Introductory

Probably Burden of Proof is one of the most crucial and hotly debated issues in Evidence
Law. Crucial in the sense that it plays pivotal role in identifying the party who is
supposed to discharge the burden and hotly debated in the sense that it barely remain
constant with one party and keeps changing hands through out the trial.
The aim of a trial is to reconstruct the facts of a past event so that the courtmay then
apply the law to those facts. And essentially it is the evidence and arguments of the
parties involved in the dispute, that courts rely on to reconstruct the facts. However, the
catch lies in the question how is the finder of fact to proceed in cases of uncertainty, that
is, 'who has the burden of proof?
In this context, it is the principle of evidence law that one who initiates a legal proceeding
against another, has this onus to establish the facts through evidence and arguments. And
in criminal law prosecutor being the one who initiates the proceeding, it is on him/her
where lies the onus of reconstructing the facts to the satisfaction of the court, beyond
reasonable doubt. Because of this necessity of reconstructing facts beyond reasonable
doubt, which in turn is result of the presumption of innocence of the accused, in criminal
cases, unlike civil cases, prosecution is virtually left with all the work of reconstructing
the past and the accused normally have very little to do in the trail, unless accuse have
another side to the story as well. However, there may be another dimension to it as well,
that is, if by any means the accuse while adhering to the reconstructed facts by
prosecution then pleads justifiability of his/her impugned act or pleads defense on the
grounds prescribed by law then the onus of proving that such grounds of defense exist in
the case lies on the accused.
Burden of proof in Criminal Trial
Crime is proven affirmatively and the person accused of criminal act can be convicted
only after the case against him is proven beyond reasonable doubt. And the burden of
proving the case against the person accused of the crime lies on the prosecution. As the
principle Ei qui affirmat non ei qui negatincumbitprobabtio, he who invokes the aid of
the law should be the first to prove his case, stands and as crime is generally proven
affirmatively, the burden lies on the prosecution. In fact to find out, on whom does the
burden lies it is a matter of common sensethat is, whoever will lose the case if he does
not make his proposition, when all has been said and done is the one on whom the burden
lies .
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Burden of proof has been referred as 'the legal burden,' the risk of non-persuasion,' 'the
fixed burden of proof,' 'the probative burden,' 'the burden of persuasion,onus probandi
and so forth in different texts.
So within the scope of Burden of Proof there are generally three elements, (a) legal
burden, (b) evidential burden and (c) burden of establishing the admissibility of evidence,
that tend to differentiate the types of burden of proof and the degree of burden on the
party.
Evidential burden is the burden of proof in the sense of introducing or adducingthe
evidence. It is also referred as provisional or tactical burden. In a criminal trial
evidential burden requires the prosecution to prove facts sufficient to prevent the bench
from dismissing the charge on the ground that there is no case to answer. That is, this is
the burden to point towards certain evidence making the issue in question a live one, and
that further deliberation on the issue is required before coming to the decision. Apart
from the prosecution the defense may also bear an evidential burden to raise an issue in
certain cases, where the defendant wishes to raise a defense involving facts which do not
form part of the prosecutions case, for instance plea of defense on the ground of self
defense, duress, intoxication, insanity, accident and so forth.
Along with evidential burden there also lies the legal burden, legal burden is considered
burden proper. That is, legal burden tend to represent the whole doctrine of burden of
proof. Thus, it is under legal burden that prosecution has the duty to prove the guilt of the
accused beyond reasonable doubt. And this burden being normally credited to the
prosecution to establish the case.The legal burden is about the burden of proof as a matter
of law, whereby, evidence is produced to establish the case. This burden rests upon the
party, who substantially asserts the affirmative of the issue. It is fixed at the beginning of
the trial by the state of the pleadings, or their equivalent, and it is settled as a question of
law, remaining unchanged under any circumstance whatever.
In criminal case as legal burden is required to be discharged by the prosecution, the
standard of proof involves a greater parameter than the evidential burden.
Shifting of Burden in Criminal Cases
In a criminal trial after the prosecution has established the prima facie case against the
accused, then applying the test of burden as identified earlier that, the burden lies on the
party who will loose the case if no more evidence is produced, it is obvious that now the
defense has to prove otherwise in order not to be convicted. For illustration, in every
criminal trial, the prosecution is the first to begin, and if does nothing he fails. If he
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makes a prima facie case, and nothing is done by the other side to answer it, the
defendant fails. The test, therefore, as to burden of proof is simply to consider which
party would lose if no evidence at all was given, or if no more evidence was given than is
given at any particular point of the trial, because it is obvious that during the controversy
in the trial there are points at which the onus of proof may shift, and at which the tribunal
must say, if the case stopped there, that it must be decided in a particular way. Such being
the test, it is not a burden which rests forever on the person on whom it is first cast, but
as soon as he, in his turn, finds evidence which, prima facie, rebuts the evidence against
which he is contending, the burden shifts until again there is evidence which satisfies the
demand.
Hence, during a trial it is possible that the burden of proof is shifted to thedefendant, by
those presumptions of law which are rebuttable; by presumptions of facts of the stronger
kind; and by every species of evidence strong enough to establish a primafacie case
against [the prosecution], which being plea of general defense and so forth.
That is, Burden of proving that the defendant acted in exercise of the right of
