Assignment

Of
Law of Evidence
On
Burden Of proof

Submitted To: Submitted By: Sneha

Dr. Sabina Class: B.Com.LLB.(Hons.)
Roll No.: 225/15

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 Acknowledgement

Success comes to those who strive for it. To achieve one’s goal, one puts in a lot of hard work
and efficiency. In this process, one takes all the encouraging and helping hands of the people.

I would like to convey my heart full thanks to Dr. Sabina, my teacher and guide, who guided me
through this project and also gave valuable suggestions and guidance for completing this project.
She provided me with this opportunity and whose immaculate knowledge was a key in
completion of this project.

I owe my regards to the entire faculty of the Department of Legal Studies, from where I have
learnt the basics of Law and whose informal discussions, intellectual support and able guidance
was a beacon light for me in the entire duration of this work.

So, with the concrete efforts and utmost honest intentions, I hereby present this project.

- Sneha

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 Table Of Cases

A.P. Pollution Control Board v. Prof. M. V. Nayudu (1999) 2 SCC 718.

Alamgir v. State of Assam (2002) 10 SCC 277.

Amarjit Singh v. State of Punjab 1989, Cri LJ (NOC) 13 (P&H).

Amos v. Hughes (1836) 1 Mood, K.R. 464.

Anand Kumar v. State of M.P., AIR 2009 SC 2155 at p. 2157.

Ashwin Jayantilal Shah v. State of Gujarat, (1986) 3 Crimes 237 (Guj).

Basappa Dattu Hegade v. State of Karnataka, 1994 CriLJ 1602.

Bhoora Singh v. State of UP., 1992 Cr LJ 2294 (All).

C. Chenga Reddy v. State Of A.P. (1996) 10 SCC 193.

Chando Devi v. State of Bihar, 2002 Cri LJ 2783 (Pat).

Corporation of City Bangalore v. Zulekha Bi, (2008) 11 SCC 306.

Crown v. Santa Singh (1945) 26 Lah 137.

Darshan Singh v. Gujjar Singh, (2002) 2 SCC 62.

Dayabhai v. State of Gujarat, AIR 1964 SC 1563.

East Punjab Province v. Bachan Singh, AIR 1957 Punj. 316.

Eshwaraiah v. State of Karnataka, (1994) 2 S.C.C 677.

Gurdayal v. Smt. Malti Devi, AIR 1993 All. 90.

Heirs Kantilal Purushotamdas Patel v. Dahiben Jagdish Rathod, A.I.R. 2003 Guj. 82.

Jethala v. State of Gujarat AIR 1968 Guj. 163.

K. Kusuma Kumari v. Gandhi Surya Bhagwan., A.I.R. 1990 A.P. 63.

King Emperor v. Damapala (1936) 14 Ran 66.

Krishan Lal v, Union of India (FB), 1994 Cr LJ 3472 (P&H).

Lakhjit Singh v. State of Punjab, (1984) Supp. 1 SCC 173.

LIC of India v. Anuradha (2004) 10 SCC 131.

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Miti Bewa v. Daittri Nayak. A.I.R, 1982 Orissa 264.

Moni Kant Tiwari v. Babu Ram Dixit. A.I.R., 1983 SCC 35.

Muhammad Sharif v. Bande Ali, ILR (1911) 34 All 36.

Narain v. Gopal, AIR 1960 SC 100.

Narayan v. Executive Officer, C.P Board A.I.R 1965 Ker 73.

Neelkantan v. Mallika Begum AIR 2002 SC 827.

P.P. Rao v. State of U.P., 1994 Cr U 2632 (AP).

Prem Kanwar v. State of Rajasthan, AIR 2009 SC 1242

Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233.

Ram Gulam Chaudhary v. State of Bihar, AIR 2001 SC 2842.

Ramesh Kumar v. State of Chhattisgarh, 2001 Cri LJ 4724 (SC).

Rangammal v. Kuppuswami, A.I.R. 2011 S.C. 2344 at p. 2350

Razik Ram v. J.S. Chauhan A.I.R 1975 SC 667.

Samir Satnanta v. State, 1993 Cr LJ 134 (Cal).

Sanjay Dutt v. State (1994) 5 SCC 410.

Saroj Satiya v. State, 1996 AIHC 37 (Del).

Shanbhu Nath Misra v. State of Ajmer A.I.R. 1956 S.C. 404.

Shivaji Sahabrao Bobade v. State of Maharashtra 1973 SCC (Cri) 1033.

