Burden Of Proof Indian Evidence Act

ACKNOWNLEDGEMENT The success and final outcome of this project required a lot of guidance and assistance from many people and I am extremely fortunate to have got this all along the completion of my project report. I am very much thankful to Ms.Kajori Bhatnagar for her support and guidance, without which I would not have been able to accomplish this project work. I am thankful to my department, University Institute of Legal Studies, Panjab University, Chandigarh, for providing such an expansive library which provided me all the relevant material required for this project. I also express my gratitude to the library staff for their help in the searching of the books and whatever other help I needed. I am also thankful to my friends who helped me in collection of material. Lastly and most importantly, I would like to thank my parents and the almighty for moral support and constant supervision.

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Table of Contents Introduction ................................................................................................................................................... 4 Affirmative facts and Negative facts: ........................................................................................................... 5 Onus Probandi............................................................................................................................................... 6 Burden to lead evidence is shifting in nature ................................................................................................ 7 On whom burden of proof lies ...................................................................................................................... 8 Exposition of the section ........................................................................................................................... 8 Section 103 of the Indian Evidence Act 1872............................................................................................. 10 Burden of proof as to particular fact ...................................................................................................... 10 Section 104 of the Indian Evidence Act 1872............................................................................................. 11 Burden of proving fact to be proved to make evidence admissible. ...................................................... 11 Section 105 of the Indian Evidence Act 1872............................................................................................. 12 Burden of proving that case of accused comes within exceptions......................................................... 12 Section 106.................................................................................................................................................. 17 Burden of proving fact especially within knowledge: ............................................................................. 17 Facts especially within knowledge: ........................................................................................................ 17 Res Ipsa Loquitur: ....................................................................................................................................... 19 Section 107.................................................................................................................................................. 20 Burden of proving death of person known to have been alive within thirty years: ............................... 20 Comments: .............................................................................................................................................. 20 Principle: ................................................................................................................................................. 20 Section 108 ................................................................................................................................................. 22 Section 109 of indian evidence act ............................................................................................................. 23

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Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent: ...................................................................................................................................................... 24 Section 110 of indian evidence act ............................................................................................................. 25 Burden of proof as to ownership: ........................................................................................................... 25 Proof of good faith in transactions where one party is in relation of active confidence: ............................ 26 Proof of active confidence: ..................................................................................................................... 27 Fiduciary relationship: ............................................................................................................................ 27 111A. Presumption as to certain offences:.................................................................................................. 29 Section 112.................................................................................................................................................. 30 Birth during marriage, conclusive proof of legitimacy: .......................................................................... 30 Principle: ................................................................................................................................................. 30 Section 113.................................................................................................................................................. 32 Proof of cession of territory: ................................................................................................................... 32 113A. Presumption as to abetment of suicide by a married woman: .......................................................... 33 Presumption: ........................................................................................................................................... 34 Seven years from the date of marriage: .................................................................................................. 35 113B. Presumption as to dowry death: ....................................................................................................... 37 Essential conditions: ............................................................................................................................... 38 Section 114.................................................................................................................................................. 40 Court may presume existence of certain facts: ...................................................................................... 40 Principle and scope: ................................................................................................................................ 41 Presumption as to existence of certain facts: .............................................................................................. 42 Conclusion .................................................................................................................................................. 60

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Introduction Section 101 lays down that a party who desires the court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. According to this section a person interested favourable judgment from the court must adduce evidence in support of his case. The general rule is that the proof of any particular fact lies on the party who alleges it and not on him who denies it. The issue must be proved by the party who states on affirmative, not by the party who states a negative. Therefore, the burden of proving the fact lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. For example, where the landlord seeks eviction on the ground of bona fide personal need, burden lies upon him to establish that he is genuinely in need of accommodation. In a suit for declaration of title and possession the burden of proof is on the plaintiff to make out his little and possession. The plaintiff is, therefore, under obligation in the first instance to establish prima face case. In criminal case if a party wants the court to punish person for theft which he alleged, must prove the fact of theft. When a person alleges mala fide on the party of the authority it has to establish mala fides. In a suit for mandatory injunction the burden would be on plaintiff to prove his case. He cannot plead that as defendant did not enter in witness box his evidence should be accepted. The court held that no adverse inference against defendant could be drawn merely because of his non-entering in witness box. In a suit for declaration the sale deed was alleged to be forged and fabricated. The defendant disputed such allegations. Reframing issue as to whether the deed was valid

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burden was put on the defendant which was held to be not proper in absence of proof of fiduciary relationship. Burden to prove that will was forged or that it was obtained under undue influence or coercion or by playing a fraud, is on a person who alleges it to be so. Similarly, the burden of proof as to existence of certain facts lies on person ascertaining any legal right or liability on the basis of those facts Burden of proving specific plea that signature had been obtained by coercion on balance papers, which were converted into an agreement, was obviously on defendant.

Affirmative facts and Negative facts: According to general rule the burden of proving facts is upon the person who made the affirmative allegation. He is bound to establish prima facie case. In such a case the court looks to the substance and not the language. In election petition, the burden of proof lies on one who challenges election.‖ Whether a document in question was genuine or sham or bogus the party who alleged it to be bogus had to prove nothing till the party relying upon the document established it genuineness. Generally, the issue of proving burden lies on the party who states an affirmative and not by the party who states negative. But ―a negative allegation must not be confounded with the mere traverse of an affirmative one.‖ The meaning of negative rule is that if a given allegation whether affirmative or negative is very cogent part of his case the burden of proving such allegation lies upon him. Where there was heavy burden on the prosecution to prove every ingredient of offence and the defense had only to probabilise, there must be some materials to support the defense plea. Where both parties adduce evidence the question of proving burden loses its importance.

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Onus Probandi The term Onus probandi means ―if a fact has to be proved the person whose interest it is to proved, it should adduce some evidence, however slight, upon which a court could find the fact he desires the court to find.‖ This kind of burden of proof is otherwise known as burden of adducing evidence. It does not mean that the party has to call all conceivable or available evidence. It merely means that the evidence he lays before the court should be sufficient, if not contradicted to form the basis of judgment and decree upon that point in his favour. ―The burden of adducing evidence rests on the party who would lose if no evidence is led by any of the parties.‖ For example: A files a suit on the basis of a bond. В admits the execution of the bond but pleads that the bond was taken by practicing fraud upon him. In this case the execution of the bond is admitted and so if no evidence is led by В on fraud. A will get the decree. В will lose. Section 101 deals with burden of proof on pleading whereas Section 102 deals with the onus of adducing evidence. The onus of adducing evidence is also known as onus probandi. It is also called ―right to begin.‖ When the onus of proving guilt is on the prosecution, it must be proved beyond reasonable doubt and that onus never changes. The burden of proof of general exception is on the accused person. Such burden can be discharged by showing preponderance of probabilities.

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Burden to lead evidence is shifting in nature The burden of proof arises from pleadings. It is determined by the substantive law and remains constant. It never shifts. But the burden of adducing evidence is shifting in nature. Once the maxim res ipsa loquitur is found to be applicable, the burden of proof would shift on the delinquent. According to Section 102 the plaintiff is bound to give evidence in support of prima facie case. If he fails or he leaves it imperfect, the onus will shift on the defendant. Then the defendant may either deny or adduce rebutting evidence to meet the case made out by the plaintiff. Thus evidential onus keeps shifting during the course of proceeding. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to another. Regarding shifting character of onus of proof the Supreme Court observed that where an agreement is challenged on the ground of its being a restraint of trade, the onus is upon the party supporting the contract to show that the restraint is reasonably necessary to protect his interest. Once this onus is discharged, the onus on showing that the restraint is nevertheless injurious to the public is upon the party attacking the contract.