self`defense, or under grave and sudden provocation or that, by reason of unsoundness of
mind, he was incapable of knowing the nature of the act is on the defendant, and the
court is bound to presume the absence of the circumstances.
In short, if the defendant relies upon some distinct substantive ground of defense, he must
prove it as an independent fact. In such case, it is incumbent upon the defendant to
establish the fact. All authorities agree that the burden is upon the state to make out its
accusation beyond reasonable doubt. However when a defendant desires to set up a
distinct defense, he must prove it. Furthermore, the burden may also lie on the defendant
if the law expressly pronounce so.
General Concept of Burden of Proof
The responsibility to prove a thing is called burden of proof. When a person is required to
prove the existence or truthfulness of a fact, he is said to have the burden of proving that
fact. In a case, many facts are alleged and they need to be proved before the court can
base its judgment on such facts. The burden of proof is the obligation on a party to
establish such facts in issue or relevant facts in a case to the required degree of certainty
in order to prove its case. For example, in a case of murder, prosecution may allege that
all the conditions constituting a murder are fulfilled. All such conditions are facts in issue
and there is an obligation to prove their existence. This obligation is a burden of proof. In
general, every party has to prove a fact that goes in his favor or against his opponent, this
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obligation is nothing but burden of proof. 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.
The important question is who is supposed to prove the various facts alleged in a case. In
other words, on whom should the burden of proving a fact lie? The rules for allocation of
burden of proof are governed primarily by the provisions in Section 101 to 105. The rules
propounded by these sections can be categorized as General rules and Specific rules.
General rules
Rule 1 - As per Section 101(Burden of proof), specifies the basic rule about who is
supposed to prove a fact. It says that whoever desires any Court to give judgment as to
any legal right or liability dependent on the existence of facts which he asserts, must
prove that those facts exist. For example, 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.
Facts can be put in two categories - those that positively affirm something and those that
deny something. For example, the statement, "A is the owner of this land" is an
affirmative statement, while "B is not the owner of this land" is a denial. The rule given
in Section 101 means that the person who asserts the affirmative of an issue, the burden
of proof lies on his to prove it. Thus, the person who makes the statement that "A is the
owner of the land", has the burden to prove it. This rule is useful for determining the
ownership of the initial burden. Whoever wishes the court to take certain action against
the opposite party based on certain facts, he ought to first prove those facts.
However, it is not very simple to categorize a fact as asserting the affirmative. For
example, in the case of SowardvsLegatt1, a landlord suing the tenant asserted that the
tenant did not repair the house. Here, he was asserting the negative. But the same
statement can also be said affirmatively as the tenant let the house dilapidate. In this
case, Lord ABINGER observed that in ascertaining which party is asserting the
affirmative the court looks to the substance and not the language used. Looking at the
substance of this case, the plaintiff had to prove that the premises were not repaired.
Thus, the court should arrive at the substance of the issue and should require that party to
1 (1836) 7C and P613
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begin who in substance, though may not be in form, alleges the affirmative of the issue.
Burden of Proof and Onus of Proof
The term Burden of Proof is used in two difference senses - the burden of proof as a
matter of law and pleading, and the burden of proof as a matter of adducing evidence also
called as onus. There is a subtle distinction between burden of proof and onus of proof,
which was explained in the case of RanchhodbhaivsBabubhai2. The first one is the
burden to prove the main contention of party requesting the action of the court, while the
second one is the burden to produce actual evidence. The first one is constant and is
always upon the claimant but the second one shifts to the other party as and when one
party successfully produces evidence supporting its case. For example, in a case where A
is suing B for payment of his services, the burden of proof as a matter of law is upon A to
prove that he provided services for which B has not paid. But if B claims that the services
were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove
the deficiency in service. Further, if upon providing such evidence, A claims that the
services were provided as negotiated in the contract, the onus again shifts to A to prove
that the services meet the quality as specified in the contract.
The next rule determines who has the onus of proof.
Rule 2 - As per Section 102(On whom the 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. The following illustrations explain this point Illustration 1 - A sues B for land of which B is in possession, and which, as A asserts,
was left to A by the will of C, B's father. If no evidence were given on either side, B
would be entitled to retain his possession. Therefore the burden of proof is on A.
Illustration 2 - 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.
Rule 3 - As per Section 103(Burden of proof as to particular fact), the person who
wants the court to believe in an alleged fact is the one who is supposed to prove that fact
unless it is provided by any law that the proof of that fact shall lie on any particular
2AIR 1982 Guj 308.
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person. For example, (a) A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission. Another example
(b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must
prove it.
Further, as specified in Section 104(Burden of proving fact to be proved to make
evidence admissible), if a person wants the court to believe in a fact that assumes the
existence of another fact, it is up to the person to prove the other fact also. For example,
(a) A wishes to prove a dying declaration by B. A must prove B's death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must
prove that the document has been lost.
Section 111 (Proof of good faith in transactions where one party is in relation of
active confidence):

