This article is written by Anushka Singhal, of Symbiosis Law School, Noida. In this article, the author discusses the concept of burden of proof in anti-rape laws. She tries to throw some light on the provisions under the Indian Evidence Act as well as the POCSO Act. 


The Indian Evidence Act, 1872 lays down provisions for evidence under criminal law. The Act is divided into ten chapters and comprehensively explains the provisions for examining the witnesses, the burden of proof, the presumption of documents, etc. After the case of Tukaram v. the State of Maharashtra (1978), popularly known as the Mathura Rape case, the Indian Evidence Act was amended and Section 114-A was inserted via the Criminal Law Amendment Act, 1983. From then the onus of proof has been shifted from the prosecutrix to the defendant. Let us discuss the concept of proof in anti-rape laws.

Definition of rape

Rape has been defined under Section 375 of the Indian Penal Code, 1860. A man is said to commit rape if he engages in sexual intercourse with a woman-

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  1. Against her will.
  2. Without her consent.
  3. With her consent, the consent was obtained by putting the victim in fear.
  4. With her consent but when the woman believed that he was his husband but he was not.
  5. With her consent but her consent was obtained when she was intoxicated and did not understand the consequences of her consent.
  6. With or without her consent when she is under the age of sixteen years.

Any sexual intercourse falling under either of these categories would qualify as rape and the man would be punished in accordance with Section 376 of the Indian penal Code, 1860 with imprisonment of either description for a term which shall not be less than ten years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. If the rape is committed with his own wife who is not under the age of 15 years, the man can be imprisoned with a term of not less than 2 years, a fine, or both. Under the same section, there are separate provisions for punishing a police officer or a public servant. Following are the acts which would attract punishments under Section 376-

  1. Wherein a policeman commits rape when on duty i.e. in the police station, station house or with any woman under his custody.
  2. Wherein a public servant commits rape taking advantage of his position.
  3. Wherein rape is committed by the person in charge of a remand home, prison or hospital.
  4. Wherein the rape is committed on a pregnant woman.
  5. Wherein a girl under 16 years is raped.
  6. Where there is gang rape.

Burden of proof under the Indian Evidence Act

Under the Indian Evidence Act, 1872 the burden of proof is explained. According to Section 101 of the Act, the burden of proof lies on the person making any claim or asserting any fact. Whoever wants the court to give any decision in his favor, must prove that the facts pertaining to that request exist. For example, if A wants to approach the court to get a verdict in his favor, he must prove the facts that he is asserting. Along with it, Section 101-110  lay down provisions as to the burden of proof. Section 114 of the Indian Evidence Act says that the court may presume certain things. In continuation of this Section, we saw the insertion of Section 114-A which presumes the absence of consent in certain prosecutions of rape. Here are the laws pertaining to the burden of proof.

Section 102

This section explains that “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” The burden of proof always lies on the party who has challenged the fact, rather than the party that denies the actual fact or evidence in the case.

Section 103

According to Section 103, the burden of proof of a fact lies to the party who is able to present in the court and the court to believe that such fact comes in the existence of the case unless or until a law recognises itself.

Section 105

Section 105 is the most important section under the burden of proof. According to this section, if the person is claiming that his action comes under any exception laid down under the Indian Penal Code, he has to prove the same and the court shall presume the absence of such circumstance. 

Section 106

This Section lays down that the burden of proving facts especially within the knowledge of some person lies on the person asserting such fact. 

Section 114-A

Section 114-A of the Indian Evidence Act lays down that there will be a presumption of absence of consent in certain instances of rape cases. It says that if rape has been committed under any of the clauses of sub-section (2) of Section 376 of the Indian Penal Code, and the woman states in her evidence that she had not given consent,  the court shall presume that the woman did not consent.

History of Section 114-A 

The Mathura Rape case was the reason behind the insertion of this section. The decision of the Supreme Court, in this case, was widely ridiculed in the country. Thus, the government decided to revamp the laws and it passed the Criminal Amendment Act, 1983. Let’s delve further into this case.  