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On whom burden of proof lies According to general principle the burden of proof initially lies on the plaintiff. Section 102 lays down 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. It relates to the leading of evidence and ―decides the controversy between the parties as to who is to lead evidence first and so it is only procedural matter.‖1 A sues В for land of which В is in possession, and which, as A asserts, was left to A by the will of C, B‘s father. Here A must prove the will of C. If no evidence were given on either side В would be entitled to retain his possession of the land. In an election petition the petitioner failed to prove as to what proportion of the total votes cast in favour of a wrongfully accepted candidate. The Supreme Court rejected the election petition. When a party to a suit does not give evidence and does not offer himself for cross-examination, a presumption would arrive that the case set up by him is not correct.2 The plea that the structure were to be excluded, the onus would be on person alleging such exclusion.

Exposition of the section The term Burden of Proof is used in two difference senses – a) The burden of proof as a matter of law and pleading, b) And the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof, which was explained in the case of (Ranchhodbhai vs Babubhai AIR 1982).

1 2

Narayan v. Gopal AIR 1960 SC 100 Taylor, 12th Edn., S.364, p.252

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c) The first one is the burden to prove the main contention of party requesting the action of the court, while the second one is the burden to produce actual evidence . d) The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract. The burden must be strictly discharged; In other words, the plaintiff, in order to succeed, must put the court in possession of legal and satisfactory evidence and it will be enough to point to matters of suspicion or even to plausible presumption.3 In a criminal complaint for unauthorised construction, it was held that the onus was on the complaining authority to prove that the land belonged to it and the accused put up construction on it.4 In a divorce case, it was shown that a letter was written by the wife‘s advocate to the husband making allegation that he was living in adulterous life. The wife pleaded that such part of the letter was written without her instruction. It was held that burden of proof was on her to prove this fact.5

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Sir Sobha Singh v. Bihari lalBeni Prasad, (1956) Pun 1247 Special Development Area v. Pooranmal. (1997) Cr LJ 3484 (MP) 5 Adlino Santos Briganza v. Marle Dos Santos Braganza AIR 2008 NOC 2090 (Bom). 4

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Section 103 of the Indian Evidence Act 1872 Burden of proof as to particular fact.— The section reads that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Illustration: A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.6 Exposition of the section The section amplifies the general rule laid down in s. 101. It differs from s. 101asby sec. 101 the party has to prove the whole of the facts which he alleges to entitle him to judgement when the burden of proof on him. The section provides for the proof of some particular fact. If the accused wishes to prove a particular fact, his alibi for instance, he must prove it. If the prosecutor wishes to prove a particular fact, not by independent oral testimony, but by the isolated fact of accused‘s admission. Or if he wishes to throw that as an additional fact, he must prove it.7 A person who claimed that his license could not have been revoked without notice, the burden was held to be upon him to prove that fact.8Onus to prove payment of rent lien on the tenant and mere oral testimony is not sufficient for discharging the onus.9

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6Plea of alibi Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher Singh, AIR 1981 SC 1021: 1981 SC Cr R 317: 1981 Cr LJ 714: (1981) 2 SCC 300 7 Barney NORTON v. STATE of Arkansas CR 81-16 618 S.W. 2d 164 8 Sri Upendra Mandal v. Sri Bhajahari Mandal AIR 1991 NOC 107 (Gau) 9 Raghubir Prasad v. RajendrakumarGurdev AIR 1993 All 326

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Section 104 of the Indian Evidence Act 1872 Burden of proving fact to be proved to make evidence admissible. The section says that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustration: A wishes to prove a dying declaration by B. A must prove B‘s death. Exposition of the section Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible,the burden of proving the fact is on the person who wants to give such evidence. The illustration explain the meaning of the section

A person seeking to recover

possession has to prove that he was dispossessed within 12 years. Doctrine of Res IpsaLoquitur.--It literally means Things speak for itself. Prima facie it appears to be a simple and easy maxim to understand and apply. However it is not as simple as it appears to be. Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant. Generally, in a case it is the plaintiff who has to provide evidence to prove the defendant‘s negligence. The illustration explains the meaning of the doctrine:Where the vehicle suddenly went off the road, overturned and killed the victim, doctrine of res ipsa loquitur was attracted and onus was shifted from the claimant to the driver to prove his non-negligence or vigilance.10

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SumatiDebnath v. Sunil Kumar Sen, AIR 1994 Gau 59.

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Section 105 of the Indian Evidence Act 1872 Burden of proving that case of accused comes within exceptions.

The section reads that When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustration: i) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. ii) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.

Exposition of the section In criminal cases the burden of proof, using the phrase in its strictest sense, It is always upon the prosecution and never shifts whatever the evidence may be during the progress of the case. When sufficient proof of the commission of a crime has been adduced and the accused has been connected therewith as the guilty party, then the burden of proof, in another and quite different sense, namely in the sense of introducing evidence in rebuttal of the case for the prosecution is laid upon him.11

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Bai Ramilaben v. State of Gujrat, 1991 Cr LJ 2219 (Guj)

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The onus of establishing an exception shifts to the accused when he pleads an exception.12 Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is interested to take benefit of ‗the general exceptions of the Indian Penal Code or of any of the special laws. The general principles relating to burden of proof are: i)

the accused is always presumed to be innocent, and

ii)

it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge its initial traditional burden establishing the complicity of the accused.

Under section 105 the burden lies on the accused. Once the prosecution has been successful to prove the guilt beyond reasonable doubt that the accused had committed offence. It is immediately shifted to the accused who, if he so desires, may set up a defense of bringing his case within general exceptions of I.P.C. or within special exception or proviso contained in any part of the same code or any other law. Where the accused has led no evidence in defence to support the plea of legal insanity, it is open to an accused to rely upon the material brought on record by the prosecution to claim the benefit of the exception. The burden on the accused to prove his defence stands discharged by showing preponderance of probability in his favour.13 Under section 105 if an accused claims for the benefits of exceptions the burden of proving the case must fall within exception and it lies upon him.

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The Court never presume the existence of the circumstances which entitle the accused to his defence. Subodh Tiwari v. State of Assam 1988 Cr LJ 223 (Gau) 13 The question of the accused being called upon to explain his defence arises only when the prosecution crosses the barrier of innocence :Kusum v. State of Chhattisgarh, 2003 Cr LJ 1227; AIR 2003 SC 976

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But the onus of proof by the accused is not exactly the same as that of the prosecution. An accused is not required to adduce leading evidence to prove his case beyond reasonable doubt. ―The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution is required to prove in a criminal charge. It is sufficient if he is able to prove his case by the standard of preponderance of probabilities envisaged by Section 105 of the Evidence Act.‖ Thus, the law requires that the onus of proof placed on the accused claiming the benefit of exceptions and must be tested by the standard of ―preponderance of probability.‖ While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability. The Supreme Court has made it clear if the evidence is not sufficient to discharge the burden under section 105 it may raise a reasonable doubt as regards the one or other of the necessary ingredients of the offence itself in which case the accused would be entitled to be acquitted. In Pratap v State of U.P14here the probability that the accused had caused death in self-defense was held to be sufficient even though he had not taken his defense in the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the general exceptions can be discharged by showing a preponderance of probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who sets up the plea of self-defense, and in the absence of proof, it is not possible for the court to presume the truth of the plea of self defence.

