Rules relating to Burden of Proof

This article titled ‘Rules relating to Burden of Proof’ is written by Aritra Sarkar and discusses the law related to burden of proof.

I. Introduction

The term burden of proof is dealt with in part III, chapter VII, section 101 to 114A of the Indian evidence act, 1872.

The “burden of proof” is used in two distinct sense, first ‘burden of establishing the case’ and second is ‘the burden of introducing evidence’. The former remains constant and it never changes but the latter shifts from one party to another during the proceeding.

II. Section 101

This section says that whenever a person wants the court to give judgement as to any legal rights or liabilities based on some facts of which he asserts then he will have to prove the existence of those facts.

So, this section basically says that whoever asserts the existence of certain facts will have the burden to prove such facts.

Illustration-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.

Illustration-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. ‘A’ must prove the existence of those facts.

III. Section 102

This section says that the burden of proof lies on the person who would fail in case no evidence is given on either side.

Illustration-I. ‘B’ is in possession of a property. ‘A’ asserts that the property was given to him by B’s father in a will. If no evidence is given on either side, ‘A’ would fail and ‘B’ would be allowed to keep the possession of the property. So, ‘A’ will have the burden of proof.

Illustration-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’.

This test may seem to be satisfactory in ordinary cases but in some cases, there are some situations which make the result of this test confusing. For example, in the illustration II we can see that If no evidence is given on either side then ‘A’ would win since ‘B’ did not prove fraud. But likewise, we can also say that if no evidence is given then ‘B’ can also win since ‘A’ did not prove that there was no fraud.

To solve this problem section 101 can be used, which says that one who asserts the affirmative needs to prove. But it is quite difficult sometimes to say who is asserting the affirmative since by a simple change in the grammar of a sentence an affirmative sentence can be converted into a negative sentence and vice versa. For example, if ‘A’ says that “‘B’ is dead”, then it is affirmative but if ‘A’ says that “‘B’ is not alive” then the sentence is no more affirmative.

To solve this kind of problem a third rule was given by Sir James Stephen in section 103.

IV. Section 103

This section says that the burden of proof of a particular fact lies on that person who wants the court to believe in its existence unless the law itself provides that the burden of proof lies on any particular person.

Therefore, this section says that the burden of proof lies on a person who asserts the affirmative or negative of a particular fact unless the evidence law or any other law in force specifically provides for the burden of proof to be on any particular person. So, this section says that the one who asserts have to prove.

The difference between this section and section 101 is that in section 101 the person who asserts the affirmative has to prove the fact, while in this section the person who asserts a particular fact will have the burden of prove whether it’s positive or negative, affirmative or denying.

V. Application of these sections

In section 101 the first illustration says that the “‘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.” In this case, the burden of establishing the case is on ‘A’ under section 101 and the burden of introducing the evidence is also on ‘A’ under section 103 because in Indian law a man is presumed to be innocent until he is proven guilty and by applying section 103 we do not find any law in force which says that any particular person has to prove the case.

Let’s take illustration II of section 101, in this illustration it is said that “‘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. ‘A’ must prove the existence of those facts.”

In this case, we see that the ‘A’ will have the burden of establishing the case under section 101. Under section 102 he will have the burden to prove the case since he will fail if no evidence is adduced from either side since the presumption is that ‘B’ is the owner under section 110 of the evidence act, 1872.

Under section 103 we see that ‘A’ will have the burden of proving that ‘B’ is not the owner since under section 110 of the evidence law it is specifically written that “When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

VI. Section 101 application with case laws

In criminal trials, the burden is always upon the prosecution to prove the case beyond reasonable doubts. In an accusatory system as in India, it is for the prosecution to prove beyond a reasonable doubt that the accused is guilty, it is not for the court to speculate how the crime has been committed.[1]

Recovery of articles does not by itself connect anybody with the crime, the connection of the accused with the recovered article must be proved beyond reasonable doubt as said in the case of Nagappa Dondiba v. Kant.[2] In Bishandas v. State of Punjab[3], it was observed that total silence of the accused as to any defence on his part does not lighten the prosecution burden to prove the case satisfactorily.