Herein, a girl named Mathura fled with her boyfriend Ashoka. Her family registered a complaint against her boyfriend. The girl, her boyfriend, her brother Gama and other relatives were called to the police station to settle the matter. The investigation was completed and everybody was asked to go back. But Mathura was asked to stay back. It was alleged that a police constable Ganpat took Mathura to a chhapri and raped her. After he had satisfied his lust, another policeman Tukaram came there and fondled her private parts. The case went to the Sessions Court which held that the policemen were not guilty. They said that Mathura might have invented the story. The High Court took a different stance on the case. It said that mere passive surrender of the body would not amount to consent on the part of the plaintiff. The Court commented that the overtures might have come from the policemen themselves and not from Mathura. Further, on appeal, the Supreme Court overturned the decision of the High Court. It held that she submitted her body to the policemen as she did not resist. The Hon’ble Court said that the “onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts.” The judgment was criticized and there was an uproar in the country. Gender-based violence came to the forefront and it was at that time Section 114-A was inserted in the Indian Evidence Act. It was substituted by the Amendment Act of 2013 and then recently by the Amendment Act of 2018.

Case laws

The courts have tried to define ‘consent’ and have also tried to explain that if there is evidence, the presumption cannot negate that evidence outrightly. Let us discuss some important rape cases to understand these concepts. 

Rachna Singh v. NCT of Delhi, (2020)

This was a recent judgment by the Delhi High Court. Herein the accused of raping a woman was acquitted by the Trial Court. Aggrieved by this decision of the Trial Court, the victim knocked at the doors of the Delhi High Court saying that there is a presumption of guilt under Section 114-A of the Indian Evidence Act. The High Court rejected this averment and said to prove the presumption of guilt under Section 114-A one needs to first prove that there was sexual intercourse. As the conduct of the woman was itself tainted in this act as she refused to undergo an internal examination as well as she made a number of calls to the accused from time to time. The Court held that as her conduct did not match her allegations, and no sexual intercourse could be proved therefore the accused cannot be held guilty. 

Mohd. Eqbal v. State of Jharkhand, (2013)

This was a gang rape case. A girl was forcibly kidnapped from the vegetable market and then raped by two boys. The Court in this case held that there is a presumption as to the absence of consent in case of gang rape as there can be no consent in such cases as no one would give consent to two persons at the same time. Thus, specifically in gang rape cases, no consent can be presumed and Section 114-A would directly apply. 

State of Rajasthan v. Roshan Khan, (1947)

This case is a good example of ‘presumption of guilt’ under this Section. In this case, a girl was kidnapped by six boys and then was raped. She said that she did not consent to sexual intercourse. As the sexual intercourse was proved in this case, the Court applied the presumption of guilt factor and the boys were jailed. 

State of Maharashtra v. Chandraprakash Keval Chand Jain, (1990)

The Hon’ble Court, in this case, held that a victim of rape is undoubtedly a competent witness under Section 118 of the Indian Evidence Act. it is not necessary that her testimony shall be corroborated with a competent witness. The court held that the same degree of caution should attach to her as it would have been attached to an injured person. 

Burden of proof under the POCSO Act

Under the Protection of Children from Sexual Offences Act, 2012 (POCSO), the burden of proof is on the accused himself. The concept of ‘guilty until proven innocent’ is followed under this Act. Section 29 of the POCSO Act lays down “When a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case shall presume the accused to be guilty.” As the conviction rate of the accused was lower in the sexual offences against children, the legislature shifted the burden of proof on the accused so as to ensure justice. A recent judgment of the Jammu and Kashmir High Court held that the burden of proof is on the accused even after the pre-trial stage. In the case of Badrinath v. Union Territory of J&K (2020), the High Court took the opposite decision to the Delhi High Court, which held in the case of Dharmander Singh v. State (Government of NCT of Delhi) (2020), which maintained that the presumption of guilt against the accused under Section 29 of the POCSO Act can only be adopted by the court on the commencement of the trial. The onus shifts on the accused as it is shifted under Section 114-A of the Indian Evidence Act.


Justice should be of paramount importance. Our judiciary and legislature ensure the same by adopting such laws which live up to the spirit of the constitution. The conviction rates under anti-rape laws were getting low and justice was not being ensured. Therefore amendments were made to the Indian Evidence Act. The onus which was usually on the victim has now shifted to the accused in the cases of rape. The POCSO Act is also a special Act when it comes to the protection of children against sexual offences. The onus here too is on the accused. The legislature is trying to solidify the anti-rape laws and shifting the onus of proof on the accused is just a step of that effort. 


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