Project on

RULE OF PRESUMPTION IN RAPE CASES

Ms. Vinita Tripathi

Faculty, Evidence Law

SUBMITTED BY:

Abhinav Gupta

Roll no. 03

SECTION A

Semester VII, B.A. LL.B (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur – 492002 (C.G.)

First and foremost, I would like to thank Ms. Vinita Tripathi, faculty Evidence Law,
Hidayatullah National Law University Raipur, for creating opportunities to undertake such a
valuable project. He helped me in preparing the project through his aura and granting his
precious time for consultation, discussion and giving suggestions over this project. He had also
helped me in improving the perception regarding the study of topic in its vast resources and in
broader way. He had cleared all doubts and uncertainty towards this project. Therefore, I want to
thank him, for all his efforts and cooperation which he conferred to me.

I also owe my gratitude towards University Administration for providing me all kinds of required
facilities with good Library and IT lab. This helps me in making the project and completing it.
My special thanks to Library Staff and IT staff for equipping me with the necessary data and
websites from the internet.

Abhinav Gupta
Roll no: 03
Semester VII
Sec. - ‘A’

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CONTENTS

_Page
1. Acknowledgements 02

2. Introduction 04
a. Objectives 05
b. Sources of Data
05
c. Mode of Citation
d. Scope and Limitation 05

3. Presumption in Criminal Law for Crimes Against Women 06

4. The Case Study 08

4. Conclusion 15

5. Bibliography 16

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INTRODUCTION

Presumptions can be defined as an affirmative or negative inference drawn about the truth or
falsehood of a fact by using a process of probable reasoning from what is taken to be granted. A
presumption is said to operate where certain fact are taken to be in existence even there is no
complete proof. A presumption is a rule where if one fact which is known as the primary fact is
proved by a party then another fact which is known as the presumed fact is taken as proved if
there is no contrary evidence of the same. It is a standard practice where certain facts are treated
in a uniform manner with regard to their effect as proof of certain other facts. It is an inference
drawn from facts which are known and proved. Presumption is a rule which is used by judges
and courts to draw inference from a particular fact or evidence unless such an inference is said to
be disproved.

Presumptions can be classified into certain categories:

● Presumptions of fact.

● Presumptions of law.

● Mixed Presumptions.

Presumptions of fact are those inferences which are naturally and logically derived on the basis
of experience and observations in the course of nature or the constitution of the human mind or
springs out of human actions. These are also called as material or natural presumptions. These
presumptions are in general rebuttable presumptions.

Presumptions of law are those inferences which are said to be established by law. It can be
subdivided into rebuttable presumptions of law and irrebuttable presumptions of law. Rebuttable
Presumptions of law are those presumptions of law which hold good until they are disproved by
evidence to the contrary. Irrebuttable Presumptions of Law are those presumptions of law which
are held to be conclusive in nature. They cannot be overturned by any sort of contrary evidence
however strong it is.

Mixed Presumptions are certain inferences which can be considered as observations of law due
to their strength or importance. These are also known as presumptions of mixed law and fact and
presumptions of fact recognized by law.

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 Objectives

● To discuss the concept of ‘Rule of Presumption in Rape Cases’ under the Indian
Evidence Act,1872 with the help of the various provisions.
● It is also an objective of this project to study the landmark cases on Rule of Presumption
delivered by the Hon’ble Supreme Court and Hon’ble High Courts.

Sources of data

In order to accomplish the objective stated above the methodology followed is of descriptive
nature based on secondary sources, i.e., books and electronic sources (internet).

Mode of Citation

The project follows the uniform citation of Bluebook Standard form of Citation 19th edition.

Scope & Limitation

The project studies the ‘Rule of Presumption in Rape Cases’ only in the context of Evidence law
and covers only the Indian society as its area of research.

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PRESUMPTION IN CRIMINAL LAW FOR CRIMES AGAINST WOMEN

Presumption in crime of Rape (IPC 376)

Section 114A of Indian Evidence Act and the following commentaries are taken from 185 th
report of Law Commission. The report discusses various proposed amendments, and gives the
present text of the section and rationale behind its present form.