Proof of innocence: In criminal trial it is a general principle that a person accused of crime is always presumed to be innocent and the prosecution on whom burden lies is to prove the guilt of the accused beyond reassemble doubt. In criminal trial the degree of probability of

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AIR (1973) SC 786

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guilt has been very much higher. Though this standard is a higher standard, there is no absolute standard. No man can be convicted of an offence where the theory of his guilt is no more likely than the theory of his innocence. ―If there is the slightest reasonable or probable chance of innocence of an accused, the benefit of it must be given to him.‖ Where the presumption of innocence is reversed by a statutory provision, the burden is on the accused person. Where an assault rifle is found in innocent possession of a person, the Supreme Court held that such burden should not be heavy as that of the prosecution but even so should be greater probability.

Standard of proving defense: Under section 105 if an accused claims for the benefits of exceptions the burden of proving the case must fall within exception and it lies upon him. But the onus of proof by the accused is not exactly the same as that of the prosecution. An accused is not required to adduce leading evidence to prove his case beyond reasonable doubt. ―The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution is required to prove in a criminal charge. It is sufficient if he is able to prove his case by the standard of preponderance of probabilities envisaged by Section 105 of the Evidence Act.‖ Thus, the law requires that the onus of proof placed on the accused claiming the benefit of exceptions and must be tested by the standard of ―preponderance of probability.‖ While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability. The Supreme Court has made it clear if the evidence is not sufficient to discharge the burden under section 105 it may raise a reasonable doubt as regards the one or other of

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the necessary ingredients of the offence itself in which case the accused would be entitled to be acquitted. But, in a case of robbery and murder the opportunity of the accused to commit the crime was proved by circumstantial evidence. They were found to be in possession of the stolen articles, and they had no explanation for their possession. An adverse inference can be drawn against the accused of murder and robbery.‘ While the prosecution is required to probe the case beyond reasonable doubt, the accused can discharge the onus by establishing a mere preponderance of probability. The onus of an accused person will be compared with the oneness of a party in a civil case and just as in a civil proceedings the court trying an issue makes its divisions by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probabilities is established by the evidence led by him. Even, where the accused has not pleaded exception the accused cannot be denied the benefit of exceptions. When the right of private defense is pleaded, the burden of the accused only shifts after the prosecution has discharged its initial burden of proving its case beyond reasonable doubt. Consequently, the weakness in the defense case would not ensure advantage of the prosecution. ―Which is still to discharge its original onus that never shifts?‖ Where an accused person in his statement under section 313, Cr. PC raised the defense of unsoundness of mind but the circumstances indicated that he acted under grave and sudden provocation. It was held that the accused could not be denied the benefit of the defense of Exception 1 to Section 300 of I.P.C.

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Section 106 Burden of proving fact especially within knowledge:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him Section 106 lays down the principle that where any fact is especially within the knowledge of any person the burden of proving the fact lies on that person. The fact may be of affirmative or negative character. This section applies only to parties to the suit. For example, when a person is charged with travelling without ticket the burden lies on him that he purchased ticket. Again, in case a servant charged with misappropriation of goods of his master, if the failure to account was due to an accidental loss, the fact being within the servant knowledge, it is for him to explain the loss. Similarly, where it is proved that the defendant received the money and had not accounted for it, burden lies upon him to prove what had happened of the money. The principle underlying Section 106, which is an exception to the general rule governing burden of proof, applies only to such matters of defense which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by persons other than the defendant. Under section 9 of the Foreigners Act burden lies on person who claims to be or not to be foreigner. Facts especially within knowledge: Section 106 is an exception to general principles laid down in Section 101 of the Evidence Act. There is apparent contradiction between the two sections, because

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burden of proof lies on the prosecution under section 101, whereas Section 106 burden lies on the accused or adverse party in criminal cases under exceptional cases regulated by I.P.C. or by any special law. If any person claims contrary under section 106 the burden of proving the fact would be upon him since that is within the special knowledge. ―The word, ‗especially,‘ means facts ―that are pre-eminently or exceptionally within the knowledge of the person.‖ ―It would be impossible or at any rate disproportionately difficult for prosecution to establish facts which are especially in the knowledge of the accused and which he could prove without difficulty an inconvenience.‖ Where a postman was held for misappropriation of money entrusted to him for disbursement under a money order, the postman (accused) admitted he paid the money to a boy instead of the payee at his house. It was held that the fact as to who the boy was, was specially within the knowledge of the accused and the burden was on him. If facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt. It would be relevant while considering the totality of the circumstantial evidence. The pistol which was licensed was allegedly used in murder case, the onus would be on accused who gave evasive or incorrect answers and failed to produced the same. An adverse inference can be drawn against him under section 106. It is submitted that under the Indian law, Section 106 should be more liberally used against the accused. When contraband substances were found in many ingeniously devised places of concealment the accused had the full knowledge that they were prohibited substances. So the burden was on the accused on account of his special knowledge about the substances. Burden of proof lies upon the employee to show that he was not employed anywhere so long as the disciplinary proceedings remained pending. In election 18

petition the initial burden to prove determination of age of returned candidate lies on the petitioner, however, lies on the respondent to prove facts within his special knowledge. The burden of proof would not be thrown on the defendant in respect of facts which are within the special knowledge of the plaintiff.

Res Ipsa Loquitur: The maxim is not a rule of law. It is rule of evidence benefiting the plaintiff by not requiring him to prove negligence. In case of negligence the burden of proving negligence on the part of the defendant lies on the plaintiff. Section 106 is an application of the principle of res ipsa loquitur. Where a pedestrian was electrocuted from a live wire due to negligent management of the Electricity Board it was held that the maxim was applicable as because the Electricity Board failed to take proper management. In Municipal Corporation of Delhi v Subliagwanti, due to the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk. Delhi, where a number of persons died. The Supreme Court held that the fall of Clock Tower tells its own story in raising an inference of negligence on the part of the defendant. Since the defendant could not prove absence of negligence on their part they are held liable.

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Section 107 Burden of proving death of person known to have been alive within thirty years:

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Comments: Sections 107 and 108 have to be read together, because both the sections are complementary to each other. Section 107 is based on the principle of continuity of life whereas Section 108 is regarded as proviso to Section 107. Whereas Section 107 deals with the presumption of continuance of life, Section 108 with the presumption of death. Section 107 is merely a deduction from this presumption.

Principle: Section 107 lays down that if a person is proved to have been alive within thirty years it shall be presumed that he is alive and the burden of proving that he is dead, lies on that person who affirms that he is dead. This section suggests that whenever a person in question is found to be alive within thirty years, irrespective of suggestion of his being dead, the court shall presume that he is alive unless and until any positive proof of his being dead is proved. This is the presumption of continuity of life that person may be alive upto thirty years after he was last seen. If a married woman wants to remarry she has to prove that her husband remains unheard for seven years (Section 108) or she has to wait upto thirty

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years. However, a person who was not heard for more than seven years cannot be considered to be dead only on that day on which suit was filed.

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Section 108 Section

108

of

indian

evidence

act

Section 108 lays down that when it is proved that a man has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive lies on the person who affirms it. Whereas the presumption under section 107 is rebuttal, the presumption under section 108 is about to fact of death. In order to qualify the latter presumption it has to be proved that the man in question has not been heard of for seven years by those persons who would naturally have heard of him, and they have taken all steps to trace him out and his whereabouts. Both presumptions under sections 107 and 108 come into play after a suit is instituted.