State of Maharashtra v. Shivaji Anandrao 2002 Cri LJ 4198 (Bom).

State of Punjab v. Iqbal Singh, 1991 Cri LJ 1897.

State of W.B. v. Orilal Jaiswal, AIR 1994 SC 1418.

Subhash Ramchandra Wadekar v. Union of India, AIR 1993 Bom. 64.

Suresh Raghunath Kochare v. State of Maharashtra, 1992 Cr LJ 2455 (Bom).

Tarsem Singh v. State of Punjab AIR 2009 SC 1454.

Usuf v. R., ILR 40 Alld. 284.

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 Table of Contents

Section 101 Burden Of Proof ........................................................................................................................ 6

INITIAL BURDEN ON ONE WHO TAKES AFFIRMATIVE OF THE ISSUE: .................................. 6
AFFIRMATIVE OF AN ISSUE: .............................................................................................................. 6
“BURDEN OF PROOF” AND “ONUS OF PROOF” .............................................................................. 6
PUTTING THE BURDEN OF PROOF ON THE WRONG PARTY:..................................................... 8
Section 102. On Whom Burden Of Proof Lies ............................................................................................. 8
PRINCIPLE BEHIND THE SECTION:................................................................................................... 8
Section 103: Burden Of Proof As To Particular Fact ................................................................................... 9
BURDEN OF PROVING A PARTICULAR FACT ................................................................................ 9
Section 104. Burden Of Proving Fact To Be Proved To Make Evidence Admissible .................................. 9
PROOF OF FACT ON WHICH EVIDENCE BECOMES ADMISSIBLE ............................................. 9
Section 105. Burden Of Proving That Case Of Accused Comes Within Exceptions ................................... 9
BURDEN OF PROVING EXCEPTION IN CRIMINAL CASES ......................................................... 10
Section 106: Burden Of Proving Fact Especially Within Knowledge ........................................................ 11
PRINCIPAL BEHIND THIS SECTION ................................................................................................ 11
SCOPE ................................................................................................................................................... 11
FACT SPECIFICALLY WITHIN THE KNOWLEDGE OF A PARTY ............................................... 12
CASES .................................................................................................................................................... 13
Section 107. Burden Of Proving Death Of Person Known To Have Been Alive Within Thirty Year ....... 14
Section 108. Burden Of Proving That Person Is Alive Who Has Not Been Heard Of For Seven Years .... 14
SCOPE .................................................................................................................................................... 15
WOULD NATURALLY HAVE HEARD ............................................................................................. 16
Section 113A. Presumption As To Abetment Of Suicide By A Married Woman ...................................... 16
RETROSPECTIVE APPLICATION ...................................................................................................... 18
LEGISLATIVE INTENT ....................................................................................................................... 18
Section 113-B. Presumption As To Dowry Death ...................................................................................... 18
THE COURT SHALL PRESUME ......................................................................................................... 19
Section 114A. Presumption As To Absence Of Consent In Certain Prosecution For Rape ........................ 20
STRENGTHENED PRESUMPTION OF ABSENCE OF CONSENT .................................................. 20

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INTRODUCTION

Every judicial proceeding has for its purpose, to ascertain some right or liability. These rights
and liabilities arise out of facts which must be proved to the satisfaction of the court.1 Chapter
VII lays down provisions regarding who is to lead evidence and prove the case. These rules are
called rules regarding to ‘Burden of Proof’.

The burden of proof means the obligation to prove a fact. The strict meaning of the term burden
of proof (onus probandi) is this, that if no evidence is given by the party on whom the burden is
passed the issue must be found against him.2

The expression burden of proof really means two different things. It means: (1) sometimes that
the party is required to prove an allegation before judgment is given in its favour; (2) It also
means that on a contested issue one of the two contending parties has to introduce evidence.3

Section 101 defines burden of proof as follows – ‘When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.’

INITIAL BURDEN ON ONE WHO TAKES AFFIRMATIVE OF THE ISSUE:

The Principle of the Section is that a party who wishes the Court to believe in the existence of a
fact and to pass a judgment on the basis of it should have to prove that fact. He who asserts must
prove. If, for example a person wants to recover the possession of a land from the occupier on
the ground that he is the owner of it, he must prove his ownership.4 Similarly, if a party wants the
court to punish a man for theft which he is alleged to have committed he must prove that fact.5

“BURDEN OF PROOF” AND “ONUS OF PROOF”

As said above the burden of proof is of two kinds: (1) burden of proof on pleading, and (2)
burden of adducing evidence. The burden that arises from the pleadings depends upon the facts
asserted or denied and is determined by the rules of substantive and statutory law or by
presumption of law and fact.

