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Burden of Proof in Rape Cases

8 min read

By K. Manoggnya Reddy

Published On: October 8, 2021 at 13:19 IST


In India, survivors of rape face many barriers to obtaining justice and vital support services. Several reforms were recommended after the Nirbhaya incident in Delhi in 2012 and have not been fully implemented. Women and girls who survive sexual violence often suffer humiliating treatment at the hands of the police, courts, and medical professionals. They are also at risk of experiencing inadequate protection. The lack of support and justice for victims and witnesses during criminal trials can create barriers to justice.

But even after facing all these difficulties and still going through all the discrimination finally reaching out to the judicial system for obtaining justice there is an even bigger issue of proving that you are indeed a victim of the offence committed against you. One of the basic steps is laying down evidence and the burden of proof.

What is the Burden of proof? On whom does this burden of Proof is on? After all these, does the victim still need to through more humiliation and all kinds of tests to just prove that an offence has been committed against her which left the victim broken and destroyed?

Concept of Consent in rape cases

In a controversial judgement of Mahmood Farooqui vs State of Delhi[i], the Delhi high court has acquitted Peepli Live’s director Mahmood Farooqui of rape charges.

The argument for acquittal was that the victim merely resisted the sexual assault and the concept of ‘negation of consent’ was not clear. This has sparked a debate on how consent should be implied when one says no in a hesitant manner.

Consent is the only principle that provides any kind of difference between sexual intercourse and rape. In most cases, it is difficult to prove consent due to the lack of eyewitnesses. In the Indian Penal Code, Section 375 states that an offence is considered as rape if the consent of the women is not obtained or is obtained by putting someone in fear of their life or their physical integrity. In Section 375 as explained, consent refers to – an agreement that a woman voluntarily gives up before a specific sexual act is performed. This means that a woman may have agreed to participate in the act if she says so verbally or in non-verbal communication.

To put in simple words, Consent must be voluntary, verbal, or non-verbal. The person who gives consent must be capable of giving it.

Burden of proof under the Indian Evidence Act

The Law of Evidence is a vital piece of legislation that supplements the Court’s proceedings. It provides certain principles regarding ‘evidence’ which establishes a claim and enables the Court to make a just decision. Documentary or oral evidence should be provided before the Court to show or disapprove of both parties’ contentions. The rule of evidence requires the parties to put the best evidence in front of them to establish their case beyond a reasonable doubt.

The concept of burden of proof is based on the idea of onus probandi and factum probans. The burden of proof remains constant, while the onus shifts from one party to another.

The facts that are needed to be proved are those that are not self-evident. In the case of Jarnail Sen Vs State of Punjab[ii], it was observed that in case of failure on part of prosecution to add satisfactory evidence to discharge the burden of proof on them then they cannot depend on the evidence adduced by the accused for their defence.

The principle remains the same in criminal cases, which is that the burden of proof is on the prosecutors to prove that the accused committed a crime. If they fail to do so, the accused is entitled to be acquitted. The Supreme Court has stated that putting the burden of proof on the wrong person could have a negative effect on the judiciary.

Section 102 of Indian Evidence Act, aims to find the party which has the burden of proof, and that it is upon the one who asserts a fact rather than the one who objects or denies it. The burden of proof lies on the party whose claims will fail or be rejected if there is no evidence provided.

Section 103 imposes the burden of proof on the party who wishes the court to believe and act upon a fact. The principle does not apply to the fact that a particular statement is not true or that there is a negative or affirmative aspect to it.

Section 104 states that, when admissibility of a particular fact depends on the existence and admissibility of another fact, the party that wants to prove it will have to make the subsequent fact admissible.

In cases of custodial rape, dowry death, suicide of a married women, and absence of consent in rape, the burden of proof is on the accused. This is in contrast to the principle of the burden being placed on the accused.

Burden of Proof in Rape Cases in different countries

To prove that she was a victim of rape, a woman does not need to prove that she was actively resisting the attack that was being committed on her. And these factors not being prevented does not indicate that a woman has already given consent. This has been stated by the Supreme Court’s in its previous rulings. It stated that it is not necessary for a victim to resist a rape attempt actively keeping in regard for situations where the victim might fear for her life or even death.