Section 114A: This section deals with ‘presumption as to absence of consent in certain
prosecutions for rape. It reads as follows:

“114A. In a prosecution for rape under clause (a), clause (b), clause (c),
clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), 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.”

This section was inserted by the Criminal Law (Amendment) Act 1983 (43 of 1983) w.e.f.
25.12.1983. This Section was introduced because of the increasing number of acquittals of
accused in cases of rape. If she had been raped at a place where none could have witnessed – as
it happens in most cases – the prosecution would find it difficult to prove the offence beyond
reasonable doubt. Sometimes, medical or DNA evidence is available and more often, it is not
available.1

The law before this amendment of 1983 virtually treated a prosecutrix, a victim of rape as an
accomplice requiring her statement to be corroborated as a matter of prudence. An Allahabad
case first tried to emerge out of the impasse by laying down that the cases of rape involving bad
reputation of the family of the victim herself, seldom are brought to court, and if brought, are

1
http://menrightsindia.net/2016/05/presumptions-in-law-in-crimes-against-women-and-matrimonial-law.html

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with greatest reluctance and therefore if a girl does not come forward and alleges that she had
been raped, her evidence should carry more weight than the evidence of an ordinary witness.
This decision did not lay down however that in rape case the evidence of the prosecutrix needs
no corroboration. Nor could it could lay down so because of the host of Supreme Court decisions
laying down the rule that as a matter of prudence court should search for such corroboration. In a
Supreme Court case however, it was held that conviction on a charge of rape on uncorroborated
testimony of the prosecutrix was legal.2

The first in the lute was first noticeable in a Supreme Court case which stated that in rape cases.
Courts must bear in mind human psychology and behavioral probability when assessing the
testimonial potency of the evidence of the victim-prosecutrix. The inherent bashfulness, the
innocent naivete and the feminine tendency to conceal the outrage of the masculine sexual
aggression are factors relevant to improbabilise the hypothesis of false implication. The tender
years of the child coupled with other circumstances may render corroboration unnecessary but
that is a question of fact. In another case the Supreme Court said that hardly a sensitized judge
who sees the conspectus of circumstances in its totality rejects the testimony of rape victim
unless there are strong circumstances militating against its veracity

The presumption is mandatory but is rebuttable

There are several judgments of the High Courts which have applied sec. 114A in cases of rape
under sec. 376 of the Indian Penal Code. The next chapter discusses some important cases
dealing with Section 114A of Evidence Act.

2
https://www.lawteacher.net/free-law-essays/criminal-law/evidence-law-topic-discuss-10-cases-law-
essays.php#ftn1

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 THE CASE STUDY
I. Gagan Bihari Savant vs. State of Orissa3

In the case of Gagan Bihari Savant, the evidence of the prosecutrix showed that she had
protested and struggled while she was subjected to forcible sexual assault by accused persons. It
was held that evidence showed absence of consent on the part of the victim,
even apart from the legal presumption under sec. 114-A.

The Supreme Court confirmed the conviction of all the persons involved in the gang-rape. This
position subsequently changed in the next case.

II. Dilip vs. State of M.P4

In the 2001 case of Dilip, the presumption was raised but it was held that in view of the
infirmities in the evidence, the place of rape was not proved.

It was held that while the sole testimony of the prosecutrix could be acted upon and made the
basis of conviction without being corroborated in material particulars, in view of the infirmities
in the sole testimony of the prosecutrix which contradicted the medical evidence as well as the
evidence of the aunt of the victim to whom she had narrated the incident soon after the
commission of the rape, it was difficult to accept that consent was not there. On the question of
consent, though presumption under sec. 114A was raised, no finding, it was held, need be
recorded because of the finding that the prosecutrix was a willing party. The appeal was allowed
and the appellant was acquitted in the Supreme Court.

III. State Of Orissa Vs. Damburu Naiko And Another5

The case of prosecution is that on the fateful day the victim Bhotruni along with other girls,
PWs. 2 to 4 went to Papadahandi to witness Dasahara festival. At about 4.00 p.m.while they
were returning home, PW. 1, the victim was ahead of them and when they reached inside the
forest, the appellants and two others gagged the mouth of PW. 1 and kidnapped into the forest,
covered her eyes with a piece of cloth and threatened to kill her if she would raise cries.