In the case of M.S. Reddy v. State Inspector of Police, A.C.B., Nellore[4] it was said that the initial burden of proof is on the prosecution. It cannot take advantage of the weaknesses and inconsistencies of the defence. It has to base its proof on its own basing on the evidence that it has acquired. In the case of Gurucharan Singh v. State of Maharashtra[5] it was observed that it is a well-established principle of law that the accused version need not substantiate the defence versions they only have to come forward with a probable and plausible version.

In the case of Ashish Batham v. State of Madhya Pradesh[6], it observed by Justice D. Raju that

“Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond a reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it maybe is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required.”

Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between 'may be true’ and 'must be true’ and this basic and golden rule only helps to maintain the vital distinction between 'conjectures’ and 'sure conclusions’ to be arrived at on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.” Also, in the case of Paramjeet Singh v. State of Uttarakhand[7] it was upheld that the more serious the crime would be stricter the prove is required.

In the case of M.P. Gupta v. State of Rajasthan[8], the prosecution proved that an official has accepted a sum of money intended to be a bribe. The Supreme court said in this case that the accused will only have to prove his case through a balance of probabilities and need not prove his case beyond a reasonable doubt.

In cases where the accused take the plea of alibi, it is an established principle that it is the duty of the accused to substantiate the fact at least to the extent of reasonable probability. This principle was upheld in the case of Jagarnath Giri v. State of Bihar[9] and the court further said that even if the evidence produced by the defence produces a reasonable doubt of his presence at the scene of the crime, he should be given the benefit of the doubt.

The law relating to the plea of alibi has been discussed in a number of cases which has been cited by the court in Jagarnath Giri v. State of Bihar. In Soma Bhai v. State of Gujarat[10], the Supreme Court said that the plea of alibi will have to be proved to the satisfaction of the court.

In State of U.P. v. Sughar Singh[11], the court said that the Burden of substantiating a plea of alibi and making it reasonably probable is on the accused.

In the case State of Maharashtra v. Narasingarao Gangaram Pimple[12] the court said that “It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.”

In Dudh Nath Pandey v. State of U.P.[13] it was said that the plea of alibi will succeed only if it is proved that the accused was so far away from the place of occurrence that he could possibly not be present there at the time when the crime took place.

In the case of Rajesh Kumar v. State of U.P.[14] a person was accused of selling substandard Heeng under the Food Adulteration and prevention Act, 1954. It was shown by him in that case that the food was meant for the consumption of animals and the pricing factor, as well as the public analyst, showed that the product was meant to be marketed for animal consumption. In this case, the court said that the burden to prove otherwise is now on the food inspector who had taken the sample from the accused.

In the case of Krishna Prasad v. Ram Prasad[15], a lady gifted her property to her grandson. The lady was over 90 years old but she was completely infirm and she was totally intelligible. The gift was due to the natural flow of love as the done lost his mother and also his step-mother started torturing him. It was contended in the case that the transaction was a fraud transaction. The court held that burden of proving that the transaction was fraudulent was on the person who alleges it.

In the case of Savithri v. Karthyayani Amma[16], there were suspicious circumstances regarding the execution of a will also there was an allegation of coercion. The court said that in that case, the burden of proof was on the party who alleged coercion.

When a person purchases a property and also gets it registered in another person’s name (benami) and then subsequently he tries to assert his ownership on the property then the burden of proof is on him to prove that fact[17]. In Jaydayal Poddar v. Bibi Hazra[18], a case regarding a dispute in ownership of Benami property. The court said that, “The burden of proving that a particular sale in Benami and the apparent purchaser is not the real owner always rests on the person who asserts it to be so.”