This section provides that where a person is so related to another in a position of active
confidence, the burden of proving good faith of any transaction between them lies on the
person in good faith. According to Section 111 an active confidence is imposed upon a
person in good faith. The active confidence means and indicates the relationship
between the parties must be such that one is bound to protect the interest of other.
A relationship of active confidence stands between the contracting parties when one
imposed the duty of good faith upon another who occupies position of trust and
confidence.
Such relationship exists in cases such as, father and sons; advocate and client; doctor and
patient; husband and wife etc.
Proof of active confidence:
Section 111 applies to the circumstances where there is valid transaction between the
parties and one of them is accruing benefit from the transaction without acting in good
faith or is taking advantage of his position. In such cases the burden of proving good faith
of the transaction is on the transferee or beneficiary and the relationship of active
confidence must be proved. The burden of proving good faith in transaction would be on
defendant, dominant party i.e. the party who is in position of active confidence.
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Active confidence indicates that the relationship between the parties must be such that
one is bound to protect the interests of the other.
Fiduciary relationship:
Where a confidence is imposed by one party to another during the course of transaction,
the fiduciary relationship may arise if there arises conflict of interests between the parties.
Where a fiduciary or quasi-fiduciary relationship exists, the burden of sustaining a
transaction between the parties rests with the party who stands in such relation and is
benefited by it. When Director issuing additional shares has no fiduciary duty to inform
the current shareholders about the benefit and the question of burden of proving bona fide
of director does not arise. In a transaction entered into by a pardanashin lady in favour of
her managing agent, every onus in upon the agent to show conclusively that the
transaction was honest and bona fide.

Specific Rules
These rules specifically put the burden on proving certain facts on particular persons Rule 1 - As per Section 106(Burden of proving fact especially within the knowledge ),
when any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him. 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. For example, A is charged with traveling on a railway without a
ticket. The burden of proving that he had a ticket is on him.
Rules of Presumption - Section 107says that if a person was known to be alive within
30 years the presumption is that he is alive and the burden of proving that he is dead is on
the person who affirms it.
Section 108 says that if the person has not been heard of for seven years by those who
have naturally heard from him if he had been alive, the presumption is that the person is
dead and the burden of proving that he is alive is shifted to the person who affirms it. But
no presumption can be draw as to the time of death.
Sections 109 establishes the burden in case of some relations such as landlord and
tenant, principle and agent etc. Further sections specify the rules about burden of proof in
case of terrorism, dowry death, and rape.