Presumption: The presumption under this section is that if a person has been unheard of for a period not less than seven years, howsoever long the period of disappearance may be the only presumption and conclusion possibly would be that the person died when the question arose, that is the date of plaint, So long as the dispute is not raised before any Forum and in legal proceedings the occasion for raising the presumption does not arise.

No presumption as to time of death: The presumption under this section only extends to the fact of death of a person but not that at what time the man died. ―The exact time of death is not a matter of presumption but of proof of evidence.‖ In a case, where only a period of 4Vi years had elapsed, section 108 was not applicable; the presumption under section 108 could not

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be drawn. In Md. Sharif v Bande Ali their Lordships of the Allahabad High Court held that ―the only presumption is that ‗M‘ is dead. There is no presumption that he died in the first seven years or in the last seven years. The presumption merely is that he was dead……………………………… the burden of showing that he was alive being thrown upon the defendant if it was necessary for them to do so.‖ The Supreme Court in other cases also, held that there is no presumption of the exact time of death and the date of death has to be established on evidence by the person who claims a right for the establishment of which that fact is essential. Even, otherwise, court may, in the circumstances of each case, make a presumption even regarding time of death. Where the death of a woman was not in question under section 108 the court shall presume that she was dead having not heard of for the period of seven years, it is itself not the ground to presume that she had died seven year prior to the date of institution of suit.

Compassionate appointment: The question relates to time limit of five years prescribed in relevant rules for seeing compassionate appointment. For the purpose of deciding the case, assumption made that five years to be removed after seven years under section 108 had expired and thus the request for compassionate appointment was beyond time-limit of five years prescribed in relevant rules.

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Section 109 of indian evidence act Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent: When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. Section 109 lays down the principle dealing with the presumption of the continuity of relationship between persons or a state of things. When persons acted as partners or as landlord and tenant or as principal and agent, the burden of proving that such relationship does not exist, lies on the person who affirms it. According to this section when a person stands a relationship of partners of a firm or landlord and tenant or principal and agent it is presumed that such relationship continues unless the contrary is proved. When certain persons have been shown to be related to each other, the presumption is that the relationship continues and if one of them says that they are no more related, he must prove the non-existence of relationship. The burden of proving sub-letting is on the landlord but if the landlord proves that the sub-tenant is in exclusive possession of the suit premises, then the onus is shifted to the tenant to prove that it was not a case of sub-letting. The burden to prove relationship of landlord and tenant and denial of ownership of alleged landlord lies on the party who denies the relationship and ownership.

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Section 110 of indian evidence act Burden of proof as to ownership: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

Principle: Possession is a prima facie proof of ownership. It is an evidence of complete title. Section 110 has incorporated this principle. But this principle does not apply when possession is obtained by fraud or force. Mere wrongful possession is insufficient to shift the burden of proof. According to this section when a person is shown to be in possession of any property, the presumption is that he is the owner of that property. If anybody denies his ownership, burden lies on him to prove that he is not the owner of the property. The possession of property, real or personal is presumed prima facie to be full owner of it. The policy of law is to allow a person to continue his possession until a rival claimant proves his title. Thus, the presumption under section 110 would apply only if two conditions are satisfied, viz.—(i) that the possession of the plaintiff is not wrongful, and (ii) that the title of the defendant is not proved. Example: A is in possession of a cycle. В claims the cycle as his, В has to prove that he purchased it and burden lies on B. In a suit for possession based on title the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant. It is for the defendant to

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discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff‘s title. The man in possession starts with a possession of his title and the maxim. presumitur retro, therefore applies. Where the deceased and members of his family were in possession of land prior to 28th June, 1993 under section 110, a presumption would arise that the deceased and the members of his family continued to be in possession.

Proof of good faith in transactions where one party is in relation of active confidence: Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. This section provides that where a person is so related to another in a position of active confidence, the burden of proving good faith of any transaction between them lies on the person in good faith. According to Section 111 an active confidence is imposed upon a person in good faith. The active confidence means and indicates ―the relationship between the parties must be such that one is bound to protect the interest of other.‖ A relationship of active confidence stands between the contracting parties when one imposed the duty of good faith upon another who occupies position of trust and confidence. Such relationship exists in cases such as, father and sons; advocate and client; doctor and patient; husband and wife etc. In all such cases the law imposes a duty of good faith upon person occupying the above positions. There an exception to this rule where a fiduciary or confidential relationship subsists between the contracting parties.

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Proof of active confidence: Section 111 applies to the circumstances where there is valid transaction between the parties and one of them is accruing benefit from the transaction without acting in good faith or is taking advantage of his position. In such cases the burden of proving good faith of the transaction is on the transferee or beneficiary and the relationship of active confidence must be proved. The burden of proving good faith in transaction would be on defendant, dominant party i.e. the party who is in position of active confidence. ―Active confidence indicates that the relationship between the parties must be such that one is bound to protect the interests of the other‖.

Fiduciary relationship: Where a confidence is imposed by one party to another during the course of transaction, the fiduciary relationship may arise if there arises conflict of interests between the parties. ―Where a fiduciary or quasi-fiduciary relationship exists, the burden of sustaining a transaction between the parties rests with the party who stands in such relation and is benefited by it.‖ When Director issuing additional shares has no fiduciary duty to inform the current shareholders about the benefit and the question of burden of proving bona fide of director does not arise. In a transaction entered into by a pardanashin lady in favour of her managing agent, every onus in upon the agent to show conclusively that the transaction was honest and bona fide.

Transaction with Pardanashin ladies: When any transfer is made by a pardanashin lady the principle embodied in Section 111 applies. In cases involving transfer by pardanashin ladies, it is incumbent that those who rely upon them should satisfy the court that they had been explained to and understood by those who executed them.

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―The rule above applies only to strictly pardanashin woman, women who live in complete seclusion and do not appear in public according to the customs and manners of their country and who on account of their ignorance or want of contract with outside would have not the capacity of understanding business transactions and incapable of managing their own affairs are also entitled to the protection of the court.‖—SARKAR

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111A. Presumption as to certain offences: (1) Where a person is accused of having committed any offence specified in subsection (2), in— (а) any area declared to be a disturbed areas under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or (b) Any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence. (2) The offences referred to in sub-section (1) are the following, namely:— (a) an offence under section 121, Section 121A Section 122 or Section 123 of the Indian Penal Code (45 of 1860); (b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or Section 123 of the Indian Penal Code (45 of 1860).

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Section 112 Birth during marriage, conclusive proof of legitimacy: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Principle: Section 112 deals with the presumption of legitimacy of a child. The section is based on maxim pater rest quern nuptioe (he is the father whom the marriage indicates). It provides that a child was born during continuance of valid marriage between the mother and any man or within 280 days after the dissolution of valid marriage and the mother remaining unmarried, it shall be the conclusive proof that the child is a legitimate child of that man unless and until it is shown that the parties to the marriage has no access to each other at the time when the child would have been begotten. The sprit behind Section 112 is that once valid marriage is proved there is strong presumption about the legitimacy of children born during wedlock. When the above requirements are satisfied the presumption of legitimacy is a conclusive presumption of law. Child born during wedlock is sufficient proof of legitimacy. The presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. Section 112 is based on presumption of public morality and public policy. ―It is a presumption founded upon public policy which requires that every child born during wedlock shall be deemed to be legitimate unless the contrary is proved.‖ The effect of this section is that a child born as the result of sexual intercourse between husband and wife is conclusively presumed to be their child. 30

A marriage presumed from living together for a long period is valid marriage for the purpose of legitimacy under this section. Under section 112 it is always for the father or person who wants to challenge the legitimacy of the child that there was no opportunity for intercourse between the father and the mother of the child. On the other hand, strong presumption is in favour of the legitimacy to the child born during wedlock.