3
1991(3) SCC 562
4
2001(9) SCC 452
5
1992 AIR 1161, 1992 SCR (2) 393

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 They made her to lie down on the ground and raped her one after another. PWs. 2 to 4 ran back
Papadahandi and reported, to the police on duty in the festival, of the incidence and PW. 5, the
constable came along with them. They found the victim's eyes covered with a piece of cloth and
that she was crying. She was taken to Papadahandi. She laid the complaint. The accused were
arrested on October 31, 1977.

Judgment

The Court was of the view that it is not necessary that there would be corroboration to the
evidence of the victim of rape. If her evidence inspires confidence to be truthful that itself would
be sufficient to convict the accused. We need not see corroboration to the evidence of PW. 1. She
was a simple village girl and she will not leave out her own assailants and implicate falsely other
innocent persons with the allegation that she was raped by them. Further it said that even if they
seek for corroboration the injuries on her private parts; medical evidence of the doctor and her
first information report provides such corroboration.

The court wholly accepted her evidence as truthful. Thus the appeal was accordingly allowed.
The judgment of High Court and the order of acquittal of the respondents were set aside. The
judgments and convictions and sentences recorded by the trial court and affirmed by the Sessions
Courts were restored and the respondents were made to surrender and serve out the sentences.

IV. Bharwada Bhoginbhai Hirjibhai Vs. State Of Gujarat6.

In this case, the incident occurred on Sunday, September 7, 1975, at about 5-30 p.m. at the house
of the appellant. The evidence of P.W. 1 and P.W. 2 shows that they went to the house of the
appellant in order to meet his daughter (belonging to their own age group of 10 or 12) who
happened to be their friend. The appellant induced them to enter his house by creating an
impression that she was at home, though, in fact she was not.

Once they were inside, the appellant closed the door, undressed himself in the presence of both
the girls, and exposed himself. He asked P.W. 2 to indulge in an indecent act. P.W. 2 started
crying and fled from there. P.W. 1 however could not escape. She was pushed into a cot, and was
made to undress. The appellant sexually assaulted her. P.W. 1 was in distress and was weeping

6
1983 AIR 753, 1983 SCR (3) 280

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 as she went out. She however could not apprise her parents about what had transpired because
both of them were out of Gandhinagar (they returned after 4, or 5 days).

Judgment

The Supreme Court stated that “in the Indian setting, refusal to act on the testimony of a victim
of sexual assault in absence of corroboration as a rule is adding insult to injury. Why should the
evidence of the girl or the woman who complains of rape or sexual molestation be viewed with
the aid of spectacles fitted lens tinged with doubt, disbelief or suspicion?. To do so is to justify
the charge of male chauvinism in a male dominant society.”

On principle the evidence of the victim of sex assault stands on par with evidence of injured
witness. Just as a witness who has sustained injury is not likely to exculpate the real offender, the
evidence of a victim of sec offence is entitled to great weigh, absence of corroboration
notwithstanding.

V. State Of Maharashtra Vs. Chandraprakash Kewalchand Jain.7

A brief narration of the facts may be apposite. In this particular case one M aged fell in love with
Shamimbanu, aged 19 left their residential town and entered into a marriage through a Kazi. The
accused police officer found them in a hotel room, brought them to the police station and then on
the next night sent the girl to another hotel. Having thus separated the couple and finding the girl
thoroughly helpless forcibly removed her “kurta" and threw it away. He gagged the girl’s mouth
and threatened her with dire consequences if she did not submit. He then threw the girl on the cot
and forcibly removed her “salwar" and denuded her. He then had sexual intercourse with her,
notwithstanding her protestations.

After satisfying his lust, the accused left threatening that he would bury both of them alive if she
complained to anyone.

