Burden To Prove Lack Of Consent Rests On Prosecution And Never Shifts, Even Where Accused Admits Intercourse: P&H High Court

The Punjab and Haryana High Court has held that where a rape accused admits the factum of sexual intercourse, that admission does not relieve the prosecution of its obligation to establish the absence of consent, the burden on that issue resting throughout on the prosecution and never shifting to the accused. [2026 LiveLaw (PH) 276]

Acquitting the appellant in an appeal against a 2004 conviction, Justice Rupinderjit Chahal observed,

"...the appellant has admitted the sexual intercourse while setting up a specific plea that the same was consensual. Such admission, however, does not absolve the prosecution of its obligation to establish, by cogent, convincing and reliable evidence, that the intercourse was against the will of the prosecutrix and without her consent. The burden to prove the absence of consent rests throughout upon the prosecution and never shifts."

The finding came in direct answer to the State's submission that, the appellant having admitted intercourse, the burden to probabilise his plea of consent lay upon him and he had failed to discharge it.

The Court held instead that the principal question was whether the prosecution had proved beyond reasonable doubt that the admitted act was without consent, an answer turning substantially on the credibility of the prosecutrix, there being no eyewitness to the occurrence.

The prosecution case was that on the intervening night of 05/06.02.2004, the prosecutrix, whose husband worked as a truck driver was in her room with her two sons, aged about five and four, her parents-in-law occupying the adjoining room.

After she stepped out to relieve herself, the accused, armed with a kirpan, allegedly scaled the boundary wall, entered the room, threatened her and committed forcible sexual intercourse. On her raising an alarm, her father-in-law and mother-in-law reached the spot and the accused fled with the weapon.

The Additional Sessions Judge, convicted the appellant under Sections 376 and 450 IPC and sentenced him to seven years' rigorous imprisonment on each count with fines, the sentences to run concurrently.

The appellant denied the allegations but pleaded that the prosecutrix had herself called him to the house, opened the gate and taken him to her room, where intercourse took place with her free consent. He led no defence evidence.

Noting that the occurrence predated the Criminal Law (Amendment) Act, 2013, the Court set out Section 375 IPC as it then stood, and reiterated that the burden lies squarely on the prosecution to establish every ingredient of the offence beyond reasonable doubt.

A conviction under Section 376 IPC can rest on the sole testimony of the prosecutrix without independent corroboration, the Court held, provided that testimony inspires implicit confidence and is of sterling quality, invoking the attributes of a "sterling witness" laid down in Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21, which requires consistency from the initial statement to the deposition, the ability to withstand cross-examination of any length, and correlation with the recoveries, the weapon used, the scientific evidence and the expert opinion.

Relying on Tameezuddin alias Tammu v. State (NCT of Delhi), (2009) 15 SCC 566, the Court added that while the evidence of a prosecutrix must be given predominant consideration, accepting it even where the story is improbable and belies logic would do violence to the principles governing appreciation of evidence.

The prosecutrix deposed that intercourse was forcible and followed a struggle, and that the appellant caused an injury with the kirpan on her left hand which bled and stained her clothes.

Dr. Barinder Gill, who examined her soon after, deposed that no injury whatsoever was found anywhere on her body including her external genitalia, and reiterated this in cross-examination. PW-6 Hardeep Singh, the father-in-law, also admitted noticing no injury.

The Court acknowledged Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635, that the mere absence of injuries does not falsify an otherwise cogent testimony, a helpless submission under threat of a weapon not necessarily leaving marks, but held that principle "operates in a case where the prosecutrix does not herself set up a case of active physical resistance."

Here, a specific bleeding injury had been positively asserted and stood wholly unsubstantiated, making this "no longer a mere absence of corroboration but a positive circumstance affecting the intrinsic reliability of the prosecution version."

The occurrence was alleged to have continued for some time in a room where two small children slept, adjoining a room occupied by the parents-in-law, yet the children did not wake and nothing indicated the parents-in-law became aware until the alarm was raised after the act. No independent neighbourhood witness was associated, the Court noted.

Dr. Rajan Bhatti noticed multiple abrasions and scrape marks on the appellant. The Court held their evidentiary value inconclusive both ways, the prosecution led no evidence connecting them to the occurrence and the doctor offered no opinion on causation, but equally the prosecution offered no explanation for them.

The Court pointed that another witness did not witness the occurrence, his testimony being confined to what followed the alarm. The recovery of the kirpan on the appellant's disclosure established, at highest, the factum of recovery. The Chemical Examiner's report was of no assistance on the pivotal issue, intercourse being admitted.

Holding that the cumulative effect of these circumstances created a reasonable doubt, and that suspicion however strong cannot take the place of proof, the Court found that the evidence fell short of establishing beyond reasonable doubt that the admitted act was against the will of the prosecutrix and without her consent.

The conviction under Section 450 IPC fell with it, the house-trespass having been alleged as committed in order to commit the offence under Section 376 IPC, so that once the latter was not proved, the foundation of the former failed.

The appeal was allowed, the conviction and sentence set aside, and the appellant acquitted by extending the benefit of doubt.

Case Title: Avtar Singh v. State of Punjab

CRA-S-1830-SB-2004 

Appearances: Mr. Nikhil Ghai, Advocate for the appellant;

Mr. J.S. Rattu, DAG, Punjab.

Case Title: XXXX v. State of Punjab

Appearances: Mr. Nikhil Ghai, Advocate for the appellant;

Mr. J.S. Rattu, DAG, Punjab.