111A. Presumption as to certain offences:

Where a person is accused of having committed any offence under section 121, Section
121A Section 122 or Section 123 of the Indian Penal Code (45 of 1860);criminal
conspiracy or attempt to commit, or abatement of, an offence under section 122 or
Section 123 of the Indian Penal Code (45 of 1860) in () any area declared to be a disturbed areas under any enactment, for the time being in
force, making provision for the suppression of disorder and restoration and maintenance
of public order; or
(b) Any area in which there has been, over a period of more than one month, extensive
disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when firearms
or explosives were used at or from that place to attack or resist the members of any armed
forces or the forces charged with the maintenance of public order acting in the discharge
of their duties, it shall be presumed, unless the contrary is shown, that such person had
committed such offence.
This section was inserted by the Terrorist Affected Areas (Special Courts) Act, 1984
which came into force on 14.7.1984. .

Exceptions Exception 1 - The general rule in criminal cases is that the accused is presumed innocent.
It is the prosecution who is required to establish the guilt of the accused without any
doubt. At the same time, the accused is not required to prove his innocence without any
doubt but only has to create reasonable doubt that he may not be guilty. Section
105 specifies an exception to this general rule. When an accused claims the benefit of the
General Exception clauses of IPC, the burden of proving that he is entitled to such benefit
is upon him.
For example, if an accused claims the benefit of insanity in a murder trial, it is up to the
accused to prove that he was insane at the time of committing the crime.

In the case of K M Nanavativs State of Maharashtra3, SC explained this point. In this

case, Nanavati was accused of murdering PremAhuja, his wife's paramour, while
Nanavati claimed innocence on account of grave and sudden provocation. The defence's
claim was that when Nanavati met Prem at the latter's bedroom, Prem had just come out
of the bath dressed only in a towel; an angry Nanavati swore at Prem and proceeded to
ask him if he intends to marry Sylvia and look after his children. Prem replied, "Will I
marry every woman I sleep with?", which further enraged Nanavati. Seeing Prem go for
the gun, enclosed in a brown packet, Nanavati too went for it and in the ensuing scuffle,
Prem's hand caused the gun to go off and instantly kill him.
Here, SC held that there is a presumption of innocence in favor of the accused as a
general rule and it is the duty of the prosecution to prove the guilt of the accused beyond
any doubt. But when an accused relies upon the general exception or proviso contained in
any other part of the Penal Code, Section 105 of the Evidence Act raises a presumption
against the accused and also throws a burden on him to rebut the said presumption. Thus,
it was upon the defence to prove that there existed a grave and sudden provocation. In
absence of such proof, Nanavati was convicted of murder.