VII. Section 102 application with case laws

The “burden of proof” is used in two distinct sense, first ‘burden of establishing the case’ and second is ‘the burden of introducing evidence’. The former remains constant and it never changes but the latter shifts from one party to another during the proceeding. Section 101 of the Evidence Act refers to the first meaning of burden of proof and this section refers to the second meaning.[19]

In Tukaram v. State of Maharashtra[20], it was held that the prosecution has to prove the ingredients of the offence. In the case of Special Development area v. Pooranlal[21] there was a complaint that the accused was doing unauthorized construction. It was held by the court that the onus is on the complaining authority to prove that the land belongs to it and the accused was doing unauthorized construction on it.

In the case of Aldino Santos Braganza v. Marle Dos Santos Barganza[22], there was a divorce case where it was shown that a letter was written by the wife’s advocate to her husband making imputation that he is living an adulterous life. The court said that the burden of proving that it was not written with her consent or knowledge was on the wife.

In the case of Krishna S. v. State[23], there was a rape case and the accused confessed of the rape in the presence of his parents and other people. Later he contended that the confession was obtained by him through pressure. The court held that the onus to prove the same is on him.

VIII. Section 103 application with cases

Section 103 amplifies the general rule laid down by section 101. Section 101 says that the prosecution has to prove the entire facts which he wants the court to entitle him in the judgement. But in this section, proof of one particular fact is provided.

The first illustration to this section says that ‘A’ wishes the court to believe a particular fact which is that ‘B’ committed the theft and thus it is his burden to prove the same.

Section 39 of CrPC provides that every person should report to the nearest police officer or magistrate about certain offences that he knows or seen to have been committed. If he does not do that the burden of giving a reasonable excuse is upon him.

This is one of the cases that the second part of section 103 of the Indian evidence act provides i.e. “if the law itself provides that the burden of proof lies on any particular person”. In this case, the law (here it is section 39 of CrPC) provides the burden on the person who did not give information to the nearest police officer or magistrate.

In the case of Mer Nagiam Asha v. Punja Kana[24] it alleged that a person has the right of way. The court held that it was for that person to prove that he was having such right and it was not for the other party to prove that he was not having the right.

In the case of Prakash Chandra v. Managing director, ORTCO[25] a man was protesting against the nationalisation of roads. The court said that it was for him to prove that it will not serve the national purpose.

Sections 101 to 103 deals with the burden of proof in general while section 104 to 114 deals with case where the burden of proof lies to a particular person.

IX. Section 104

This 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.

The illustration of this section explains it well, the first illustration says that A wishes to prove a dying declaration by B. A must prove B’s death. In this case, the fact necessary to be proved is the dying declaration of B and the fact necessary to prove the dying declaration is that B is dead.

Similarly, in the second illustration, the fact needed to be proved is the secondary evidence and the fact needed to be proved for proving the secondary evidence is that the document is unavailable (in this case “lost”), since secondary evidence of documents is applicable only when the document is unavailable.

A telegram is not an authentic document. In the case of Distt. Magistrate v. G. Jothisankar[26] it was said by the court that unless the telegram is confirmed by a signed application, representation or an affidavit, the contents of a telegram will have no authenticity at all.

In the case of Mahboob Sab v. Union of India[27] a person died by falling from a moving train. The railways contended that he was not a bona fide passenger because he was without a ticket. The court held that the burden is on the railways to prove that fact.

X. Section 105

This section says 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.

Let’s take the first illustration as an example. According to the first illustration ‘A’ murdered ‘B’ and said that by reason of unsoundness of his mind he was not able to understand the nature of his act. Here ‘A’ is the accused so he will have the burden of proof that his case falls under the general exception of unsoundness of mind.

Similarly, the second illustration says that ‘A’ murdered ‘B’ and took the defence of “grave and sudden provocation”. Therefore, according to this section, the burden is on proving that there was a grave and sudden provocation.

In the case of Subodh Tiwari v. State of Assam[28] the appellants claimed the right of private defence of his own body and the body of another person, the Gauhati high court said that it is for the accused to prove that such conditions existed where they needed the exception of private defence since according to section 105 the court can’t presume the existence of such circumstances.

