibility of a woman. With your permission, I
will have to quote some paragraphs as reported in no less a paper
than Hindustan Times. In this Bill, upto now, only in certain
categories, the onus of proof will be on the accused and the court
will presume it if the woman says that she did not consent. Other
categories are left out from this clause…”

[Then paras from Bharwada Bhoginbhai Hirjibhai were quoted].

“…Here is a categorical judgment, a refined judgment, apart from

the literary merit of it, the judicial merit and, the human merit of it,
is apparent to everybody. When I speak about human merit I have
in my mind that many judicial questions were brought before us all
the time despite human considerations. But here is the Supreme
Court who should be the best judges under the circumstances. Now,
we have the best judicially to demand that Section 114A should
not be applicable only in the cases of custodial rape or in a limited
sense but that Section 114A should be applicable to every case of
rape. This is what I demand. This was outside the purview of the
Joint Committee But it was after the Joint Committee that this
verdict has come out. I would particularly request the Hon. Minister
concerned who I know is personally sympathetic to think over it
that here is an ally; let us make use of the possibility that the
Parliament is debating this law today and let us not make half-
hearted attempts and keep it half finished. I would like this to be
included.”
iii) [LSD - 01.12.1983]

Shrimati Geeta Mukherjee:

“…That court judgment has clearly stated that if the woman says-
any woman, not only who is victim of custodial rape but any
woman victim-that she did not give her consent, then the court
should presume it. That is why we have been agitating that there
is a simple solution to the entire question that only with these
things the onus of proof will shift, with the other things it will not
shift. Therefore, I have moved a very simple amendment in all cases
that when the woman alleged to have been raped, states in her
evidence before the Court that she did not consent, the court shall
presume that she did not consent. In every case of rape, the
responsibility of proving should lie with the accused and not with
the victim. I know what will be said against this. Again that
blackmail. So, I say that there are some bad people to blackmail
but overall womanhood will not generally go in for blackmail
when it is a question of rape. That will be debated. That is why I
think that after the Supreme Court verdict, this should be clearly
accepted by the Minister. That will give you enough scope really to
deal with rape victims under the circumstances of our society about
which everybody spoke. Those constraints remain.”

iv) [RSD – 05.12.1983]

Shri Ghanshyambhai Oza:

“…Sir, certain other amendments have also been brought. For

example, section 114 of the Evidence Act has been amended. My
friend was trying to explain. The words are, where sexual
 intercourse of the accused is proved and the question is whether
it was with the consent or the women alleged to have been raped,
if she states in her evidence before the court that she did not
consent, the court shall presume that she did not consent. Now,
Sir, we know that there are some women of very easy virtue also.
Excuse me for saying so. Most of them are good. But women of
easy virtue are also sometimes arrested for committing some
crime. Suppose they induce some young officers and then they
complain about it, they induce police officers, young police
officers, innocent police officers, to have love affair with them
and soon after in order to blackmail those officers or constables
they complain against them.”

Shri Lal K. Advani:

“...Now, I come to the principal reservation which I have about this

Bill. I do not agree with my colleague, Mr. Oza, on both the points
that, he has made, either on the question of presumption of consent
or want of consent. I do not agree also, on the question of publicity.
I think, the law as has been framed now, is the right law, is the
correct law. It has been confined to very specific cases. The Select
Committee and the Government have not gone as far as the Law
Commission wanted them to go. The Law Commission had
recommended that in all cases of rape, uniformly, it should be
presumed by the court that the prosecutrix did not consent.
Whereas, after considering the pros and cons, listening to the
evidence and to the testimony of experts, various women's bodies,
the Select Committee came to the conclusion that this
presumption should be confined essentially to cases of, what can
be described as, custodial rape. As for example where a woman is
in the custody of a police officer and the alleged rape takes place
within the police station. I do not agree with the viewpoint of my
 hon. colleague, Mr. Ghanshyambhai Oza. that this will be abused.
Well, cases of abuse may be there. But because of these
exceptional cases of abuse, it would be wrong to put this burden
of proving want of consent on the victims of rape. We know the
famous Mathura case, which really sparked off the whole thing.
In that case, the accused was acquitted only because the woman
could not prove that she had not consented. The burden of
proving that she did not consent was on the woman, even though
the incident took place inside a police station. Therefore, in that
particular circumstance, in that particular situation, I should think
that the presumption of want of consent, as is now being
provided, is the right approach…”

Shrimati Roda Mistry:

“…Madam Vice-Chairman. there is a clause— inserted as a new

section 114A in the Indian Evidence Act of 1872—and this relates
to consent or absence of consent. Madam, we are not man-haters;
we do not wish to be against men in any form. But we feel that it
will be giving to much of liberty to women by saying here that if
a woman says that she is raped, "it shall be accepted." Here there
is an element of danger and so we should allow the court to decide
and, therefore, it should be said "It may be considered" and not "It
shall be considered." This change must be min this clause…”

v) [RSD – 06.12.1983]

Minister of State in the Ministry of Home Affairs (Shri P.

Venkatasubbaiah):

“Lastly, there is a legal lacuna in section 114A of the Indian

Evidence Act. If, as it is, the girl's evidence is taken prima facie as
 correct, there is a risk of false prosecution because it happens;
everybody knows. Suppose you are sitting in your chamber or
you are (sitting in your home and a girl enters with a man. The
girl embraces and kiss you and the man takes photographs and
then she charges you saying, "He tried, to rape me". Sir, if this
statement prima facie is taken as evidence, then I do not know
where our Members will be. Sir, from my experience, I can tell
you.”

Shri B. Krishna Mohan:

“…When the rape victim herself testifies, what more evidence is

required? Fortunately, the Supreme Court has made it very clear
that the sole testimony of the rape victim is enough for ordering
conviction and imposing punishment. So it should be the guiding
principle to all courts. I hope they will give due credence to the
evidence of the rape victim and see that adequate punishment is
given to the accused…”

Shri P. Venkatasubbaiah:

“…Sir, when you are in your chamber, some lady with some
gentleman may come and take photographs. It is not as simple as
that. Section 114A says: "In a prosecution for rape under clause (a)
or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of
sub-section (2) of section 376 of the Indian Penal Code, where sexual
intercourse by the accused is proved.. ." It is not taking photographs
of kissing. Only when the sexual offence is proved, only then this
section will apply. So, Sir, flimsy grounds or the things that Mr.
Chakraborty imagines will not be taken cognizance of...”
 vi) [LSD – 19.03.2013]

Shri A. Sampath:

“Madam, it is because of the Mathura rape case that the first

change in the CrPC, the Evidence Act, as also in the provisions of
IPC happened. The change happened because of the lady
Members of this House. They stalled the proceedings of this House
for four days continuously. They were in the well of the House
disrupting the business of this House. Late Comrade A.K.
Gopalan’s wife Comrade Susheela Gopalan was one among them. I
hope you would remember those days when this happened in this
House. Why was Section 114A of the Evidence Act enacted? It was
enacted because even the apex court of this nation was not in
favour of the victim, even though that victim was only 16 years of
age and a tribal girl.

5. Rajya Sabha, Department-Related Parliamentary Standing

Committee on Home Affairs, in its 167th Report on The Criminal Law
Amendment Bill (2012) (Presented to the Rajya Sabha on 01.03.2013)

It was suggested that Section 114A of the Indian Evidence Act (IEA)

should be completely dispensed away with as it is being misused

heavily to convert consensual sex into rape cases.