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Section 113 Proof of cession of territory: A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, Ch. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification. Section 113 provides that if a notification in an official gazette that a portion of British territory has been ceded to any native state before commencement of Part III of the Government India Act, 1935 the notification is a conclusive proof and no court has any power to make any enquiry about cession. This section now is obsolete. It is hardly of any use in the present form.

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113A. Presumption as to abetment of suicide by a married woman: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. For the purposes of this section, ―cruelty‖ shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860). Comments: This section has created a presumption as to abetment of suicide against the husband or his relative. It lays down that when the question of commission of suicide by a women is alleged to have been abated by the husband or his relatives the following presumptions can arise: 1. That the woman had committed suicide within the period of seven years after the date of her marriage; 2. That her husband or such relative of her husband had subjected her to cruelty; 3. That the case of such suicide had been abetted by her husband or such relative of her husband.

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Presumption: The presumption under the section is rebuttable and totally based on facts. If the married woman does not commit suicide the presumption of abetment will not arise. When suicide has been committed by a woman within seven years after marriage and such suicide has been abated by her husband or his relatives or she was subjected to cruelty the court may presume that the death in question is suicidal after taking into account all such circumstances. Presumption of abetment of suicide can be drawn only by the prosecution has discharged the initial onus of proving crelty. In such type of cases the court may call upon the prosecution to adduce sufficient evidence and to prove that it was a case of suicide abated by the husband or his relation. The legal presumption provided under this provision clearly includes the past inference of cruelty spread over a period of seven years from the date of the marriage of the victim. Where the deceased in her dying declaration stated that she poured kerosene on herself and lighted a match stick on account of ill- treatment and beating by her husband the court can draw a presumption under section 113A of the Act. This kind of presumption is totally in the discretion of the court. The presumption contemplated under section 113A is clearly attracted in the facts of the present case and the accused has not led any evidence to rebut the said presumption. The presumption as to abetment of suicide arises where the woman has been subjected to cruelty by her husband and relations. Where the wife had committed suicide by consuming insecticide within seven years of marriage but evidence was leaving to show that ill-treatment to the deceased was on account of failure to pay the demanded money, the accused was acquitted of charge under section 306, IPC. The facts and circumstances should be such that there is existence of nexus of cause and effect between cruelty and suicide.

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Seven years from the date of marriage: The prosecution has to prove that the case of suicide took place within seven years from the date of marriage. Where the death did not occur within a period of seven years from the date of marriage, the presumption regarding abetment of suicide cannot be raised invoking the provisions of Section 113A of the Evidence Act. Where the marriage was more than seven years there is no presumption. There was no evidence of any act of cruelty also and therefore abetment of suicide could not be inferred. The marriage of the deceased had taken place in 1976, but the incident took place in 1988, that is after twelve years of the marriage, the presumption under Sections 11 ЗА and 113B was not available. In case of offences against married woman the presumption of abetment is not available when charge is under section 302 of I.P.C.

Necessity of cruelty: In order to apply the Section 113A there must be some evidence to show that her husband and relatives subjected her to cruelty. According to the explanation to this section ―cruelty‖ shall have the same meaning as in Section 498A of the Indian Penal Code. According to Section 113A if a husband or his relatives is guilty of cruelty committed to a married woman, both are punishable under section 498A of the IPC, provided a presumption of abetment of suicide took place within the period of seven years. In a dowry case the accused husband used provocative language that led to amount instigation of suicide. The conviction of the husband was proper. Unless the husband can be held guilty of subjecting the deceased with cruelty no presumption of abetting the deceased in

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committing the suicide is available under this section. But, ill-treatment for several years created the presumption in favour of the commission of a forced suicide. Provisions under this section are retrospective: The provisions of this section are applicable in pre-amendment cases. This section does not create any new offence nor does it create any substantial right but merely a matter of procedure and as such are retrospective and applicable to the present case.

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113B. Presumption as to dowry death: When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation: For the purposes of this section, ―dowry death‖ shall have the same meaning as in Section 304B, of the Indian Penal Code, (45 of 1860). Scope: Section 113B creates a presumption of dowry death. In such cases, under this section, the ―Court will take for granted that the accused has committed dowry death.‖ The prosecution has to prove that the death of a married woman was caused by any burns, bodily injury or occurs otherwise than by natural death within seven years of marriage. There is no straight jacket formula; only live link between the cruelty because of dowry demand and death must appear to exist. When the death of a victim was due to burn injuries in matrimonial home, circumstantial evidence showing drenched in kerosene and mouth gagged with a piece of cloth ruling out suicide or accidental death, presumption under this section arose. The presumption of dowry death arises only in cases when the prosecution proves that before death the victim was subjected to cruelty or maltreatment or harassment for dowry demand. Hence, under this section when prosecution proves the case, it shall be presumed by the court that the death is a dowry death. Sections 113B which is relatable to dowry death places heavier onus on the accused than onus places under Section 113A. Husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide.

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Essential conditions: The following essential conditions are to be fulfilled for raising presumption as to dowry death: 1. ―The question before the court must be whether the accused has committed the dowry death of a woman (This means that the presumption can be raised only if the accused is being tried for the offence under section 304B, I.P.C.). 2. The woman was subjected to cruelty or harassment by her husband or his relatives. 3. Such cruelty or harassment was for or in connection with any demand for dowry. 4. Such cruelty or harassment was soon before her death.‖

Presumption as to dowry death: When Section 113B is read with Section 304B of I.P.C. it proves that the death of the victim was due to subjection of cruelty and harassment. Where the prosecution does not allege demand of dowry against the accused Section 113B is not attracted. It shows that there has been persistent demand of dowry and because of non-fulfillment of said demand the victim was subjected to harassment, humiliation and continuous beating by the accused-husband and in-laws. Poison was administered to deceased in Prasad. She died within seven years of marriage. Presumption under section 113B is attracted. In case of dowry death ―there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stable enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

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The presumption as to dowry death may be involved when the prosecution proves that ―soon before death‖ the victim was subjected to cruelty or harassment. The rule of evidence is to be prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. In absence of basic element of dowry demand, presumption under this section cannot be raised. The presumption under section 113B cannot be invoked against husband. On the other hand, where ingredients of section 304B of the Indian Penal Code are established by the prosecution the onus lies on the accused to rebut presumption under section 113B of the Evidence Act. Irrespective of fact whether the accused has any direct connection with the death or not shall be presumed to have committed dowry death provided the other requirements of the section are satisfied. Where evidence of witnesses established demand of dowry and ill treatment of deceased shortly before the date of occurrence, the offence of dowry death is made out. The statements made by mother and brother of the deceased that the deceased was taunted by the husband and in-laws for not bringing dowry is admissible in evidence. A comparative study of Sections 11 ЗА and 113В highlights that under Section 113A the court ―may presume‖ having regard to all the other circumstances of the case, an abetment of suicide as visualized by Section 306,1PC, but Section 113B which is relatable to Section 304B, the word ―may‖ has been substituted by ―shall‘‘ and there is no reference to the circumstances of the case.

