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PRESUMPTIONS[1]

Table of Contents

(S. 111A to 114A)

QUESTION BANK

Discuss the law relating to presumptions under the Indian Evidence Act.

SHORT NOTES

Presumptions.

SYNOPSIS

PRESUMPTION MEANS:-
PRESUMPTIONS UNDER EVIDENCE ACT:-
Presumptions as regards offenses in disturbed areas (S.111 A):-
Conclusive Proof (S.41, 112, and 113):-

Examples of Conclusive proof:- –

Presumptions in certain cases of abatement of suicide and dowry death (S. 111A and 113B):-

(i) PRESUMPTIONS AS TO ABATEMENT OF SUICIDE BY A MARRIED WOMAN (S.113 A):-

(ii) PRESUMPTIONS AS TO DOWRY DEATHS (S. 113B):-

Presumptions of the existence of certain facts (S.114):-
a) Presumption of facts or Natural Presumptions:-
b) Presumptions of Law:- –
Presumption as to the absence of consent in certain prosecutions for rape

(S. 114A):

I. PRESUMPTION MEANS:-

A presumption is the rule of law that courts and judges shall draw a particular inference from a particular fact or particular evidence unless and until the truth of such inference is disproved (Refer to topic oral and documentary evidence).

In other words, the presumption is an inference drawn by the court to the truth of a particular fact from other known or proved facts. It is the rule of evidence that the burden of proving fact (burden of proof) lies on him who asserts fact positively or upon him who will fail if the evidence is not brought. Therefore, in civil cases, a plaintiff has to prove his case, whereas in criminal proceedings, the prosecution has to prove a case against the accused beyond a reasonable doubt. However, when a law allows presumption, the party does not need to prove that fact. For e.g. according to the Negotiable Instrument Act, it is presumed that when one person issues a cheque or negotiable instrument in favour of another, it is issued for the discharge of some liability. Accordingly, Matrimonial Laws presume that when the child is born out of valid wedlock, it is the legitimate child of his father. In these cases, the person whose favour cheque is drawn (drawee) need not prove the liability of the drawer of the cheque in his favour. Similarly, the wife who has filed suit for maintenance for herself and a child need not prove that the child has begotten her from sexual relations with her husband and nobody else.

Under the Law of Evidence, we will study some of the principles of presumptions. Under the Evidence Act, there are certain presumptions which are related to offences in disturbed areas (S. 111 A), judgment in probate and other jurisdictions (S.41), birth during the marriage (S.112), cession of territory (S.113), cases of suicide and dowry deaths (Ss. 113 A and 113B), certain facts (S.114), rape cases (S.114 A). We will discuss these presumptions as follows.

II. PRESUMPTIONS UNDER EVIDENCE ACT:-

We will discuss them one by one.

1. Presumptions as regards offences in disturbed areas (S.111 A):-

It lays down that if any person is accused of having committed any offence punishable under section 121, 121A, 122, or 123 of the Indian Penal Code, or a criminal conspiracy or attempt to commit or abatement of an offence under section 122 or 123 of the Indian Penal Code, in any area which has been declared to be a disturbed area or an area in which there has been extensive disturbance of the public peace for more than a month. It is shown that such person had been in that area where firearms or explosives were used to attack or resist armed forces or forces charged with the maintenance of public order, it shall be presumed unless the contrary is shown, that such person had committed the offence.

2. Conclusive Proof (S.41, 112, and 113):-

S.4 of the Act defines ‘conclusive proof’ as ‘when one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of one fact, regard the other as proved, and shall not allow evidence to be given to disprove it.

Whenever it is mentioned that a fact is ‘Conclusive Proof’ of another fact, the court has no discretion. The court cannot call upon that party to prove that fact by adducing additional evidence, nor can it allow the opposite party to disprove it by adducing evidence. Conclusive proof is the strongest among all the other presumptions.

Examples of Conclusive proof:- –

Final judgments in probate, matrimonial, admiralty, or insolvency jurisdiction are conclusive proof of the matters stated in them (S.41)
Birth during the marriage is conclusive proof of the child’s legitimacy. (S.112)

The fact that any person was born-

(i) During the continuance of a valid marriage between his mother and any man, or

(ii) within two hundred and eight days after its dissolution (the mother remaining unmarried) is 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.

An infant under the age of 7 years cannot be guilty of a crime. (S.82 of the Indian Penal Code)
Proof of cession of territory (S.113):-

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 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.

3. Presumptions in certain cases of abatement of suicide and dowry death (S. 111A and 113B):-

(i) PRESUMPTIONS AS TO ABATEMENT OF SUICIDE BY A MARRIED

WOMAN (S.113 A):-

When the question is whether the commission of suicide by a woman had been abated 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 had subjected her to cruelty, the court may presume (having regard to other circumstances) that such suicide had been abetted by her husband or by such relative of her husband.

Explanation – For the purposes of this section, ‘cruelty’ shall have the same meaning as in S.498 A of the Indian Penal Code.