Exception 2 - Admission - A fact which has been admitted by a party and which is
against the interest of that party, is held against the party. If the fact is contested by the
party, then the burden of proof rests upon the party who made the admission. For
example, A was recorded as saying that he committed theft at the said premises. If A
wants to deny this admission, the burden of proof rests on A to prove so.
Exception 3 - Presumptions - Court presumes the existence of certain things. For
example, as per Section 107/108, court presumes that a person is dead or alive based on
how long he has not been heard of. Section 109, presumes that when two people have
been acting as per the relationship of landlord - tenant, principle - agent, etc, such
relationship still exists and anybody who contends that such relationship has ceased to
exist has to provide proof.
Section 110 presumes that the person who has the possession of a property is the owner
of that property. As per Section 113A, 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
3 1962 AIR 605
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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. As
per Section 113B, 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.
Thus, when the presumption of the court is in favor of a party, the burden of disproving it
rests on the opposite party.
A presumption is an acceptance of a fact as true or existent based upon its strong
probability evident from the circumstances. For example, if a man has not been heard
from for 7 years by his closest relatives, the court may believe in that the man is dead.
This is a presumption. Thus, when the court presumes the existence of a fact because of
its strong probability but without a direct or conclusive proof, it is called as presumption.
When a court presumes a fact, the party in whose favor the fact is, is relieved of the initial
burden of proof. For example, as per Negotiable Instruments Acts, every holder of an
instrument is presumed to be a holder for consideration. So if a person A holds a cheque
signed by another person B, it is presumed that A has given consideration for the cheque
and so A does not have to provide any proof of that consideration. Of course, this
presumption only applies at the beginning. The other party is free to provide proof that
disproves the presumption. For example, the opposite party can show letters by the
person or recent photograph of the person showing that he is still alive.
According to English Law, a presumption can be of two kinds - presumption of fact and
presumption of law.
Presumption of Fact
Presumption of fact are those presumption about things or events that happen in day to
day life, which we accept as true due to inference drawn logically and naturally by our
mind. Such as, presumption that a man with blood stained clothes and a knife in his hands
is the murderer. Such presumptions are rebuttable from further evidence.
Presumption of Law
Presumption of law are arbitrary consequences that are annexed by law to particular facts.
They are legal fiction. They may not be same as the inferences that we may ordinarily
draw but the law prescribes that such inference may be drawn. For example, it is a
presumption of law that a child below seven years of age is not capable of committing a
crime. Or that a person who has not been heard from for seven years is dead. Such
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presumptions may or may not be rebuttable depending on the law. For example, the
presumption that a child below seven years of age is not capable of committing a crime
cannot be rebutted. Law presumes the age of the child as a conclusive proof of his
innocence. But the presumption that a person is dead when he is not heard from for 7
years is rebuttable by showing evidence.
May Presume and Shall Presume
Provisions of Section 4, in a general sense, correspond to the above classification. The
first part of this section defines "May Presume" as follows
"May presume" - Whenever it is provided by this Act that the Court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved, or may call
for proof of it. It gives the court a discretionary power to presume the existence of a fact.
Which means that the court may regard the fact as proved unless and until it is disproved.
For example, in the case of Dr T T Thomas vs Elisa4, where a doctor failed to perform
an emergency operation due to lack of consent, the court presumed that the consent was
there since the patient was brought to the hospital. It was up to the doctor to prove that
the consent was not there. The court may also ask for further proof before making the
presumption.
All the presumptions given in Section 114 are of this kind, which 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. For example, the court may
presume that a man who is in possession of stolen goods soon after theft, is either the
thief of has received the goods knowing them to be stolen, unless he can account for his
possession.
The second part of the section for defines "Shall Presume" as follows "Shall presume" - Whenever it is directed by this Act that the Court shall presume a
fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces
the court to presume a fact that is specified by the law unless and until it is disproved.
The court cannot ask for any evidence to prove the existence of that fact but it may allow
evidence to disprove it.
4(1987) ACC 445
11

For example, Section 90 provides that where any document, purporting or proved to be
thirty years old, is producedfrom any custody which the Court in the particular case
considers proper, the Court may presume that the signature and every other part of such
document, which purports to be in the handwriting of any particular person, is in that
person's handwriting, and, in the case of a document executed or attested, that it was duly
executed and attested by the persons by whom it purports to be executed and attested.
Presumption about dowry death of a woman (S. 113B) are of this kind.
Third part of the section defines "Conclusive Proof" as follows "Conclusive proof" - When one fact is declared by this Act to be conclusive proof of
another, the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it. For example, birth during
marriage (S. 112) is a conclusive proof of legitimacy.
S. 112 (Birth during marriage , conclusive proof of legitimacy)
This sectionin simple terms provides that if a child is born during continuance of a lawful
marriage between his mother & a man or within 280 days of its dissolution the mother
of the child remaining unmarried the child would be considered to be the legitimate
son of his father.
This being a conclusive proof the only way that the Father can rebut the presumption
is adduce proof as to non access to Childs mother when the Child could have been
conceived, this being a negative proof is hard to adduce.
When we look into the reasoning behind this notion, the only reason which comes up, is
that it is undesirable to enquire into the paternity of child whose mother and her husband,
had between them, a subsisting marital status and had access to each other. The law
presumes strongly in the favor of the legitimacy of the off-spring. The husband who is
strongly disputing the point of legitimacy of the child, can only rebut on the issue of
access and no-access, otherwise the legitimacy, in every case, is deemed. The very
objective of this section seems to be gender biased, from its commencement. And, to
decide the conclusiveness, only on the basis of argument will not render the purpose of
judiciary in true sense.
The word access in this section means actual sexual intercourse. Access and non
access connote, existence or non-existence of opportunities for marital intercourse.
CHILD BORN DURING THE CONTINUANCE OF VALID MARRIAGE.