The meaning of this section is that it is not for the prosecution to examine all possible defences which might be put forward by the defence and to prove that none of them applies. But at the conclusion of the evidence, it is incumbent upon the prosecution to have proved the case.[29] The test is not whether the accused can prove beyond reasonable doubt that he comes within any exception of the Indian Penal Code but whether he has established a reasonable doubt in the case of the prosecution for earning an acquittal. This was said in the case of King-Emperor v. U. Damapala.[30]

In the case of Behram Khurshid Pesikaka v. State of Bombay[31], it was said that when a part of the act is declared unenforceable, the onus is on the prosecution to prove to the judge beyond reasonable doubt that the case falls under the enforceable part, no onus is on the accused to prove that the case falls under the unenforceable part.

XI. Section 106

This section says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

The first illustration says that when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

In the case of State of Kerala v. C.K. Bharathan (Dr.)[32], it was said that when the prosecution alleges that certain qualification is written on the signboards and professional papers of a person then the onus is on the accused to show how he was justified in showing those qualifications as the fact is especially known to him.

In Ram Gulam Chaudhury v. State of Bihar[33], a dead body was not found but there was clear witness by the eye witness that the victim was killed by the accused before they took away the body. No explanation was given by the accused as to the disappearance of the dead body. The court said that it can convict the accused people by drawing the presumption that the accused people had a reason to take away the dead body and the reason being that the death was caused by them.

In the dowry death case of Amarjit Singh v. State of Punjab[34], the victim was last seen alive with the accused person and the prosecution also proved that there was a strong motive of the crime and that the death was unnatural and homicidal, the court said that the onus has shifted to the accused to account for how the woman met her death since he is the only person with that special knowledge.

In Rajammal v. State of T.N.[35], a dowry death case, the victim died due to manual strangulation and the victim’s in-laws and the husband’s brother alone were present in the house at the time of her death and even their subsequent conduct pointed towards their guilt. It was held by the court that it is the only possible inference that they did the crime and the onus to prove the contrary is on them.

XII. Section 107

This section says that 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.

In the case of Surjit Kaur v. Jhujhar Singh[36], the question was whether Sardul Singh was dead on May 24, 1970, the supreme court said that because of the fact that the person was alive on May 24 1960 it shall be presumed that the person was alive at the date in question and the onus to prove that the person was dead will be on the appellant who alleges that his death.

But as soon as anything appears which suggests the probability of the person being dead the presumption disappears and the question has to be determined by the balance of proof.[37] The presumption is not a very strong presumption. It can be rebutted even by the slightest evidence to the contrary.

In the case of R v. Lumley[38], a prisoner woman was charged for bigamy. She married a man in 1836 left him in 1843 and married another man in 1847. The prosecution gave no evidence about his age or that the husband was alive. But since the person was alive just 4 years before the marriage the judge, in this case, felt he need to take the presumption that he is still alive and thus convicted her accordingly.

But the Conviction was quashed by Justice Lush who delivered the judgement of the court and said that “In an indictment for bigamy, it is incumbent on the prosecution to prove to the satisfaction of the jury that the husband or wife, as the case may be, was alive at the date of the second marriage. That is purely a question of fact. The existence of the party at an antecedent period may or may not afford a reasonable inference that he was living at the subsequent date.

If, for example, it were proved that he was in good health on the day preceding the second marriage, the inference would be strong, almost irresistible, that he was living on the latter-day, and the jury would in all probability find that he was so. If, on the other hand, it was proved that he was then in a dying condition, and nothing further was proved, they would probably decline to draw that inference. Thus, the question is entirely for the jury. The law makes no presumption either way.”

XIII. Section 108

This section is a proviso for section 107. It says 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.