Judgment

The Supreme Court was of the opinion that “the nature of evidence required to lend assurance to
the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each
case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a
conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the

7
1990 AIR 658

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 totality of the circumstances appearing on the record of the case discloses that the prosecutrix
does not have a strong motive to falsely involve the person charged, the Court should ordinarily
have no hesitation in accepting her evidence. They further stated that, their should be no doubt
that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted.
The degree of proof required must not be higher than is expected of an injured witness."

Hence the court observed that a prosecutrix of a sex-offence cannot be put on par with an
accomplice. She is in fact a victim of the crime.

VI. Santana Ghosh V. State.

This is an interesting Calcutta High Court case decided on 13-11-1986 (long after section 114-A
having retrospective effect being brought into statute) where a girl Santana by name gave
evidence that the accused after forcibly ravished her consoled her saying that he would marry
her. Santana believing the promise did not disclose anything about the sexual assault. Later she
allowed the accused to have sexual relations with her resulting in her being pregnant.

Judgment

The learned Judge in his considered judgment searched for corroboration of the testimony and
having found it upheld conviction. The court stated that “the Evidence Act being retrospective,
no matter when the sexual union took place, the version of the girl was enough to tilt the balance.
Search for corroboration was an exercise in futility.

VII. Banti Alias Balvinder Singh Vs. State Of Madhya Pradesh.8

The prosecutrix was near a culvert of village Shyampur, a jeep overtook her. The jeep was being
driven by accused Jagtar Singh. Three more Sikhs were seated in the jeep. Accused Jagtar Singh
was a contractor in the village in which Kuntibai lived i.e. in village Nathela. He offered to give
lift to Kuntibai. Kuntibai declined the offer. It was further the prosecution case that two of the
Sardars seated in the jeep then forcibly dragged Kuntibai into the jeep. Kuntibai whisked away to
Chhindari camp, being the work site of accused Jagtar Singh. She was forcibly made to consume
liquor at the camp.

A fifth Sikh by name Banti (appellant in the present appeal) joined the other Sikhs in the camp.
All the five Sikhs then forcibly ravished Kuntibai one by one on that night. On the following

8
1992 CriLJ 715.

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 morning Kuntibai managed to slip away and came to her own house in the same village. She
made a report (Ex. P-2) of the incident after 5 days i.e. on 25-8-1985 at 12.30 p.m. The said
report expressly named Jagtar Singh and Banti as two of the five ravishers.

Judgment

The court stated that having regard to the conduct of the prosecutrix in not making any kind of
complaint about the alleged incident to any body for five days coupled with late recording of
report by her after five days with false explanation for the delay, in the context also of the lax
morals of the prosecutrix, the court found it is very unsafe to pin faith on her mere word that
sexual intercourse was committed with her by five accused persons or any of them. The court
also found it difficult to believe her version regarding her alleged abduction in the jeep.

Thus in the circumstances, the court held that the prosecution story was not satisfactorily
established and the presumption stood rebutted and accused acquitted.

VIII. Kuldip Singh And Anr. Vs. State Of Punjab.9

The prosecutrix and her mother, as usual, on 8-12-89 at about 3.00 p.m. were cutting grass for
the cattle from the field. This field belongs to Chet Singh son of Chattar Singh Jat, resident of
Sante Majra and Arhar (cereal) crop was standing in the field. She was cutting the grass on the
eastern side and her mother was cutting the grass on the western side of the field. A man who is
known as Fauji came from the side of motor situated near eucalyptus trees.

He told her that he’s am seeing her for the last three days, today is the last day. He caught hold of
her from her left arm and threw away the khurpa. She fell down on the ground. Then he broke
the string of her Salwar and against her will blackened his face with her’s (committed rape).
Then another person came at the spot, who had a new tubewell nearby. He also has blackened his
face with her (committed rape) against her will and consent. And when she raised alarm both the
persons ran away.

Judgment

The High Court had acquitted the respondents therein on the ground that the victim identifying
the said respondents could not be relied upon as there was no corroboration to her evidence and

9
II (2004) DMC 628.

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 that when there was a gang rape there could be several injuries on the person of the victim which
were absent. Therefore, the victim therein was held by the High Court to be a consenting party.