1
A. K. Jain, Law of Evidence, 224 (6th ed., 2014).
2
Batuk Lal, The Law of Evidence, 459 (20th ed., 2013).
3
Narain v. Gopal, AIR 1960 SC 100.
4
Corporation of City Bangalore v. Zulekha Bi, (2008) 11 SCC 306.
5
C. Chenga Reddy v. State Of A.P. (1996) 10 SCC 193.

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A files a suit against W, widow of B for declaration that he is owner of all the property left by B
being his adopted son: W the widow denies the factum of adoption. In this case A desires the
court to give judgments to the effect that he is the owner of the property left by B depending on
the fact that he was adopted by B. So he must prove that he was adopted by B.

In this case, the burden of proof lies on A. In this illustration the burden has arisen from pleading
and is determined by rules of substantive law.

The burden of adducing evidence rests on the party who would lose if no evidence is led by any
of the parties. A files a suit on the basis of a bond. B admits the execution of the bond but pleads
that the bonds was taken by practicing fraud upon him. In this case, the execution of the bond is
admitted and if no evidence is led by B on fraud, A will get a decree, B will lose. Therefore, the
burden to lead evidence first lies on B. He will first lead evidence and then A will produce
evidence to rebut the evidence led by B. This kind of burden of proof is sometimes termed as
onus of proof (onus probandi).

Burden of proving the basis of ejection is initially on the landlord.6

AFFIRMATIVE OF AN ISSUE:

In ascertaining which party is asserting the affirmative, the court looks to the Substance and not
the language used. For example, a landlord alleged against his tenant that the tenant did not
repair the premises in question. The defendant pleaded that he “did well and sufficiently repair
the premises” Thus the Plaintiff was alleging a negative fact and the defendant the affirmative of
it. It was held that this was only the grammatical affirmative, and looking at the substance of the
matter the plaintiff had to prove that the premises were not repaired. 7

The court should arrive at the substance of the issue and should require party to begin who in
substance, though may not in form, alleges the affirmative of the issue. Where in a suit for
declaration under section 34 of the Specific Relief Act, 1963, the matters pleaded by the plaintiff

6
Gurdayal v. Smt. Malti Devi, AIR 1993 All. 90.
7
Neelkantan v. Mallika Begum AIR 2002 SC 827.

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were controverted by the defendant; it was held that the matters would have to be positively
proved by the plaintiff. It was not for the defendant to disprove them negatively.8

PUTTING THE BURDEN OF PROOF ON THE WRONG PARTY:

Once the burden of proof is put on the shoulders of the wrong party, the Supreme Court held that
it would vitiate the entire judgment9.

Section 102. On whom burden of proof lies.—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.

ON WHOM THE BURDEN OF PROOF LIES:

The section tries to locate the party on whom the burden of lies. The burden of proof lies upon
the party whose case would fail if no evidence were given on either side. If A sues B to recover
damages for breach of contract and if neither party gives evidence, A would lose his case.
Therefore burden lies upon A to prove that there was a contract between him and B which B has
broken. If B admits the contract, but says that his consent was caused by fraud and if neither
party gives evidence B's case would fail and therefore, burden lies upon B to prove the fraud. In
an action for breach contract to emboss Calico in a workmanlike manner, the defendant pleaded
that he had done the work in accordance with the contract, ANDERSON, B., ruled that the
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plaintiff should prove his case and said: Questions of this kind were not to be decided by
simply ascertaining on which side the affirmative in point of form, lay: the proper test is, which
party would be successful if no evidence at all were given? Now here, supposing no evidence
were to be given on either side, the defendant would be entitled to the verdict, for it is not to be
assumed that the work was badly executed and, therefore the onus lies on the Plaintiff.

This Principle also verifies the fact, that burden of proof lies upon the party who affirms a fact
rather than upon one who denies it.11 In case of insanity or unsoundness of mind burden of
proving that fact lies on the person who wants to rely on it. The law presumes sanity. 12 In some

8
Heirs Kantilal Purushotamdas Patel v. Dahiben Jagdish Rathod, A.I.R. 2003 Guj. 82.
9
Rangammal v. Kuppuswami, A.I.R. 2011 S.C. 2344 at p. 2350.
10
Amos v. Hughes (1836) 1 Mood, K.R. 464.
11
Moni Kant Tiwari v. Babu Ram Dixit. A.I.R., 1983 SCC 35.
12
K. Kusuma Kumari v. Gandhi Surya Bhagwan., A.I.R. 1990 A.P. 63.