The concept of Consent is also the same in Canada and the UK. Both the Canadian Criminal Code as well as the UK’s Sexual Offences Act, 2003, laws explicitly define consent. The Canadian Criminal Code (Section 273) requires Consent has to be categorically given. Nothing short of voluntary consent or agreement would be acceptable. The burden of proof is on the accused to show that he or she took the necessary steps to ensure that the victim was consenting to the sexual activity. Which is similar to the principles in the UK’s Sexual Offences Act.

In Australia too, it has been stated that consent is a determinative factor in deciding on sexual assault charges. The burden is on the accused to show that he or she took the victim’s consent. In certain countries, the term rape refers to the presence of coercive circumstances instead of the lack of consent. This is because these instances usually occur when the victim does not consent to sexual activities.

In India, courts have a duty to presume that consent is absent if a claim is made by the victim, this is in accordance with the Indian Evidence Act 114A. This is a mode of ascertaining consent that is used in every civilized legal system. Surprisingly, This section was only added after the Supreme Court acquitted the accused in the Mathura rape case (Tukaram Vs State of Maharashtra)[iii] in 1978.

After this case was ruled out, there was a huge outcry since the accused was acquitted on the grounds that the victim did not resist during the incident and there were no visible signs of resistance meaning that the consent of the victim was not negated while committing the act which led to an amendment of the Section 114A of the Evidence Act in 1983.

After the victim has alleged absence of consent, the onus is on the accused to dispel the presumption against him. The victim does not have to establish any further evidence to prove absence of consent for the accused to be presumed guilty. This presumption is vested in favour of the victim in such cases.

In many cases, the Supreme Court has held that the burden of proof is on the accused to prove that the victim did not consent to the sexual activity. In this case, the victim’s testimony may not be the sole basis for a conviction. Other factors such as consistency of the victims statements and other factors that are laid down in the Evidence Act may also be taken into account.

The judgement in the Farooqui case[iv], which deals with the issue of rape, has made several observations that will have ramifications in cases pending before the courts. The Supreme Court has sought to clear up its controversial ruling on the meaning of consent for sexual assault victims, which suggests that a woman would have to say no in verbal words in and any hesitation shall amount to consenting to the sexual assault that is being committing on her at that moment.

This kind of observation could transfer the burden of proof of sexual consent to the victim, which could be very disastrous to certain groups of victims who may be in a disadvantageous situation. Instead of providing a strong defence, this will make the victims weak and vulnerable.

This trial would discourage victims from filing a complaint, as it would shift the onus on them instead of the accused. It would also make them feel ashamed and less safe, especially in a society like India where rape is considered as a mark of disgrace. This will create a chink in their already vulnerable armor.


In terms of Jurisprudence, the burden of proof lies on the individual who claims to have proof of the existence of a fact.

Generally, If the prosecution states that some kind of offence has been committed against them, the onus is entirely on the prosecution to prove it. But, in a rape case if your defence is where the girl has said ‘yes’, the burden of proof falls on the accused to prove that she did consent.

So, the burden is completely on the accused to prove that the victim did give consent during the occurrence of the events. The proof of this offence is established by cross-examining the complainant. The method of medical evidence is collected and used to establish/prove the fact that the accused was indeed guilty of committing non-consensual intercourse with the alleged victim.


K. Manoggnya Reddy is a student of BBA.LLB at ICFAI Law School. She is the kind of person who is hardworking not to achieve dreams but to collide with the reality. She is a typical student who likes to keep being positive most of the time. Achieving good results is her motivational drive. She is excited to improve and correct her mistakes. She took up law studies to achieve a stable career and now thriving to achieve the respect that she deserves from the society and to give the service the society deserves in return.

Edited by: Aashima Kakkar, Associate Editor, Law Insider


[i] Mahmood Farooqui Vs State of Delhi, New SC No. 1590/2016.

[ii] Jarnail Singh Vs State Of Punjab, 1996 AIR 755.

[iii] Tukaram Vs State of Maharashtra, 1979 AIR 185.

[iv] Mahmood Farooqui Vs State of Delhi, New SC No.1590/2016.