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There is a strong presumption that if a child was born during continuance of marriage, it
is immaterial, how soon after the marriage, it was born. Moreover, the Courts had reached
to the conclusion, regarding the parenthood, only because of the fact that the wife and
husband were living in a same room. Here we have to broaden our mentality, while
analyzing this point. Mere living together, does not conclusively decide that they had
intercourse. This is an issue of love, affection and basic understanding between each
other. It is highly probable, in the social system, like ours that they are staying together
only because of social restrictions or because of some obligations but might not have any
commitment for each other. There also arises the possibility that one of the spouse id
eager for a child whereas the other does not feel any need of the child. And, if under such
circumstances if a child is born, then the medical reasoning should be brought into the
scenario, to determine the parenthood of that child.
280DAYS
This section also talks about the time period as to when the child is supposed to be born
but it an entirely medical issue. Even, medical experts cannot tell us the exact day and
time, as to when a child will be born. They could only suggest a certain probable time
period. If we go through the wordings of the section then a time of 280 days is being
seems to be settled. But, there is no rational behind this as why not, 260 or 300 days.
And, even if, the medical experts do not have any firm stand on this point, then from
where did the legal jurists brought the calculated numbers of 280 days.
It is to be kept mind that the birth of a child is a biological process and not a
mathematically equation.
What is the longest period, which in natural human gestation, may be:
1. That this may be 296 days.
2. Most authorities agree in considering that the interval may be as long as 44 weeks or
308 days; but it might also extend to 311 days.
Some of the authorities consider that the interval may extend to 46 weeks-315 to 322
days. In the recent case of State through C.B.I. v. AmaramaniTripathi5 the paternity of a
six months old fetus in the womb of deceased was conclusively established with the help
of DNA test. Further, the Courts, these days, is heavily relying on scientific proofs, in the
cases of murder and rape. Even there are cases where the conviction is made by following
the medical evidences. So, it is high-time that the scientific aptitude should be brought in
5Appeal (crl.) 1248 of 2005

13

the issue of determination of legitimacy of a child.

Presumption and Burden of Proof
Justice Venkataramiah, of SC observed the following, in the case ofSodhi Transport vs State of UP6, - A presumption is not evidence in itself but only
makes a prima facie case for party in whose favor it exists. It indicates the person on
whom the burden of proof lies. When the presumption is conclusive, it obviates the
production of any evidence, but when it is rebuttable, it only points out the party on
whom lies the duty of going forward with evidence on the fact presumed and when that
party has produced evidence fairly and reasonably tending to show that the real fact is not
as presumed the purpose of presumption is over.
Presumption about abatement of suicide by a married woman
Section 113 A - 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.
Explanation - For the purposes of this section, "cruelty" shall have the same meaning as
in section 498A of the Indian Penal Code (45 of 1860).
This section was introduced by the Criminal Law (Second Amendment) Act46 of 1983.
the Indian Penal Code, the Code of Criminal Procedure, 1973and the Evidence Act were
amended keeping in view the dowry deathproblems in India.
The section requires proof that:(1) that her husband or relativessubjected her to cruelty and
(2) that the married woman committed suicide within a period of seven years from the
date of her marriage.
If these facts are proved, the court may presume. The words are notshall presume.
Such a presumption can be drawn only after the court hastaken into account all the
circumstances of the case. The inference wouldthen be that the husband or relatives
61986 AIR 1099
14

abetted her suicide.The court should be extremely careful in assessing evidence under
sec. 113Afor finding out if cruelty was meted out. If it transpires that a victimcommitting
suicide was hyper sensitive to ordinary petulance, discord anddifferences in domestic life
quite common to the society to which the victimbelonged and such petulance, discord and
differences were not expected toinduce a similarly circumstanced individual in a given
society to commitsuicide, the conscience of the Court would not be satisfied for holding
thatthe accused charged of abetting the offence of suicide was guilty.
Presumption as to dowry death Section 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
such woman had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shallpresume that such person had
caused the dowry death. Explanation - For the purposes of this section, "dowry death"
shall have the same meaning as in section 304B of the Indian Penal Code.
Under the section, it is first necessary to prove that such woman hasbeen subjected by
such person to cruelty or harassment and
secondly, such cruelty should have been or in connection with any demand for dowry
and thirdly that this must have been soon before her death.
If these are proved, the court shall presume the person caused the dowry death. Of
course, the words shall presume mean that the court is, in such circumstances, bound to
presume that such person had caused the dowry death but still the presumption is
rebuttable.
In Gurbachan Singh vs. Satpal Singh7, thecircumstantial evidence showed that the wife
was compelled to take the extreme step of committing suicide as the accused person had
subjected her to cruelty by constant taunts, maltreatment and also by alleging that she had
been carrying an illegitimate child. The suicide was committed within seven years after
the marriage. The Supreme Court held that presumption under sec. 113-B could be
drawn.
In this connection, it may be noted that there are a few differencesbetween sec. 113-A and
sec. 113-B. Whereas in sec. 113-A, the legislature used the words may presume and the
words having regard to all the circumstances of the case, sec. 113B uses the words
shall presume and does not use the words having regard to all the circumstances of the
case. On the other hand, sec. 113B uses the words soon before the death and these
71990 Crl LJ 562 (SC)
15