(ii) PRESUMPTIONS AS TO DOWRY DEATHS (S. 113 B):-

When the question is whether a person has committed the dowry death of a woman, and it is shown that, soon before her death, she had been subjected by that person to cruelty or harassment in connection with any demand for dowry, the court shall presume that such a person has caused the dowry death.

Explanation – The term ‘dowry death’ shall have the same meaning as in S. 498A of the Indian Penal Code. In Kailash v. State of M.P[2]

Facts: The marriage between the accused and the deceased took place in April 1997, and the dead body of the deceased wife was found floating in a well located in the house of the accused in March 1999. Thus, the death of the wife occurred otherwise than under normal circumstances. The demand for dowry was proved to have been made long back, and thereafter, parties started cohabiting together. Thereafter, there was no proof that any harassment or cruelty was exercised.

Held:- The term ‘soon before” used in S. 113B is a relative term, and it cannot be limited by fixing time. Therefore, the trial court confirms the conviction of the accused.

4. Presumptions of the existence of certain facts (S.114):-

A presumption is a rule of law that courts and judges shall draw a particular inference from a particular fact or particular evidence unless and until the truth of such inference is disproved.

Kinds of Presumptions:-

Presumptions may be classified as (Refer to topic ‘Definition’, and the definition of ‘fact’ in it)- Presumptions.

1) Presumptions of fact;

(Natural Presumption)

May presume

(Ss. 86-88, 90, and 114)

2) Presumptions of law

or (Artificial presumptions)

i) Rebuttable Presumption

(Shall Presume)

Ss.. 79-85, 89 and 105

ii) Irrebutable Presumption

(Conclusive Proof)

Ss. 41, 112, and 113)

a) Presumptions of fact or Natural Presumptions:-

Presumptions of fact or natural presumptions are those our mind logically draws without the aid or direction of law. These are the presumptions drawn spontaneously by the operation of our reasoning faculty. These presumptions are generally rebuttable. They are akin to the expression ‘may presume’ S.4 Defines ‘may presume’ and suggest that whenever the Evidence Act provides it, the court may presume a fact, either (i) regard such fact as proved. (Unless and until it is disproved), or (ii) may call for proof.

Presumptions of fact are dealt with by Ss. 86 to 88, S.90 and S.114 of the Act.

b) Presumptions of Law:- –

Presumptions of law or artificial presumptions are inferences of prepositions established by law. In the case of ‘Presumption of law’, no discretion is left to the court, and it is bound to presume the fact as proved until evidence is given by the party interested in rebutting or disproving it.

S.114 embodies the rule of presumption of fact. It provides that the court may presume the existence of a certain fact which it thinks likely to have happened, regard being had to the common course of –

a) natural events,
b) human conduct,
c) public and private business,

-in their relation to the facts of the particular case.

Illustrations

The court may presume-

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;
that an accomplice is unworthy of credit unless he is corroborated in material particulars;

(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 unfavourable to him;

(i) When a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the court shall also have regard to such facts as the following in considering whether such maxims do or do not apply to a particular case before it –

As to illustration (a) – A shopkeeper has a marked rupee in his till soon after it was stolen and cannot account for its possession, specifically, but is continually receiving rupees during his business.

As to illustration (b ) – A, a person of the highest character, is tried for causing a man’s death by negligence in arranging certain machinery. B, a person of equally good character who also participated 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, Band C. three 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 the previous concert highly improbable.

As to illustration (c).-A, the drawer of a bill of exchange was a man of ‘business. B, the acceptor, was young and ignorant, completely under A’s influence.

As to illustration (d).- It has been proved that a river ran on a certain course five years ago, but it is known that there have been floods since that time that 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

As to illustration (g).- A man refuses to produce a document which would bear on a contract of small importance on which he is sued but which might also injure the feelings and reputation of his family:-

As to illustration (h), .-A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked:-

Illustration (i): A bond is in the obligor’s possession, but the circumstances of the case suggest that he may have stolen it.

5. Presumption as to the absence of consent in certain prosecutions for rape (S. 114A):-

S.. 114 A[3] deals with the cases of prosecution for rape under clauses (a), (b), (c), (d), (e), or (g) of S.376 (2) of the Indian Penal Code, where sexual intercourse by the accused is proved, and the question before the court was whether such intercourse was with or without the woman’s consent. In such cases, if the woman, in her evidence, states before the court that she did not consent, the court must presume that she did not consent. The following are such presumptions-

Clauses (a), (b), (c), (d), (e), or (g) of sub-section (2) of S.376 related with presumptions related to the accused who are police officers, public servants, officers of jail, hospital, etc[4]. Clauses (a), (b), (c), (d), (e), or (g) of sub-section (2) of S.376 related to the accused who is a police officer, a public servant, an officer of jail, hospital, etc[5].

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[1] गृहिते [मान्यताओं ]

[2] (AIR 2007 SC 107)

[3] Inserted by the Criminal Law (Amendment) Act, 1983

[4] (a) being a police officer commits rape-

(i) within the limits of a police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed, or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as a such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other places of custody established by or under the law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital takes advantage of his official

position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant, or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape;

shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine:-

Provided that the consent may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years

[5] (a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or