8
cases, however this burden may be imposed upon the person who has to be a beneficiary under
the transaction. The Orissa High Court required the purchaser of land from an illiterate lady to
show that she signed as a free agent and making an intelligent choice in her interest.13

Section 103: Burden of proof as to particular fact.—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.

BURDEN OF PROVING A PARTICULAR FACT

The principle of the section is that whenever a party wishes the court to believe and to act upon
the existence of fact, burden lies upon him to prove that fact. If a party wishes the court to
believe that his opponent has admitted the fact, burden lies upon him to prove the fact of
admission. In an action for damages for wrongful dismissal the plaintiff has to prove that the
dismissal was wrongful and to what damages he is entitled.14

The principal will not be affected by the fact whether the particular fact in question is negative or
affirmative. In an action, for example, for damages for malicious prosecution, the plaintiff wants
the court to believe upon the fact that he was prosecuted without reasonable and probable cause,
and although this is the negative of the issue, the plaintiff has to prove it.15

Section 104. Burden of proving fact to be proved to make evidence admissible.—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.

PROOF OF FACT ON WHICH EVIDENCE BECOMES ADMISSIBLE

Whenever it is necessary to prove any fact, in order to render evidence of any other fact
admissible, the burden of proving that fact is on the person wants to give such evidence. The
burden of proof in the sense of adducing evidence applies not only to matters which are the
subject of express allegation in the pleading, but also to those that relate merely to the
admissibility of evidence or to the construction of the documents. Therefore a party desiring to

13
Miti Bewa v. Daittri Nayak. A.I.R, 1982 Orissa 264.
14
Mercer v. Whall, (1845) 14 L.J.Q.B. 267
15
Abrath v. North Eastern Rly., (1883) 11 QB 440

9
adduce a hearsay evidence or secondary evidence of a lost that deed must first establish the
conditions necessary to its reception.16

Section 105. Burden of proving that case of accused comes within exceptions.—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.

BURDEN OF PROVING EXCEPTION IN CRIMINAL CASES

The section is an important qualification of the general rule that in criminal trial, the burden of
proving everything essential to establishment of the charge against the accused lies upon the
prosecution.17 This general burden never shifts, and it always rests on the prosecution. Sec. 105
is an important qualification of this general rule. This section is an application, perhaps an
extension of the principle laid down in Sec. 103.

In Dayabhai v. State of Gujarat,18 the Court observed that there is no conflict between the
general burden, which is always on the prosecution and which never shifts, and the special
burden that rests on the accused under Sec. 105. In Rabindra Kumar Dey v. State of Orissa,19 it
observed: …this section does not at all indicate the nature and standard of proof required. The
Evidence Act does not contemplate that the accused should prove his case with the same
strictness and rigour as the prosecution is required to prove a criminal charge. …it is sufficient if
the accused is able to prove his case by the standard of preponderance of probabilities as
envisaged by s. 5 of the Evidence Act as a result of which he succeeds not because he proves his
case to the guilt but because probability of the version given by him throws doubt on the
prosecution case and, therefore, the prosecution cannot be said to have established .the charge
beyond reasonable doubt.

16
Batuk Lal, The law of evidence, at p. 499.
17
Usuf v. R., ILR 40 Alld. 284.
18
AIR 1964 SC 1563.
19
(1976) 4 SCC 233.

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SELF- DEFENCE

The burden of proof of self-defence lies on the accused. But he has not proved beyond
reasonable doubt. If by the evidence placed before the court, by the accuse or by the prosecution
a reasonable doubt is created in the mind of the court that the accused might have acted in the
exercise of right of self defence, he is entitled to acquittal.20

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.