This was set aside by the Hon'ble Supreme Court. It was held that the victim was a simple village
girl and she would not leave out her own assail ants and implicate falsely other innocent persons
with the allegation that; she was raped by them. Besides, even if corroboration was sought the
injuries on her private parts: medical evidence of the doctor and her First Information Report
provide such corroboration. Her evidence was accepted as truthful. There to no reason for her to
falsely implicate the appellants. Thus the court found them guilty of committing rape, which was
affirmed.

IX. Pradeep Kumar V. State of Bihar.10

The appellant assured the second respondent that he would marry her, relying in this she
consented to sexual intercourse. When this went on for some time, the appellant took the second
respondent to a temple where in the presence of deity he accepted her to be his wife and there
was an agreement of marriage entered into. Alleging that the accused was likely to get married
with some other lady, an FIR was lodged.

Investigation was undertaken and statements were recorded under s.164 of CrPC wherein it was
accepted that first with a promise of marriage, the accused had physical relationship with her and
then had married her. Since the accused disowned having ever married her, she was forced to file
the FIR. After investigation, charge sheet was filed wherein it was indicated an offence
punishable under Ss.376 and 406 of IPC was made out.

Judgment

The case first reached the trial Court, then it went to the High Court and finally to the Apex
Court. The case came up before a Division Bench of the Apex Court consisting of Hon’ble
Justice Dr. Arijit Pasayat and Hon’ble Justice D.K.Jain. The High Court affirmed the order of the
Trial Court of convicting the accused under Ss.376 and 406 of IPC.

Setting aside the order of the High Court, the Supreme Court held that a promise to marry
without anything more will not give rise to ‘misconception of fact’ within the meaning of s.90, it
needs to be clarified that a representation deliberately made by the accused with a view to elicit

10
AIR 2007 SC 3059.

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the assent of the victim without having the intention or inclination to marry her, will vitiate
consent. If on the facts it is established that at the very inception of making the promise, the
accused did not really entertain the intention of marrying her and the promise to marry held out
by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the
accused to exculpate him from the ambit of s.375 clause second.

In reaching this conclusion the court mainly relied on Jayanti Rani Pandas case. The Apex Court
asked the High Court to give a fresh look into the matter.

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CONCLUSION

The standard and onus of proof in the case of rape has not been changed by section 114A of the
Evidence Act. It has only created a presumption qua the consent of the prosecutrix. Section 114A
provides that in a prosecution for rape under sub-section (2) of section 376 of the IPC, when
there is an allegation of rape the question whether it was without consent of the prosecutrix, the
court shall presume that the she did not give her consent. In case of rape where it is established
that there had been intercourse, and if the prosecutrix states in her evidence before the court that
she did not consent, then the court shall presume that she did not consent.

The Evidence Act nowhere says that the victim’s evidence cannot be accepted unless it is
corroborated in material particulars. The victim is undoubtedly a competent witness under
section 118 of the Indian Evidence Act, and her evidence must receive the same weight as it is
attached to an injured in cases of physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an injured complainant or witness. What
is necessary is that the court must be alive to and conscious of the fact that it is dealing with the
evidence of a person who is interested in the outcome of the charge leveled by her. If the court
keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no
rule of law or practice incorporated in the Evidence Act which requires it to look for
corroboration of evidence. If for some reason the court is hesitant to place implicit reliance on
the testimony of the prosecutrix it may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of an accomplice.

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 BIBLIOGRAPHY

REFRRENCES BOOKS

1. Dhirajlal, Ratanlal. The Law of Evidence. Gurgaon: Lexis-Nexis, 2011

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● http://menrightsindia.net/2016/05/presumptions-in-law-in-crimes-against-women-and-
matrimonial-law.html
● http://www.legalservicesindia.com/article/article/presumption-as-documents-30-years-
old-532-1.html
● http://www.saveservices.org/sexual-assault/presumption-innocence
● http://www.legalserviceindia.com/articles/rape_laws.htm
● http://www.shareyouressays.com/119150/presumptions-in-rape-cases-under-section-114-
a-of-indian-evidence-act
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● https://blog.ipleaders.in/judiciary-interprets-consent-rape-cases/

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