words are absent in sec. 113A. Section 113B deals with dowry death under sec. 304-B,
while sec. 113A deals with abetment of suicide.
After analyzing the sec. 113-B the conclusion drawn is that the current wording of section
is up to the mark and it should not use the words may presume or having regard to all
the circumstances of the case. Having regard to the fact that in spite of all the new
provisions introduced in 1986, dowry deaths are still a regular feature, the existing
provision of shall presume must, in my view, be retained. As stated earlier, even so, the
presumption is rebuttable.
Section 114:Court may presume the existence of certain facts
This section is a classic one and has as its basis various aspects of human conduct. It
refers to facts which the court may presume. It is followed by nine illustrations ill. (a)
to (i) which are in the nature of maxims and they are followed by nine more paragraphs
which refer to the facts which have to be taken into consideration for the purpose of the
maxims referred to in illustration (a) to (i).
The section enables the court to presume the existence of any fact which the court thinks
likely to have happened, regard being had to
(a)

the common course of natural events;

(b)

human conduct; and

(c)

public and private business.

The effect of this provision is to make it perfectly clear that courts of justice are to use
their own common sense and experience in judge in the effect of particular facts, and that
they are to be subject to no particular rules whatever on the subject. The illustrations
given are for the most part, cases of what in English law are called presumptions of law:
artificial rules as to the effect of evidence by which the court is bound to guide its
decisions, subject however, to certain limitations which it is difficult either to understand
or to apply, but which will be swept away by the section (114) in question.

16

It is also important to note that the section uses the words may presume. It is for the
court to raise the presumption or not,and the presumption, even if drawn, is rebuttable.
But no presumption can be safely drawn from another presumption.
Once a presumption is satisfactorily rebutted, it simply vanishes. It cannot again come
back once again. Lamm J. observes in Mackowik vs. Kansas city St. James & CBR
Co.8
presumptions are like bats, flitting in the twilight but disappearing in the sunshine
of facts
Common Course:The words common course of natural events, human conduct and public and private
business. The word common course qualifies not only natural events but also the
words human conduct and public and private business. When the court is prepared to
accept the direct evidence of a witness or an expert, sec. 114 does not come into play.
It is only in their absence, that sec. 114 is resorted to. As to what is common course of
natural events, human conduct and public and private business depends upon the
common sense of the Judge acquired fromexperience of worldly and human affairs,
drawn.tradition or convention.
Illustrations and relevance of certain facts:Illustration are not exhaustive
The illustrations (a) to (i) and the relevance of certain facts in relation to each of them, as
stated in sec. 114,and mentioned in the latter part of the illustrations are not exhaustive.
They are merely a few example of this class of natural presumption, and they do not
exclude the other numerous cases in which such presumption are constantly
drawn. The word used may indicate that the court is not bound to draw the presumption
in any particular case.
Illustration(a)[Stolen Property]
This illustration raises two presumption, that a man who is in the possession of stolen
goods soon after the theft is either the
(1) thief, or
(2) hasreceived the goods knowing them to be stolen, unless he can account for his
possession.