PRINCIPAL BEHIND THIS SECTION

The section is not intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt. But the section would apply to cases where the prosecution
has succeeded in proving facts from which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of his special knowledge regarding
such facts, failed to offer any explanation which might drive the court to draw a different
inference.”21 Thus the principle underlying this section 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.22

SCOPE

This section does not cast any burden on an accused person to prove that no crime was
committed by proving facts especially within his knowledge; nor does it warrant the conclusion
that if anything is unexplained which the Court links the accused could explain, he ought
therefore to be found guilty.23It does affect the onus of proving the guilt of the accused. That
onus rests on the prosecution and is not shifted on to the accused by reason of this section."24 It is
where the facts proved by the evidence give rise to a reasonable inference of guilt unless the
same is rebutted and such inference can be negativated by proof of some fact which in its nature

20
Bhikari v. State of U.P., AIR 1966 SC 1
21
Shivaji Sahabrao Bobade v. State of Maharashtra 1973 SCC (Cri) 1033.
22
Razik Ram v. J.S. Chauhan A.I.R 1975 SC 667.
23
King Emperor v. Damapala (1936) 14 Ran 66.
24
Crown v. Santa Singh (1945) 26 Lah 137.

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can only be within the special knowledge of the accused that the burden of proving the fact is on
the accused.25 This section cannot be used to shift the onus of establishing an essential ingredient
of an offence on the accused.26

FACT SPECIFICALLY WITHIN THE KNOWLEDGE OF A PARTY

Where a fact is specifically within the knowledge of a party, the burden of proving that fact lies
upon him. Where a man and a woman were found hiding under a bed in the bed room of the
person who was lying dead of injuries, it was held that the burden lay upon them to explain their
presence and, also the circumstances in which the deceased met his death.27In a case before the
Supreme Court28 a person was prosecuted for drawing travelling allowance from the Government
without in fact travelling. In order to prove that he in fact bought no ticket, a railway clerk
appeared to testify that no second class ticket was issued on the occasion in question. But he also
admitted that ticket could have been bought on the train itself or a third class ticket could have
been converted into a second class ticket on the running train. In these circumstances, it was held
that it was not made out that the fact of the ticket having been bought was especially within the
knowledge of the accused, and, therefore, the principle of section 106 was not applicable. The
prosecution came one and half years after the fact of travelling.

RES IPSA LOQUITOR

Section 106 is based on the principle res ipsa loquitor. In Scott v. London and Catherine docks
Co.29, some bags of sugar which were on the crane fell upon a custom’s officer when he went to
defendants premises in his routine duty. The court held that the burden of prove no negligence
was on the defendant because such an accident would not occur on the crane being properly
managed and the fact of proper management of crane could be only in the knowledge of the
defendant.

25
Narayan v. Executive Officer, C.P Board A.I.R 1965 Ker 73.
26
Jethala v. State of Gujarat AIR 1968 Guj. 163.
27
Eshwaraiah v. State of Karnataka, (1994) 2 S.C.C 677.
28
Shanbhu Nath Misra v. State of Ajmer A.I.R. 1956 S.C. 404.
29
(1865) 34 LJ Ex 220.

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Res ipsa loquitor was held to apply when a pedestrian was electrocuted from a hanging live
electric wire. The court presumed negligence on the part of the Electricity Board on which lay
the burden of proof that there was no negligence.30

BURDEN OF PROOF IN CASE OF RES IPSA LOQUITOR

Generally speaking in a case of negligence, the burden of proof of negligence on the part of the
defendant lies on the plaintiff. But in cases where the facts speak for themselves showing
negligence of the defendants, the burden lies on the defendant to prove that he was not
negligent.31

CASES

Taking away dead body—Where the corpus delicti (dead body) was not found but there was
the direct evidence of eye-witnesses that the victim was killed by accused persons before they
took away the dead body. No explanation was offered by the accused persons as to what they had
done with the dead body. The court said that they could be convicted by drawing the
presumption that they had a reason to cause disappearance of the dead body and that reason must
have been that the death was caused by them.32

Dowry death-Where the prosecution proved that there was a strong motive for the crime, that
the deceased woman was last seen alive in the company of the accused and that the death was
unnatural and homicidal, it was held that the burden to account for the circumstances of the death
was shifted to the person in whose care the woman met her death. He alone must be in
possession of the knowledge of those circumstances.33 In a case of dowry death, the victim died
due to manual strangulation and the victim's in-laws and husband's brother alone were present in
the house at the time of her death. Their subsequent conduct was consistent only with their guilt.
It was held that the only possible inference was that they participated in the crime and the burden
to prove the contrary lay on them since it was within their special knowledge.

30
Kerala State Electicity Board v. kamlakshmi Amma, AIR 1987 Ker 254
31
Municipal corporation Delhi v. Sobhagwati, AIR 1960 Punj. 300.
32
Ram Gulam Chaudhary v. State of Bihar, AIR 2001 SC 2842.
33
Amarjit Singh v. State of Punjab 1989, Cri LJ (NOC) 13 (P&H).