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Section 114 Court may presume existence of certain facts: The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations: The Court may presume,— (а) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; (c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; (d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence; (e) That judicial and official acts have been regularly performed; (f) That the common course of business has been followed in particular cases; But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:—

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As to Illustration (a): A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business; As to Illustration (b): A, a person of the highest character, is tried for causing a man‘s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself; As to Illustration (b): A crime is committed by several persons. A, В and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable; As to Illustration (с): A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A‘s influence; As to Illustration (d): It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course; As to Illustration (e): A judicial act, the regularity of which is in question, was performed under exceptional circumstances; As to Illustration (f): The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

Principle and scope: Under section 114 the court may presume the existence of certain facts. According to this section if a fact is likely to have happened:

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(i) In common course of natural events; (ii) According to general human conduct; (iii) According to public and private business; (iv) Due to the relation to the facts of the particular case,— the court may presume the existence of such fact. ―Section 114 of the Evidence Act shows the way to the court in its endeavour to discern the truth and to arrive a finding with reasonable certainty.‖

Presumption as to existence of certain facts: This section has given enough discretionary power to the court to draw certain inference from the facts. The presumption under the section is discretionary and not mandatory. Presumption can be drawn only from certain set of facts and not from other presumptions. A presumption can be drawn only from facts, and not from after presumption by a process of probable and logical reasoning. The presumptions are ‗may presume‘ in nature and ―rebuttable.‖ This is the final conclusion to be drawn from the facts. The court, taking into consideration of the circumstances of a case may or may not presume the existence of certain fact. Where permission to intercept phone of the accused was obtained by the investigating officer, but no evidence was led regarding details of the investigation of calls made or received from that number, no adverse inference can be drawn from the fact that details of afore mentioned number was not given.

A presumption is not evidence or proof: As to valid marriage it gives rise presumption of marriage between father and mother and the said presumption is rebuttable. If live-in-relationship between the parties continued for a long time. It cannot be termed in a ―walk in and walk out‖

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relationship. There is a presumption of marriage between them. From certain fact or facts the court can draw an inference and what would remain until such inference is either disproved or dispelled. It shows on whom burden of proof lies. ―The effect of this presumption is to make it perfectly clear that Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and that they are to be subject to particular rules whatever on the subject.‖ Presumption can only be raised where they are permitted under the law and such a presumption is not permitted by any of the provisions of the Evidence Act or any other law. Right to be searched has to be made in presence of Gazetted Officer under section 50 of the Narcotic Drugs and Psychotropic Substance Act. The Search was to be conducted in presence of Superintendent of Police. But the accused opted to be searched in presence of the Dy. Superintendent of Police, being a Gazetted Officer. There is no presumption that there may be bias on part of the Dy. Superintendent of Police. A court may legitimately draw a presumption not only from the fact that the person in whose possession the stolen articles were found committed robbery but also he committed murder. The presumption under this section operates only in absence of evidence. It will disappear when facts are ascertained. According to Section 114 it is duty of the court to discern the truth and to arrive at finding with reasonable certainty. ―It is not correct to say that the evidence of the accomplice can never be relied upon, since such evidence is admissible under section 133. However, Section 133 has to be read with Section 114(b) and reading them together the law is well settled that the rule of prudence requires that the evidence of an accused-accomplice should ordinarily be corroborated by some other evidence.‖ False explanation as to forged signature on a cheques does not create any presumption against him (accud.) that he is a forger. The prosecution must prove him to be guilty.

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In some circumstances the court may draw adverse inference. The adverse inference can be drawn against the party who had knowledge of material factor of the case and has not entered in witness box without sufficient reasons. Therefore, Section 114 deals with such presumptions and the illustrations given in this section are few instances only.

Common course of natural events: This expression signifies that an event can take place only when certain circumstances become favourable or unfavourable. What is most common depends upon the facts and circumstances. For example, period of gestation, continuance of life etc. Human conduct: Human conduct means the conduct found only in human being who can judge what is right and wrong. The expression of such conduct may either be positive or negative and that can be determined by his actions. Example: if a man and woman are living as husband and wife for a longtime, the presumption is they are married. Public and private business: It is a common presumption that everything is presumed to be rightly and regularly performed until the contrary is proved. The address of a registered letter bears correct address. Mere denial of receiving it was not enough. The presumption prevailed. In order to presume certain fact the court under section 114 of the Evidence Act, has to have regard to the common course of natural events, human conduct and public and public business. ―It is necessary that the common course of natural events, human conduct and public and private business in so far as it relevant to the facts in issue in particular case must be established.‖ If the alleged course of conduct unless established cannot be made use of by the court for the purpose of arriving at decision

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under section 114 of the Evidence Act. Where a witness is not cross-examined over the matter of his testimony, a presumption arises that his version has been accepted. Necessity of illustrations: The intention of the makers of the Act can be drawn from various Illustrations appended to these sections. The provisions of these sections are not merely confined to the Illustrations, but are equally applicable to the similar cases. A very wide application of this section has been intended by the makers by giving these Illustrations although these are not exhaustive. These Illustrations enable counts to draw inferences from the facts and circumstances. 1. Presumption of possession of stolen goods [Illustration (a)]: The Illustration (a) is an exception to the general rule that the burden of proof always lies on the prosecution. According to Illustration when a person was found in possession of stolen goods soon after theft, it gives rise two presumptions viz., (i) either he is thief or (ii) he has received the goods knowing them to be stolen. Merit of the presumptions depends upon various facts and circumstances of a case. According to the Supreme Court all factors are to be taken into consideration in arriving at a decision. Unexplained possession of stolen goods has been held to be sufficient to create a presumption of guilt. ―Where the Supreme Court raised only the presumption from the recovery of stolen property that it was received with knowledge, but not that the person from whose custody they have been recovered should be presumed to be also the murderer of the woman to whom the articles belonged.‖ The presumption can be drawn only if fact of recovery is proved beyond reasonable doubt. Where the articles belonging to the victim are found in the possession of the accused, the burden shifts to the accused to explain the same. If he has not explained the possession of stolen articles the presumption is that he is a receiver not stolen property or a thief. Where the accused was found in possession of gold ornaments and 45

other articles, it was held that a presumption arose under Illustration (a) to Section 114 of the Evidence Act. 2. Accomplice [Illustration (b)]: The word ‗accomplice‘ has not been defined in the Evidence Act. An accomplice means a guilty associate in crime. He is one concerned with others in the Commission of a crime. Illustration (a) lays down that an accomplice is unworthy of credit, unless he is corroborated in material particular. It is absolute discretion of the court to raise any presumption. ―It is not necessary that there should be independent corroboration of every material circumstances. All that is required is that the story of the accomplice is true and that it is reasonably safe to act upon it.‖ When the evidence of the approver corroborated by medical evidence the conviction of the accused under section 396, IPC was held proper. The corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. It is unsafe to act solely upon the evidence of co-accused unless it is corroborated in material aspects. Illustration (b) to Section 114 incorporates a rule of causation to which the courts should have regard. Section 133 has to be read with Section 114(b) and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence. 3. Presumption as to Bill of Exchange [Illustration (c)]: All things are presumed to be rightly done. This maxim is also applicable to private business. According to Illustration (c) the court may presume that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration. But this section has authorized also that the court must have regard to other material facts for

