Download Burden of Proof in Indian Law: A Comprehensive Analysis of the Reasonable Doubt Rule and more Assignments Law of Evidence in PDF only on Docsity!
Jai Narain Vyas University, Jodhpur
(Five years’ Law Integrated Program, Law Faculty)
Project Assignment Academic Year
2015 - 16
Sub: Law of Evidence
Topic: “Burden of Proof - The Reasonable Doubt Rule, Reasons For the
Rule, Issues That Should Be Governed By the Rule”
Submitted To: Submitted By:
Ms. Akshaya Shukla Sandeep K Bohra
Roll No.: 20 (B.B.A LL.B.)
Synopsis
S.No (^) Particulars Page(s)
No.
- Cover Page (^1)
- Preface (^3)
- Acknowledgement (^4)
- List of Contents (^5) - 6
- Subject – Matter (^7) - 29
- References/ Bibliography (^30)
- Plagiarism Verification (^31)
Acknowledgement
To make any project, essential requirement is able guidance and references
without which project is incomplete. I am very much thankful to Professor
Ms. Akhshya and who has provided me an opportunity and motivation to
gain knowledge through this type of project. I shall get practical
knowledge from this project and this will help me a lot in my career.
I am also thankful to Jai Narain Vyas University, Jodhpur for providing
facility of library and computer laboratory, which are proved as valuable
input resources for preparing my project.
I am also obliged by my classmates, whose co-operation has contributed
major part in my project. At last but not the least, I am thankful to all my
friends and other persons who have directly and indirectly helped me
during preparation of report.
Thank You
List of Contents
I. Outline of Burden of Proof
Meaning
Burden of proof refers to the duty of a party making a claim to prove that the claim is true. The phrase is most commonly used in the context of criminal trials, where the defendant (the party
charged with a crime) is presumedinnocent until proven guilty.
The expression means two different things. (Prasad, 2013)
Firstly, it means sometimes that a party is required to prove an allegation before the judgement can be given on its favour;
Secondly, it also means that on a contended or disputed issue one of the two contending party has to introduce evidence.
The burden of proof is of importance where the party who alleged the fact is unable to give any proof which validates the allegation, May eventually fails.^1
1. Section 101 of the Indian Evidence Act 1872
The section reads, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof^2 lies on that person.
Illustrations:
i. A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. ii. A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
Exposition of the section
The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. The rule of convenience has been adopted in practice, not because it is impossible to prove negative, but because the affirmative is capable of proving easily. And it is also reasonable and just that the suitor who relies upon the existence of a fact, should be call upon to prove his own case.
Exception to the section
The general rule that a party who desires to move the Court must prove all facts necessary for that purpose (ss. 101-105) is subject to two exceptions:-
a) He will not be required to prove such facts as are especially within the knowledge of the other party (s. 106); and b) He will not be required to prove so much of his allegations in respect of which there is any presumption of law (ss. 107-113), or in some cases of fact (s. 114) in his favour.
(^1) Narayan v. Gopal AIR 1960 SC 100; the court said: “The expression ‘burden of proof’ has two distinct meanings, (1) the legal burden i.e., the burden establishing the guilt, and (2) the evidential burden i.e., the burden of leading evidence. (^2) Taylor, 12th (^) Edn., S.364, p.
2. Section 102 of the Indian Evidence Act 1872
On whom burden of proof lies.—The Section reads 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.
Illustrations:
i) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. ii) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
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).
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 not 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
(^3) Sir Sobha Singh v. Bihari lal Beni Prasad, (1956) Pun 1247 (^4) 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. 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.^14
Doctrine of Res Ipsa Loquitur.--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.^15
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 explain 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.^17
This section should be read with clause 2 of s. 136 and with illustrations attached to that section.