13
Murder of wife—there was proof that the accused (husband) ill-treated his wife. His presence at
the place of occurrence was also proved. His wife was last seen in his company. The accused had
sustained nail injuries He made an admission in his explanation of his injuries. The court said
that this could be taken into consideration to convict him. Each and every circumstances was
pointing the finger of guilt towards the accused."34

Alibi—Circumstances leading to alibi are within the knowledge of the accused and as provided
in s. 106 of the Act he has to establish the same satisfactorily. The burden of proving alibi rests
on the accused.35

Section 107. Burden of proving death of person known to have been alive within thirty
year- 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.

BURDEN OF PROVING DEATH

This presumption is, however, not always wrong one. It may not only be rebutted by a slight
evidence to the contrary, for example, seven years absence, but the court may not act upon in a
positive proof of his being alive is offered. For example., In R. v. Lumley36: the prisoner, a
woman, was prosecuted for bigamy. She married a man in 1836, left him after seven years in
1843 and married another in 1847. Nothing was heard of her first husband after she left him. The
prosecution gave no evidence of his age, or of the fact that he was still alive. But even so the
judge felt that because he was alive just for years before the marriage, there was the presumption
that he was still alive and consequently the prisoner was convicted.

Section 108. Burden of proving that person is alive who has not been heard of for seven
years-Provided that when 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.

34
State of Maharashtra v. Shivaji Anandrao 2002 Cri LJ 4198 (Bom).
35
Vijayee Singh v. State of U.P. (1990)3 SCC 190.
36
1869 L.R. 1 C.C.R. 196

14
SCOPE

Sections 107 and 108 must be read together because the latter is only a proviso to this rule
contained in the former, and both constitute one rule when so read together.37

There is no presumption in law that a person was alive for seven years from the time when he
was last heard of. These sections 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 down any
presumption as to how long a man was alive or at what time he died. Assuming that the Court
could make a presumption that a person was alive for seven years after he was last heard of, it
depends on the circumstances of each case, whether the Court could draw such a presumption or
not.38
In Subhash Ramchandra Wadekar v. Union of India,39 it was observed that the person who has
not been heard of for seven years should be presumed to be dead. Ordinarily such person should
be presumed to be dead after seven years and not before that. There is no universal rule about the
presumption of date of death. Section 108 of Evidence Act enables a rebuttable presumption
about a person who has not been heard for seven years. In this context the presumption is the
same in English and Indian laws. It is not a conclusive presumption but a rebuttable presumption.

The presumption made under Section 108 is not exhaustive. It is possible for the court that in
existing circumstance and material on record the court can make presumption as to the date of
death. In other words there can be no universal rule about presumption as to date of death.

There is a simple presumption of death and not of the time of death, for which independent
evidence is needed. The onus of proving that death took place at a particular time within the
period of 7 years lies on the person who claims a right for the establishment of which that fact is
essential. In Darshan Singh v. Gujjar Singh,40 the plaintiff claimed succession to the estate of a
person who had not been heard of for 7 years. The High Court held that the date of the suit
should be taken to be the date of the death. The Supreme Court did not approve of this view.

37
East Punjab Province v. Bachan Singh, AIR 1957 Punj. 316.
38
Veeranuna v. Chenna Reddi, (1021) 37 Mad 440.
39
AIR 1993 Bom. 64.
40
(2002) 2 SCC 62.

15
In Muhammad Sharif v. Bande Ali,41 one M mortgaged certain property to the defendant in 1890.
Thereafter he disappeared and nothing was heard of him again. His heirs filed a suit for the
redemption of the mortgage 18 years after M’s absence. They contended that as M disappeared
some 18 years ago, he must be presumed to have been dead for the last 11 years. It was held that
presumption in Sec. 108 does not go further than the mere fact of death. There is no presumption
that he died in the first 7 years or in the last 7 years.