This principle was upheld in the case of Ramrati Kuer v. Dwarka Prasad[39] and the court said that if a person has not been heard for 7 years then there is a presumption that he is dead and the burden to prove that he is alive is shifted to the other side.[40]

By applying this section, the court only presumes the death of the person in question the court will not presume the time and date of the death. The time or date of the death is totally a matter of evidence and the onus is on the person who claims a right to the establishment on which the fact is essential. This was held in the case of Rango v. Mudiyeppa.[41]

In the case of Jeshankar v. Bai Divali[42], it was held that the earliest date when the death can be presumed is the date when the suit for claiming the right is presumed. It can not have a further retrospective effect.

In the case of Agha Mir Ahmed v. Mudassir Shah[43], it was held that when two individuals perish in common calamity for example shipwreck plane crash train collision etc. and the question is who perished first then in the absence of evidence on that point there will be no presumption that the younger survived the elder and the onus to prove is on the party who asserts the affirmative.

In the case of Ram Bilas v. Jagat Narain Srivastava[44], a house owner died his son was not seen or heard by his children and wife for a span of 22 years until the transaction. At this point, the house was sold by the family. the court said that the son would have been presumed to be dead long before. Therefore, the sale deed was valid even though the son did not sign it.

XIV. Section 109

This section says that when the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it.

When there is existence of a personal relation or a state of things which are once established by a proof then the law will presume the continuation of such relation or state until the contrary is shown or till a different presumption arise from the nature of the subject in question.[45]

Liladhar Ratanlal v. Holkarmal[46] this presumption was upheld and it was said that partnership once shown to exist is presumed to continue until the contrary is proved.

In the relation of landlord and tenant once the relationship is proved it will be presumed to continue until the contrary is proved. Mere non-payment of rent is not sufficient to prove that the relationship between landlord and tenant has been ceased to exist as was said in the case of Rungo Lall Mundul v. Abdul Guffoor.[47]

XV. Section 110

This section says that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

The principle behind this section is that possession is the prima facie evidence of title and anyone who intends to oust the possessor must establish the right to do so, this was said in the case of Churharmal v. CIT.[48] In the case of Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu[49], the Supreme Court observed that the longer the possession greater the presumption of title.

The principle will not apply if the possession is derived by force or fraud. The term possession in this section has to be understood not as juridical possession but as an actual present possession.[50]

In the case of Chief Constructor of Forest v. Collector[51], the plaintiff claimed to be ‘Pattedars’ of the land in question and they proved long and peaceful enjoyment of the land. Although there was no proof of grant of ‘patta’ (title deed) and acquisition of title still a presumption of ownership rose in the favour of the plaintiff.

XVI. Section 111

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.

Let’s take illustration I of the section. in this section, it is said that if a client sells his property to his advocate after that if he tries to set aside the sale on the grounds of fraud then it is the burden of the advocate to prove that the transaction was done in good faith as he was in a position of active confidence.[52]

In the case of Sivamma v. Abdur Rahman[53], a blind and illiterate lady executed a sale deed the execution of which was later denied by her the court said that there is a heavy burden on the purchaser to prove that the lady not only agreed but also knew what was being written on the agreement.

Initially, the plaintiff may have to show the relationship of trust and confidence. When this fact is established then the burden is on the accused to prove that there were fairness and no exploitation the plaintiff may then have to show that there was a fraud and no fairness. This was said in the case of Anil Rishi v. Gurbaksh Singh.[54]

1. Section 111A

This section says that when a person is accused of having committed any offence mentioned in subsection 111A(2) in an area as mentioned in clause (a) and (b) of section 111A(1) 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.

XVII. Section 112

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.

The time period of 280 days is there because it is the gestation period for a human embryo. So even if conception happened on the last day of marriage, we will still have to wait for 280 days until the child is born and if the child is born after 280 days then he will be presumed as the legitimate son of that man. This section does not give us a maximum limit. In the case of Ghulam Mohy-Ud-Din Khan v. Khizar Hussian[55] it was said that a child born within 280 days after the father is dead is presumably his legitimate son.