5. 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 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
(^14) Kalooram v. Mangilal , AIR 1984 MP 147. (^15) Meaning of “res ipsa loquitur” as defined in Black’s Law Dictionary. (^16) Contended from http://www.legalserviceindia.com/articles/Res_Ipsa_Loquitur.htm (^17) Sumati Debnath v. Sunil Kumar Sen, AIR 1994 Gau 59.
upon him.^18 The onus of establishing an exception shifts to the accused when he pleads an exception.^19
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. Evidence in defence may be a Surplusage in cases where the defence can make out a case for the acquittal of the accused based on the evidence adduced by the prosecution.^20
The burden on the accused to prove his defence stands discharged by showing preponderance^21 of probability in his favour.^22
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 the necessary ingredients of the offence itself in which case the accused would be entitled to be acquitted.
In a Case^23 where 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.
(^18) The question of the accused being called upon to explain his defence arises only when the prosecution crosses the barrier of innocence. Bai Ramilaben v. State of Gujrat, 1991 Cr LJ 2219 (Guj) (^19) The Court never presume the existence of the circumstances while entitles the accused to his defence. Subodh Tiwari v. State of Assam 1988 Cr LJ 223 (Gau) (^20) Elavasaram v. State, (2011) 7 SCC 110 (^21) “a superiority or excess in number or quantity; abundance”, defined by Merriam Webster Dictionary. (^22) Kusum v. State of Chhattisgarh, 2003 Cr LJ 1227; AIR 2003 SC 976 (^23) Pratap v Stare of U.P., AIR (1973) SC 786
within their knowledge.^28 Similarly in a case of a servant charged with the misappropriation of goods of his master, if the failure to account was due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the loss.^29 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 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.
It was held that the fact as to who the boy was, was especially 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.^30
Burden of proving negligence and res ipsa loquitur
It has been considered by the Privy Council that the burden of proving negligence always rests
with the plaintiff, even when the maximres ipsa loquitur applies.^31
Once the initial burden of showing the setting of mishap is discharged, the maxim will relieve the plaintiff of showing further evidence of negligence.
In cross on Evidence^32 the effect of the maxim is stated that, “ Where the plaintiff suffers damage in
consequence of one or more things which were under the exclusive control of the defendant on his
servants, getting out of control, reliance may be placed on the maxim res ipsa loquitur in lieu of
further evidence of negligence”.
Acting upon this maxim and following the decision of the Supreme Court in Sayeed Akbar v. State of Karnartaka^33 the Kerela High Court held that where a live wire was hanging on the road from an electric pole, it must be presumed that it must have been due to negligent management creating liability to the dependents of the pedestrian who was electrocuted.
In Municipal Corporation of Delhi v Subliagwanti^34 , 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.
Inference under section 106 can be drawn
It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. Deceased was found dead in her bedroom in matrimonial home. The acquittal of husband was reversed by the High Court. It was held that on appreciation of evidence it cannot be said that it is a case where two views are possible. Evidence of witnesses was duly corroborated by medical
(^28) Maven v. Alston, (1893) 16 Mad 238, 245 (^29) Krishan kumar v. Union of India, AIR 1959 SC 1390 (^30) State of T.N v. Radhakrishnan 1989 Cr LJ 1161 Mad (^31) Ng Chun Pui v. Lee Chuen Tat, The Times, May 25, 1988 PC; 1988 CLY 1582. (^32) 108-9 (1958) (^33) AIR 1979 SC 1848; 1979Cr LJ 1374 (^34) 1966 AIR 1750; 1966 SCR (3) 649
evidence which opined death due to compression of neck. The plea of alibi of husband was also found to be false. The conviction recorded by the High Court was upheld.
7. Section 107 and 108 of the Indian Evidence Act 1872
Sec. 107 reads, 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.
Sec 108 reads, Burden of proving that person is alive who has not been heard of for seven years.— the question is whether a man is alive or dead, and it is proved that he 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 is [shifted to] the person who affirms it.