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its consideration. In considering all facts the court may presume a bill of exchange proved until it is disproved. Section 118 of the Negotiable Instrument Act, on the other hand, extends the presumption to all kinds of instruments, when an instrument is endorsed, negotiated or transferred, the presumption is that it was endorsed, negotiated or transferred for consideration. Section 114 of the Evidence Act is of general in nature, whereas Section 118 of the N.I. Act applies only to parties to the instrument. Under Section 114 and Illustration (c) the court has discretion to draw a presumption, whereas under Section 118 of the N.I. Act the court is bound to start with the presumption. When the two presumptions are made there is no difference between the two where it proved that the cheque was issued by a party and the cheque was presented in the bank and it was dishonoured. Presumption arises that the cheque was issued for consideration, burden to rebut the presumption would be on the party issuing the cheque. ―Under section 118 of the N.I. Act the Court is bound to start with presumption in favour of passing consideration.‖ Under section 114 of the Evidence Act the court has unfettered discretion to presume a fact, as proved until it is disproved, or ignore such a presumption and call for a proof of it.‖ ―The presumption under section 118 of the N.I. Act is that the instrument is supported by some consideration. There is no presumption as to the quantum of consideration.‖ ―In a suit on a promote against the undivided sons of a Hindu promissor governed by the Mitakshara, the presumption permissible is under the general law, viz., Section 114 and not Section 118 of N.I. Act.‖ 4. Presumption of continuity of things [Illustration (d)]: The presumption is that a thing or state of things existed within a period shorter than that within which such thing or state of things usually ceased to exist, is still in existence. it may be presumed that things remain where they were in original state. 47

When a person is in possession of certain property it may be presumed that his possession continues unless his dispossession is proved. Property which was shown to be ancestral would be presumed to continue in that state unless the contrary is proved. 5. Presumption of performance of judicial and official Acts. [Illustration (e)]: The presumption under this section, though it is optional is that when a judicial or official Act has been done it may be presumed to be regularly done. The rule is based on the maxim that all acts are presumed to be rightly and regularly done. The statement of facts happened at the hearing and recorded in the judgment of the court is presumed to be correct. The Illustration (c) means that if an official act is proved to have been done, it would be presumed to have been regularly done. Where official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will upload such state action. Similarly, same presumption is applicable to the official acts where the procedure adopted by the selection committee was based on merits and marking was given accordingly it was presumed that the official acts were genuine. In a private establishment also where the course of dealing is systematic and regular similar presumption may apply. The presumption as to correctness of entries in revenue records has to be rebutted by leading evidence to the contrary. An entry of such nature does not become rebutted by the mere statement of fact made in the written statement. A marriage between a Catholic Christian wife and a Hindu husband was in question. The wife was converted to Hindu before marriage according to Vedic Rites. The marriage cannot be said to be void. It can be presumed that the priest must not have performed marriage without conversion.

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6. Presumption of transaction in usual course of business. [Illustration (f)]: Illustration (f) has to be read with Section 16 of this Act, which attaches a great evidentiary value to an act done in any general course of business. The presumption is that the course of business is followed by the parties in commercial transaction. If the letter correctly addressed was posted and that it did not come back it may be presumed that in course of business it was received by the addressee. Where postal receipt and acknowledgement due showed the dispatch and receipt of notice, it was held that there was presumption service of notice. Where a notice to quit sent by the landlord by registered post to the tenant, which the latter as verified by the postman, refused to take, was presumed to have been delivered. Notice of an appeal deemed to have been served though A/D was not returned. Merely making a bold statement that he did not receive the notice was not enough. The presumption is stronger when a letter was posted through registered post. When a notice is sent under certificate of posting it is presumed that there has been service of notice. 7. Presumption of withholding evidence [Illustration (g)]: The Illustration deals with the presumption arising from withholding evidence. It enables the court to presume that where an evidence is withhold by the party, it goes against him. ―The presumption under section 114(g) is only permissible inference and not a necessary inference‖. Merely because some important material which has not been examined in the case, the court would not draw inference that if the witness had been examined he would have given contrary. Where the anti-adulteration authorities did not produce the sample which was submitted to analysis, it created presumption that there was something in the sample against them. When a person is very much available and alive, attempt to prove signature or handwriting by examining third person as a witness would have its own drawback. An inference as provided for Cl. (g) of Section 114 would come into play. Where the state did not produce the merit list despite Supreme Court‘s directions, a presumption is

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that no merit list was prepared.‘ Where a copy of the statement of an accomplice recorded by the police was not given to the defence an adverse inference was drawn against him testimony. Non-production of witness created an adverse presumption would ipso facto vitiate the whole trial. The question relates to determination of consent or implied consent for surgical operation. The patient denied to have consented to surgery excision of tumour, whereas the doctor concerned in written submissions appended copy of consent from of the hospital but not the actual consent taken from the patient and no evidence was produced on part of the doctor. It raised presumption against the hospital and the attending doctor as held by the Supreme Court. It was held that in essence of surgery consent given for excision biopsy could not by inference be taken to be consent for surgery. 8. Refusal to answer [Illustration (h)]: The Illustration says that if a person refuses to answer question which he is not compelled to answer by law, the court may presume the answer if given would be unfavourable to him. But if the accused refuses to disclose his defense at the committal proceeding no adverse inference against him can be drawn. 9. Presumption as to document in hand of obligator. [Illustration (i)]: According to this Illustration it is a natural presumption that a man will protect his interests by securing his document before or at the time of discharging it. Where an instrument of debt and a security for it are in the hands of the debtor, the presumption would be that the debt must have been discharged and for protecting his interest the debtor obtained the document and security after discharging the debt. Section 114 of the Evidence Act cannot be relied upon to plead due discharge of obligor under document if it is in the hands of obligor.

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114A. Presumption as to absence of consent in certain prosecutions for rape: In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause id) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, (45 of 1860), 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 she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Comments: Reasons for amendment: The offence of rape has been defined in Section 375of the Indian Penal Code and punishment for which is prescribed in Section 376 of the same Act. When a case of rape has been committed the court has to decide whether sexual-intercourse was committed with or without consent of the prosecutrix. The consent theory that was in force for more than hundred years has been reoriented due to public resentment, because culprits usually escaped punishment. It has been very difficult on part of the court to draw correct inference from surrounding circumstances whether it was a case of rape with consent or without consent. The accused usually used to take defense that it was consented rape and now the prosecutrix was shielding herself from public. Without any corroboration of the statement of the rape victim the accused would not have been punished. To annihilate the defense consent as well to dispense gender justice the amendment has been made whereby the court can presume that there was no consent given by the prosecutrix.

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Principle: Under section 114A of the Evidence Act where the prosecutrix alleges that the accused had sexual intercourse with her and she did not consent the court shall regard that there was no consent. The evidence of the victim of rape alone is sufficient to prove absence of consent in a charge of rape. It is the accused to prove that the prosecutrix consented to sexual-intercourse. When a case of rape is committed the following presumptions under this section can be drawn: (i) There has been sexual-intercourse; (ii) Sexual intercourse with or without consent; (iii) The prosecutrix did not consent. The new section mainly deals with the last point i.e. (iii). As soon as the victim complains that she is raped, the burden of proving of consent would be shifted to the accused. Most encouraging development has been the observation of the Supreme Court. It said that ―‗keeping in view the social victimization and ostracization of the victim of a sexual offence it would be appropriate that in the judgments of courts name of the victim should not be indicated‖. Regarding proof of non-consent it was also observed that the question of consent is really a matter of defense by the accused and it is for the accused to place materials to show that there was consent. Presumption against allegations of consensual sex: It was held that ―whereas Sections 113A and 113B inserted in the Evidence Act by same amendment raise a clear presumption in favour of the prosecution but no similar presumption with respect of rape is visualised as the presumption under section 114A is extremely restricted in its application.‖