This section is based on the principle that when a particular relationship such as marriage is shown to exist then its continuance must prima facie be presumed. This was said in the case of Bhima v. Dhulappa.[56]

The presumption under this section is a conclusive presumption that can be disproved only by proving non-access between the parties when under ordinary circumstances the husband could have been the father of the child. Non-access will have to be proved by direct or circumstantial evidence; non-access will have to be proved satisfactorily as the court favours the presumption of legitimacy. This was held in the case of Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana.[57]

XVIII. Section 113

This section says that a notification in the Gazette of India 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.

This section was enacted to exclude the courts of justice to inquire into the validity of the acts of the government as to matters regarding cession of territory to any Indian state. However, this section is now obsolete as the privy council in a case declared that this section is ultra vires.

1. Section 113A

This section says that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

The words “having regard to all the other circumstances of the case” give wide powers to the court to appraise evidence and come to the conclusion of whether there was some extraneous cause for the woman to commit suicide. This was observed in the case of Krishan Lal v. Union of India (FB).[58]

In the case of Amarjit Singh v. State of Punjab[59] the drinking habits of the husband along with coming home late and beating his wife was held as cruelty. But where the husband had the habit of only drinking and coming home late at night and he did not beat the wife was held to be not cruelty in the case of Jagdish Chunder v. State of Haryana[60].

In the case of Devkinandan v. State[61], the wife committed suicide by taking poison. Oral and documentary evidence suggested that the husband was dominating the wife and was subjecting her to mental cruelty. Her letters showed that she was being treated as a chattel. The court held that the actions of the accused were such as to drive his wife to commit suicide. Thus, the presumption under this section prevailed.

2. Section 113B

This section says that 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 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 caused the dowry death.

The explanation to this section says that for the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code, 1860.

According to this section, the court shall presume that a person has caused dowry death if the evidence discloses that immediately before her death she has been subjected to cruelty or harassment or both for or in connection with the dowry, then the court shall presume that the person in question has caused the death. If there is proof that the accused has intentionally caused the death then it will attract section 302 of IPC.[62]

In the case of State of U.P. v. Hari Mohan[63] the housewife wrote a letter to her father that if she is not immediately taken away from the house of her in-laws then her husband, mother-in-law and brother-in-law would murder her. The defence pleaded that the letter was written long before the death but since the letter was admitted to have been written before the death had occurred the court said that even if it was written long before the death it did not make any difference.

In the case of Alka Grewal v. State of M.P.[64] the husband committed suicide. The alleged cause was the cruelty of the wife. It was held that no presumption can be drawn against the wife under this section. So, there is no presumption against the wife where the husband commits suicide.

XIX. Section 114

This section says that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

In the case of State of Karnataka v. David Rozario,[65] it was held that the A presumption of facts is an assumption resulting from one’s experience of the course of natural events of human conduct and human character. Such experience can be used in daily life as well as in the business of courts.

Under this section, the court is entitled to draw an inference that an accused committed a murder if he is found in the possession of property which is proved to be in the possession of the murdered person or if the accused can point out where the property is concealed and admits having concealed it there and if he is not able to provide any reasonable explanation as to his possession of the victim’s property. Therefore, in the case of Ram Prasad v. King Emperor[66], it was said that since the accused is found to be in the possession of the victim’s property and he gave no reasonable explanation therefore he was charged not only with robbery but also of murder.

1. Section 114A

This section says that in a prosecution for rape under clause (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) or (n) of sub-section (2) of section 376 of the Indian Penal Code 1860, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

In Nawab Khan v. State[67] the prosecutrix in her case stated in her evidence that no consent for sexual intercourse was given. The Madhya Pradesh high court held by virtue of this section that sexual intercourse has taken place without consent and the burden to prove the contrary shifts to the accused. This section will come into play once the prosecution proves that sexual intercourse, in fact, has taken place.