Exposition of the section
Section 107 and 108 must be read together because the latter is only a provisio to the rule contained in the former, and both constitute one rule when so read together.^35
There is no presumption in law that a person was alive for seven years from the time when he was last heard of. These section deal with the procedure to be followed when a question is raised before a Court, as to whether a person is alive or dead, but do not lay that the Court could make a presumption that a person was alive for seven years after, and the onus he was last heard of, it depends on the circumstances of each case, whether the Court could draw such a presumption or not.^36
Presumption of Survivorship—Burden of proving death (S. 107)
This action provides that if it appears that a person, whose present existence is in question, was alive within 30 years, and nothing whatever appears to suggest the probability of his being dead, the Court is bound to regard the fact of his still being alive as proved.
Presumption of Death (S. 108)
If a person has not been heard of for seven years, there is a presumption of law that he is dead^37 and the burden of proving that he is alive is shifted to the other side.^38 But at what time within that time he died is not a matter of presumption but of evidence, and the onus of proving that the death look place at any particular time within the seven years lies upon the person who claims a right to establishment of which that fact is essential.^39
The Inference of both sections are:
i) After the lapse of seven years, only and only death could be presumed by the court. ii) There is no presumption of the time of death under Section 108 of Indian Evidence Act,
iii) Time of death has to be proved by independent evidence.
(^35) State of Punjab v. Bachan Singh, (1956) Pun 1232 (^36) Veeramma v. Chenna Reddi, (1021) 37 Mad 440. Saroop Singh v. Banto, AIR (2005) SC 4407: The Court held that there is no presumption that such person died seven years ago. (^37) Ramrati Kuer v. Dwarka Prasad, AIR 1967 SC 1134. (^38) H.I Bhagat v. LL Corporation, AIR 1965 Mad 440 (^39) Mukunda Behera v. Suharna Bewa, AIR 1962 Orissa 3.
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.
10. Section 111 and 111A^46 of the Indian Evidence Act 1872
S.111: Proof of good faith in transactions where one party is in relation of active confidence. — the Section reads, 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.
Illustration:
i) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney. ii) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
S. 111A: Presumption as to certain offences.— the section reads, 1) Where a person is accused of having committed any offence specified in sub-section (2)in:-
a) any area declared to be disturbed area 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.
- The offences referred to in sub-section (1) are the following, namely – a) an offence under section 121, section 121-A, 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).
Exposition of the section 111.
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.
The principle of the rule embodied in this section which was called “the great rule of the Court” is he who bargains in a matter of advantage with a person placing confidence in him is bound to show, that a reasonable use has been made of that confidence; a rule applying to trustees,
attorneys, or anyone else.^47 A person who claims to have acted under abona fide belief must
himself appear as witness to establish his claim. The version of other person in that respect may not be sufficient.^48
(^46) Ins. by Act 61 of 1984, sec. 20 (w.e.f. 14-7-1984). (^47) Gibson v. Jeves, (1801) 6 Ves Jun 266, followed in Nisar Ahmed Khan v. Mohan Manucha (1940) 43 Bom LR 465, 469 (PC) (^48) Jawahar Lal Wali v. State of J&K, (1993) Vol.2 SCC 381.
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”.^49
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 apardanashin lady in favour of her managing agent, every onus in
upon the agent to show conclusively that the transaction was honest and bona fide.
11. Section 112 of the Indian Evidence Act
Birth during marriage, conclusive proof of legitimacy.—the section reads, 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.
Exposition of the section
The section is based on the principle that when a particular relationship, such as marriage, is
shown to exist, then its continuance mustprima facie be presumed.^50 Under the section the fact
that any person was born—
a) During the continuance of a valid marriage between his mother and any man, or b) 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 the parties had no access to each other at any time when he could have been forgotten.
Evidence that a child is born during wedlock is sufficient to establish the legitimacy, and shifts the burden of proof to the party, seeking to establish the contrary.
‘Conclusive evidence’ and ‘conclusive proof’ not different
In a Case^51 , it was held that, there is no difference between ‘conclusive evidence’ and ‘conclusive proof’, the aim of both being to give finality to the establishment of the existence of a fact from the proof of another.