The presumption raised under Sec. 108 is a limited presumption confined only to presuming the
factum of death of the person whose life or death is in issue. Though it will be presumed that the
person is dead but there is no presumption as to the date or time of death. There is no
presumption as to the facts and circumstances under which the person may have died. Further,
the presumption would arise only on lapse of seven years and would not apply on expiry of 6
years and 364 days or any time short of seven years. The presumption can be raised only when
the question is raised in court, tribunal or before an authority who is called upon to decide
whether a person is alive or dead, not otherwise.42

WOULD NATURALLY HAVE HEARD

Where a person is absconding from justice in order to evade a trial upon a charge of murder he
would not communicate with any relations in the natural course of events, because to do so
would reveal his whereabouts and he might be arrested by the police and prosecuted. In such a
case no presumption can arise. Section 108 would not apply because in that case his relations
would not hear of him naturally.43

Section 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 circumstance s of the case, that such suicide had been abetted by her
husband or by such relative of her husband.

41
ILR (1911) 34 All 36.
42
LIC of India v. Anuradha (2004) 10 SCC 131.
43
East Punjab Province v. Bachan Singh, AIR 1957 Punj. 316.

16
Explanation – For the purposes of this section, "cruelty" shall have the same meaning as in
section 498 A of the Indian Panel Code (45 of 1860).

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.44 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.45
For raising the presumption of abetment of suicide under section 113A it must be established that
the women had committed suicide.46 Where the demand for outstanding items of dowry was met
and the matter was settled and there was no evidence of any further dowry demand or torture
thereafter, but the wife committed suicide 11/2 months after the demand was met and the matter
settled, it was held that probability of existence of nexus between cruelty and suicide suffered a
setback and it was unsafe and unjust to invoke presumption of guilt against the accused.47 In a
dowry death case it was found that the deceased was continuously harassed and subjected to
cruelty with demand of dowry, presumption under sections 113A and 113B was held to be
applicable.48 Where the maltreatment by the husband and the in-laws drove the deceased to
commit suicide immediately after her marriage, presumption under section 113A was drawn
against the accused.49
In a dowry death case, presumption that suicide was abetted by the accused-husband of the
deceased could be drawn only when prosecution has discharged the initial onus of proving
cruelty.50 In State of W.B. v. Orilal Jaiswal,51 it was held that the requirement of proof beyond
reasonable doubt in dowry death cases does not stand altered even after the introduction of S.
498A, IPC and S. 113A of the Evidence Act. The court held: Although, the court's conscience
must be satisfied that the accused is not held guilty when there are reasonable doubts about the

44
Krishan Lal v, Union of India (FB), 1994 Cr LJ 3472 (P&H).
45
Ramesh Kumar v. State of Chhattisgarh, 2001 Cri LJ 4724 (SC).
46
Suresh Raghunath Kochare v. State of Maharashtra, 1992 Cr LJ 2455 (Bom).
47
Samir Satnanta v. State, 1993 Cr LJ 134 (Cal).
48
P.P. Rao v. State of U.P., 1994 Cr U 2632 (AP).
49
Saroj Satiya v. State, 1996 AIHC 37 (Del).
50
Basappa Dattu Hegade v. State of Karnataka, 1994 CriLJ 1602.
51
AIR 1994 SC 1418.

17
complicity of the accused in respect of the offences alleged, it should be borne in mind that there
is no absolute standard for proof in a criminal trial and the question whether the charges made
against the accused have been proved beyond all reasonable doubts must depend upon the facts
and circumstances of the case and the quality of the evidences adduced in the case and the
materials placed on record doubt must be of a reasonable man and the standard adopted must be
a standard adopted by a reasonable and just man for coming to a conclusion considering the
particular subject-matter.
RETROSPECTIVE APPLICATION

The section embodies a rule of evidence. It would, therefore, also apply to incidents prior to its
enforcement date, i.e., Dec. 25, 198352. The section is procedural in nature. It would, therefore,
have retrospective operation.53 In the, words of SABYASACHI MUKHERJEE, ‘these provisions
do not create any new offence, (or any substantive right), but merely a matter of procedure and
as such are retrospective and applicable to the present case.’

LEGISLATIVE INTENT

The legislative intent is clear, i.e., to curb the menace of dowry deaths, etc., with a firm hand.
One must keep in mind this legislative in-tent. It must be remembered that since such crimes,
e.g., dowry death cruelty, etc., are generally committed in the privacy of residential homes and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing s. 113-A and 113-B in the Evidence Act tried to strengthen the hands of the
prosecution by permitting a presumption to be raised if certain foundational facts are established
and the unfortunate event has taken place within seven years of marriage. This period of seven
years is considered to be the turbulent one after which the legislature assumes that the couple had
time enough to settle down in life.54

Section 113-B. Presumption as to Dowry Death- When the question is whether a person has
dowry death. committed the dowry death of a woman and it is shown that soon before her
death such woman had 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
52
Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173.
53
State of Punjab v. Iqbal Singh, 1991 Cri LJ 1897.
54
Ibid.