This is the amended section, amended by the Criminal Law Amendment Act, 2013 post the December 2012 Nirbhaya incident by the suggestions given by Justice J.S. Verma Committee. The convicts who commits the offence of rape, and fall within any clause between (a) to (n) of sub-section (2) of section 376 of the Indian Penal Code, 1860 because of their special positions due to which they can exert influence on the victim they have been classified differently. The statutory presumption of non-consensual intercourse is by virtue of their special position by which they can exert influence on the victim.[68]

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References

[1] Gandap Bhimanna v. The State of Hyderabad

[2] AIR 1980 SC 1753

[3] AIR 1975 SC 573 at p. 178

[4] 1993 Cr LJ 558 (AP)

[5] 1993 Cr LJ 1622 (Bom)

[6] AIR 2002 SC 3206 at pp. 3212-13

[7] AIR 2011 SC 200

[8] AIR 1974 SC 773

[9] 1992 Cr LJ 648 Pat.

[10] AIR 1975 SC 1453

[11] AIR 1978 SC 191

[12] AIR 1984 SC 63

[13] AIR 1981 SC 911

[14] 2001 Cr LJ 2093 (All)

[15] AIR 2001 Pat 1

[16] AIR 2008 SC 300

[17] Ratanlal and Dhirajlal The Law of Evidence ed. 25

[18] AIR 1974 SC 171

[19] King Emperor v. U. Damapala, (1936) 14 Ran 666 (FB)

[20] AIR 1979 SC 185

[21] 1997 Cr LJ 3484 (MP)

[22] AIR 2008 NOC 2090 (Bom)

[23] 1998 Cr LJ 785 (Kant)

[24] AIR 1981 Guj 141

[25] AIR 1980 Ori 122

[26] AIR 1993 SC 2633

[27] AIR 2011 Kar 8

[28] 1988 Cr LJ 223 (Gau)

[29] Ratanlal and Dhirajlal The Law of Evidence ed. 25

[30] (1936) 17Ran 666 (FB)

[31] (1954) 56 Bom LR 575

[32] 1989 Cr LJ 2025 (Ker)

[33] 2001 Cr LJ 4632

[34] 1989 Cr LJ (NOC) 13 (P&H)

[35] 1993 Cr LJ 3029 (Mad)

[36] AIR 1980 SC 274

[37] Ratanlal and Dhirajlal The Law of Evidence pg 539 ed 25

[38] (1869) LR ICCR 196

[39] AIR 1967 SC 1134

[40] H.J. Bhagat v. L.I. Corporation

[41] (1898) 23 Bom 296, 306

[42] (1919) 22 Bom LR 771

[43] (1944) 71 IA 171

[44] 1994 Supp. 3 SCC 113

[45] Ratanlal and Dhirajlal The Law of Evidence p. 543 ed. 25

[46] (1958) 60 Bom LR 203

[47] (1878) 4 Cal 314

[48] AIR 1988 SC 1384

[49] 1991 Supp (2) SCC 228

[50] Ratanlal and Dhirajlal The Law of Evidence p. 544 ed. 25

[51] (2003) 3 SCC 472

[52] Avatar Singh p. 294 ed. 7

[53] 1952 Hyd 668

[54] (2006) 5 SCC 558

[55] (1928) 10 Lah 470

[56] (1904) 7 Bom LR 95

[57] (1954) SCR 424

[58] 1994 Cr LJ 3472 (P&H)

[59] 1939 Cr LJ (NOC) 13 (P&H)

[60] 1988 Cr LJ 1048 (P&H)

[61] 2003 Cr LJ 1502 (MP)

[62] State of Punjab v. Iqbal Singh

[63] (2000) 8 SCC 598

[64] 2000 Cr LJ 672 (MP)

[65] 2002 Cr LJ 4127 (SC)

[66] (1949) Nag 200

[67] 1990 Cr LJ 1179

[68] Ratanlal and Dhirajlal The Law of Evidence p. 607 ed. 25

Edited by- Akriti

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