DNA Test
In a Case^52 , The DNA test cannot rebut the conclusive presumption envisaged under section 112 of the Indian Evidence Act. The parties can avoid the rigor of such conclusive presumption only by proving non-access which is a negative proof.
(^49) Raghunathji v. Varjiwandas, (1906) 43 Bom LR 525 (^50) Bhurma v. Dhulappa, (1904) 7 Bom LR 95 (^51) Somwanti v. State of Punjab, AIR 1963 SC 151
(b) Her husband, or his relative, has subjected her to cruelty (as the term is defined in S. 498-A of the Indian Penal Code).
Such a presumption must, however, be drawn by the Court after having regard to all the other circumstances of the case.
Before the provisions of S. 113-A can be applied; it should be shown that the deceased woman had committed suicide. If it is not a case of suicide, but of accidental death, the presumption of abetment by the husband or his relative does not arise.^55
The words “ having regard to all the other circumstances of the case” in this section give wide
powers to the Court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide.^56
The words “all other circumstances of the case” require that a cause and effect relationship between the cruelty and suicide has to be established before drawing the presumption. Therefore, the presumption is not of mandatory nature.^57
Likewise, it must also be shown that the wife had been subject to cruelty within the meaning of that term as defined in S. 498-A of the I. P.C. Thus, it has been held that mere consumption of wine and coming home in the late hours of the night, much against the will of the wife, would not per se amount to “cruelty”.^58
But, if such acts are coupled with regular beating of the wife, demanding dowry, and harassing her to bring more and more money, the case would be one of “cruelty”.^59
In one case, where the wife’s suicide took place more than a month-and-a-half after the demand for dowry was met, and matters were settled, it was held that it would be both unsafe, as well as unjust, to invoke the presumption of guilt under S. 113-A of the Act.^60
Sec. 113B^61 : 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)
No Presumption where charge under s. 302 of IPC
Where the accused was charged under s. 302 of Indian Penal Code, 1860 the presumption under section 113A of Indian Evidence Act 1872, is not available. In such a case conviction and sentence has to be based on cogent and reliable evidence.^62
(^55) Suresh v. State of Maharashtra, 1992 Cri. L.J., 2455 (^56) Krishan Lal v. Union of India (FB), 1994 Cr LJ 3472 (P&H) (^57) Ramesh Kumar v. State of Chhattisgarh, 2001 Cr LJ 4724 (SC), in the case High Court held that the cause of cruelty and beating as indicated in the deceased woman’s letters and the statements of witnesses was forgetful nature and not dowry, presumption not applicable. (^58) Jagdish Chander v. State of Haryana, 1988 Cri. L.J. 1048 (^59) P.B. Pathiv v. State of A.P., 1989 Cri. L.J. 1186 (^60) Samir v. State of West Bengal, 1993 Cri. L. J. 134 (^61) Ins. By Act No. 43 of 1986, s. 12 (w.e.f. Nov 19, 1986) (^62) P. Mani v. State of T.N., AIR 2006 SC 1319
13. Section 114 of the Indian Evidence Act 1872
Court may presume existence of certain facts. —the section reads, 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^63 , human conduct^64 and public and private business^65 , in their relation to the facts of the particular case.
Illustration: The Court may presume—
a) 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; g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him; i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
Exposition of this section
Under section 114 the court may presume the existence of certain facts. According to this section if a fact is likely to have happened:
(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 endeavor 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 term of the section are such as to reduce to their proper position of mere maxims, which are to be applied to facts by the Courts in their discretion, a large number of presumptions to which English law gives, to a greater or less extent, an artificial value. Nine of the most important of them are given by way of illustrations.^66
(^63) Lichhamadevi v. State of Rajasthan, 1988 Cr LJ 1812 (^64) Krishna Lal v. State of Haryana, AIR 1980 SC 1252 (^65) Alka Grewal v. State of M.P., 2000 Cr LJ 672 (MP) (^66) Stephan’s Introduction to Evidence Act. (Courtesy: Google Books, Pg. 1138 para 4)