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caused the dowry death. , Explanation.-For the purposes of this section, "dowry death"
shall have the same meaning as in s. 304B of the Indian Penal Code.

When the question at issue is whether a person is guilty of dowry death of a woman and the
evidence discloses that immediately before her death she was subjected by such person to cruelty
and/or harassment for, or connection with, any demand for dowry, s. 113-B, provides that the
courts presume that such person had caused dowry death. Of course if there is proof the person
having intentionally caused her death that would attract s. 302, IPC.55

Section 113B of the Evidence Act being procedural, it has been held that it is retrospective in
operation56

THE COURT SHALL PRESUME

The presumption under section 113B shall be raised only on the proof of the following
essentials:—

( 1) The question before the Court must he 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 3048, 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 taking place soon before her death.57

The provisions of this section, although mandatory in nature, simply enjoin upon the court to
draw such presumption of dowry death on proof of circumstances mentioned therein which
amount to shifting the onus on the accused to show that the married woman was not treated with
cruelty by her husband soon before her death.58 In a dowry death case, it is a condition precedent
to the raising of the presumption that the deceased married woman was subjected to cruelty or
harassment for and in connection with the demand for dowry soon before her death.59

55
Lakhjit Singh v. State of Punjab, (1984) Supp. 1 SCC 173.
56
Bhoora Singh v. State of UP., 1992 Cr LJ 2294 (All).
57
Tarsem Singh v. State of Punjab AIR 2009 SC 1454.
58
Krishan Lal v. Union of India (FB), 1994 Cr LJ 3472.
59
Chando Devi v. State of Bihar, 2002 Cri LJ 2783 (Pat).

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The onus on the accused in case of dowry death is heavier than the onus in presumption of
abetment of suicide by a married woman under Sec. 113-A of Evidence Act.60

In Prem Kanwar v. State of Rajasthan,61 the Supreme Court through Justice Dr. Arijit Pasayat
observed:

A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC
shows that there must be material to show that soon before her death the victim was
subjected to cruelty or harassment. Prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within the purview of the `death
occurring otherwise than in normal circumstances'.

Presumption under Sec. 113-B does not stand automatically rebutted merely because the accused
had been acquitted under Sec. 302, IPC.62

Section 114A. Presumption as to absence of consent in certain prosecution for rape- In a

prosecution for rape under clause (0), clause (b), clause (c), clause (d), clause (e), clause (j),
clause (g), clause (h), clause (i), clause (j), clause (k), clause (f), clause (m) or clause (n) of
sub-section (2) of section 376 of the Indian Penal Code, 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 such woman states in her evidence before the court. That
she did not consent, the court shall presume that she did not consent.

Explanation. - In this section, "sexual intercourse" shall mean any of the acts mentioned in
clauses (0) to (d) of section 375 of the Indian Penal Code.

STRENGTHENED PRESUMPTION OF ABSENCE OF CONSENT

The proceeding provision confined itself to some clauses of Section 376 IPC. The effect of the
new provision is that where the question before the court is whether an intercourse between a
man and a woman was with or without consent and the woman states in the court that it was
against her consent, court would presume that there was no consent. The burden of proving

60
Anand Kumar v. State of M.P., AIR 2009 SC 2155 at p. 2157.
61
AIR 2009 SC 1242.
62
Alamgir v. State of Assam (2002) 10 SCC 277.

20
consent becomes shifted to the accused. If he is not able to prove that there was consent, he
becomes guilty.

Corroboration of the version of the prosecutrix in a rape case is not essential, but the version of a
girl (here minor) may suffer from wide self-contradictions and further medical evidence showing
absence of any mark of vaginal injury may lead to the conclusion that no rape at all was
committed.63

63
Ashwin Jayantilal Shah v. State of Gujarat, (1986) 3 Crimes 237 (Guj).

21
Bibliography

1. A. K. Jain, Law of Evidence (6th ed., 2014).

2. Batuk Lal, The Law of Evidence (20th ed., 2013) Universal Law Publication Co.

3. Avtar Singh, Principles of the Law of Evidence, Central Law Publication (23rd ed., 2018)

4. Batuk Lal, The Law of Evidence, Central Law Agency (21st ed., 2016)

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