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Re-writing the Concept of Burden of Proof; Supreme Court Judgment in Sher Singh @Partapa Vs. State of Haryana The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the charged offence. Presumption of innocence is a human right as envisaged under Art.14 (2) of the International Covenant on Civil and Political Rights 1966. Art.11(1) of the Universal Declaration of Human Rights 1948 also provides that any charged with penal offences has a right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Even before, it was part of English Common Law as observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions, (1935 AC 462), [Golden Thread Judgment] that ―no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained‖. This principle is also became a fundamental part of Criminal Law of India. [See V. D. Jhingan Vs. State of Uttar Pradesh AIR 1966 SC 1762] It is also the cardinal rule of our criminal jurisprudence that the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. But in Veeraswamy Case [(1991) 3 SCC 655] the Constitution Bench held that ―…….a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Art.21 of the Constitution as contended for the

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appellant. It may be noted that the principle reaffirmed in Woolmington case (Supra), is not a universal rule to be followed in every case. The principle is applied only in the absence of statutory provision to the contrary‖. As observed by Justice K.T.Thomas in State of West Bengal v. Mir Mohammad Omar and Others, [2000 (8) SCC 382] that ―the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty‖. The Concept of ―reverse burden‖ has been adopted in many statutes like Negotiable Instruments Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act etc. In Indian Evidence Act, Section 113A (for S.306 IPC) and Section 113B (for 304B IPC) places a reverse burden on the accused. A Two Judge Bench [Vikramjit Sen and Kurian Joseph.JJ] of the Supreme Court in Sher Singh @ Partapa Vs. State of Haryana [Criminal Appeal No. 1592 of 2011 dt 9.1.2015] while dealing with S.304B IPC and S.113B Evidence Act interalia held as follows; 1. The Prosecution can discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities 2. Once the presence of the concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. 3. Keeping in perspective that Parliament has employed the amorphous pronoun/noun ―it‖ (which we think should be construed as an allusion

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to the prosecution), followed by the word ―shown‖ in Section 304B, the proper manner of interpreting the Section is that ―shown‖ has to be read up to mean ―prove‖ and the word ―deemed‖ has to be read down to mean ―presumed‖. Regarding the third proposition, there is no scope for doubt since the Courts in India have been interpreting the word ―shown‖ to mean ―prove‖ and the word ―deemed‖ has to mean ―presumed‖ though not expressly declared as ‗reading down‘ and ‗reading up‘. [See Gurdip Singh vs. State of Punjab (2013) 10 SCC 395 in which Kurian.J held ―Though the expression ―presumed‖ is not used under Section 304B of IPC, the words ―shall be deemed‖ under Section 304B carry, literally and under law, the same meaning since the intent and context requires such attribution‖] But the first two propositions require serious consideration because of a profusion of precedents against it. The genesis of Section 304B of IPC introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91 Report of the Law Commission of India. The Commission, in its Report dated 10th August, 1983, recommended reform of the law to deal with the situation which led to incorporation of Sections 304 B in IPC, making ‗dowry death‘ an offence and Section 113B in the Evidence Act which provides for raising a presumption as to dowry death in case of an unnatural death within seven years of marriage when it is shown that a woman was subjected to harassment for dowry soon before her death. Presumption under S.113B of Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials; (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under S.304B, IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for,

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or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death. [Raman Kumar vs. State of Punjab (2009) 16 SCC 35]. Reading S.113B of the Evidence Act, as a part of S.304B, if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances ―the court shall presume that such person had caused the dowry death‖ [S.M.Multani v. State of Karnataka AIR 2001 SC 921]. The key words in S.113B are ‗shall presume‘ leaving no option with a Court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Can the prosecution discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities? There is a catena of precedents which unequivocally held that in order to establish the offence of dowry death under Section 304B, IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. Most recently in Karan Singh vs. State of Haryana [(2014) 5 SCC 73- Ranjana Prakash Desai.J and Madan B. Lokur.J ] it was held as follows; ―It has been held times without number that, ―To establish the offence of dowry death under Section 304-B IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected to cruelty or harassment in connection with demand of dowry soon before her death. In Rajeev Kumar v State of Haryana [AIR 2014 SC 227- AK.Patnaik.J and Gyan Sudha Misra.J] it is held as follows; ―One of the essential ingredients of the offence of dowry death under S.304B, IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and

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only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Indian Evidence Act. A three Judge Bench of the Supreme Court in Rangappa v. Sri Mohan [AIR 2010 SC 1898] examined the degree of proof required for an accused to discharge his burden in a prosecution U/S 138 0f NI Act and it is held as follows; ―S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments………..it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of ‗preponderance of probabilities‘. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail‖ Legislative Intention In Para-14 of the Judgment it is held as follows; ―It seems to us that what Parliament intended by using the word ‗deemed‘ was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt‖ But the following provisions will make it clear that if the Parliament intends the accused to discharge his burden/part of burden/or to prove any ingredient beyond reasonable doubt, it would have expressed in clear terms. 1. 35 of NDPS Act 2. 138A of Customs Act 3. 278E of Income Tax Act 4. 9C of Central Excise Act 1944 5. 30 of POCSO Act 2012 [List is not exhaustive] Section 35 of NDPS Act is extracted below; 5. Presumption of culpable mental state. (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation. -In this section ―culpable mental state‖ includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to

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exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. All other Sections quoted above are in parimateria with Section 35 of NDPS Act. Explaining the nature and extend of burden cast on the Accused U/S 35(2) of NDPS Act, in Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821] , Justice KT.Thomas speaking for three Judge Bench held as follows; ―The burden of proof cast on the accused under S.35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under S.35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.‖ Even in a case where the statute (S.35 NDPS Act) requires the accused to prove his case beyond reasonable doubt, the three Judge Bench of the Apex Court had read it down in the afore said manner, evidently to save the section from the vires of Constitution. Hence, except when there is a statutory provision which cast the burden of proof to a degree beyond reasonable doubt on the accused, the Court cannot impose such a heavy burden on him. It is definitely a new innovation, something which Parliament had not even thought of while enacting S.304B IPC and S.113B Evidence Act. The inherent disability of an accused must always be borne in mind by the Courts when casting the degree of proof on the accused. The position becomes more formidable as Article 20(3) of the Constitution of India offers the constitutional protection to the accused by saving him from testimonial compulsion. I strongly doubt that the ratio propounded by the two Judge Bench in

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Sher Singh @ Partapa Vs. State of Haryana is not only contrary to the well established jurisprudential standards in criminal cases, but also amounts to negation of the fundamental right to fair trial guaranteed under Article 21 of Constitution of India.

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Conclusion The burden of proof as a matter of law and pleading, the burden, as it has been called, of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed, at the beginning of the trial, by the statements of the pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever. This being the test, the burden of proof cannot remain constant, but must shift as soon as he produces evidence which prima facie gives rise to a presumption in this favour. It may again shift back on him, if rebutting evidence is produced by his opponent.

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BIBLIOGRAPHY 1. A Manual on Indian Evidence Act, Dr. Gokulesh Sharma 2. Digest of Indian EVIDENCE Act, 1872 (1950-2010), R.Ramachadran (Advocate) 3.

The Indian Evidence Act, 1872 (Latest Bare Act)

4. Hemant Kumar Pandey 2015 & Law of EVIDENCE (in 2 Vols.), Justice M.Monir, revised by Manmohan Lal Sarin 5. The Law of EVIDENCE, Batuk Lal

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