The newly-added S. 114-A deals with cases of prosecution for rape under clauses (a), (b), (c), (d), (e) or (g) of S. 376(2) of the Indian Penal Code, where sexual Intercourse by the accused is proved, and the question before the Court is whether such intercourse was with or without the woman’s consent. In such cases, if the woman, in her evidence, states before the Court that she did not consent, the Court must presume that she did not so consent.
This new provision (inserted in 1983) has brought about a rather radical change in the Indian Law relating to rape cases.
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Formerly, the rule was that corroboration of the victim’s version was not essential for a conviction, but as a matter of prudence, it would have to be established if the mind of the judge, unless circumstances were strong enough to make it safe to convict the accused without such corroboration. As observed by the Supreme Court, although the victim of a rape cannot be treated as an accomplice, her evidence is to be treated almost like accomplice evidence, requiring corroboration. (Sk. Zakir v. State of Bihar, 1983 Cri. L.J. 1285)
Now, of course, the position is different, and S. 114-A raises a presumption in favour of the rape victim.
The following three conditions must be satisfied before the presumption contained in S. 114-A can be raised:
(a) It should be proved that there was sexual intercourse.
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(b) The question before the court should be whether such intercourse was with or without the consent of the woman.
(c) The woman must have stated, in her evidence before the court that she had not consented to the intercourse.
This presumption would apply not only to rape cases, but also to cases of attempted rape, as for instance, when the victim was disrobed and attempts were made to rape her, which, however, could not materialise because of intervening circumstances. (Fagnu Bhai v. State of Orissa, 1992 Cri. L.J. 1808)
In a case of alleged gang rape of a girl above the age of 16, the F. I.R. was lodged seven days after the occurrence. The girl admitted that she was desirous of marrying one of the accused, and the chemical examiner’s report ran counter to any sexual intercourse. In the circumstances, it was held that the presumption under S. 114-A could not be invoked. (Sharrighan v. State of M.P., 1993 Cri. L.J. 120)
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Lastly, it may be noted that the presumption under S. 114-A can be drawn only when the accused says that he indulged in sexual intercourse with the consent of the girl. If the case of the accused is not that such intercourse was had with her consent, no presumption can be drawn under the section. (Ravindranath v. State of U.P., 1991 Cri. L.J. 31)