8(94. S.W. 256, 262) = 196 MO, 550

17

But the court shall have regard to the following: (a) A shopkeeper has in his till a marked
rupee soon after it was stolen, and cannot account for its possession specifically, but is
continually receiving rupees in the course of his business.
The presumption under sec. 114 (a) is not confined to cases of theft. It can apply to other
offences also, like breach of trust etc.
The second aspect is that the burden of proving the guilt of theaccused does not shift but
the evidential burden may shift to the accused.
Though, he may give evidence, by cross examination of the prosecution witness, he may
take benefit by showing that there was an alternative case which can throw doubt on his
guilt. In Karnal vs. State9, the Supreme Court observed that the court may draw
presumption to convict the accused where the circumstances indicate that no other
reasonable hypothesis except his guilty knowledge.
But, the more important question is whether in the case of recovery ofsuch goods and
absence of an explanation and no other explanation ispossible, question arises whether
the accused must be held guilty for theftunder sec. 411 IPC, for possession of stolen
goods.
In Union Territory of Goa vs. Boaventura DSouza 10, it was held that presumption
cannot be extended to say that the person in possession of stolen goods must have also
committed the murder in a case of murder to commit robbery unless there are
circumstances to connect the accused with the offence of murder. Otherwise, the
presumption is only that he is guilty of an offence of theft under sec. 411 of IPC.
Illustration (b) [Accomplice]:
The Court may presume that (b) an accomplice is unworthy of credit, unless he is
corroborated in material particulars.
Section 133. An accomplice shall be a competent witness against an accused person but
his evidence is unworthy of credit unless he is corroborated in material particulars:

9AIR 1976 SC 1097

10AIR 1992 SC1199

18

Provided that where the accomplice is a person whose evidence, in the opinion of the
Court, is highly creditworthy as not to require corroboration, a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice.
Illustrations
(a) A, a person of the highest character, is tried for causing a mans death by an act of
negligence in arranging certain machinery. B, a person of equally of good character, who
also took part in the arrangement, describes precisely what was done, and admits and
explains the common carelessness of A and himself. The evidence of B shall have to be
considered by the Court, while deciding on the negligence of A
(b) A crime is committed by several persons. A, B and C, three of the criminals are
captured on the spot and kept apart from each other each gives an account of the crime
implicating D, and the accounts corroborate each in such a manner as to render the
previous concert highly improbable. The variance in the different accounts of facts
given by A, B, C as to the part of D shall be taken into account by the Court while
deciding if D was an accomplice.
This section does not rule out the possibility of conviction on the basis only of the
evidence of an accomplice, while ill (b) requires corroboration. The case in C.R. Mehta
vs. State of Maharashtra11,is on point. There two persons tried to bribe a Minister for a
favour, the Minister informed the Anti Corruption Bureau and the accused persons were
arrested in a trap. On the basis of the evidence of the Minister, whose general integrity
was of a high order, the persons who offered the bribe were convicted.
There is some apparent inconsistency between illustration (b) and sec. 133 in that the
former requires corroboration while the latter suggests that there is nothing illegal if a
person is found guilty on the basis of the uncorroborated testimony of an accomplice.
In the case of Rajuvs State of Mysore12, Bombay High Court has laid down following
four principles with regard to the nature and extent of corroboration-

111993 Crl LJ 2863 (Bom)

121953 Bom. L R
19

(1) It is not necessary that there should be independent confirmation in every detail of the
crime related by the accomplice, is sufficient if there is a confirmation as to a material
circumstance of the crime.
(2) The confirmation by independent evidence must be of the identity of the accused in
relation to the crime, i.e. confirmation in some fact which goes to fix the guilt of the
particular person charged by connecting or tending to connect him with the crime. In
other words, there must be confirmation in some material particular that notonly has the
crime been committed but that the accused committed it.
(3) The corroboration must be by independent testimony, that is by some evidence other
than that of the accomplice and therefore one accomplice cannot corroborate the other.
(4) The corroboration need not be by direct evidence that the accused committed the
crime, it may be circumstantial.
Illustration (c)[Presumption as to consideration] The Court may presume that a bill
of exchange, accepted or endorsed, was accepted or endorsed for good consideration.
This has to read with the latter part of sec. 114 in relation to ill. (c). It says: The Court
shall have regard to the fact that A, the drawer of a bill of exchange, was a man of
business. B, the acceptor was a young and ignorant person, completely under As
influence.
Now, while sec. 114 ill.(c) says that a Court may presume that a bill of exchange,
accepted or endorsed, was accepted or endorsed for good consideration and gives
discretion to the court to draw the presumption or not, sec. 118 of the Negotiable
Instruments Act requires that the court shall draw a presumption that every bill of
exchange and promissory note has been executed for consideration. The presumption,
once raised under bothprovisions, is rebuttable.
No doubt, in sec. 118 of the Negotiable Instruments Act, the presumption is against the
maker. In ill.(c) of the Evidence Act, the presumption is against the acceptor. But still, the
word may is in the ill.(c), while sec. 118 uses the word shall. Both provisions are
complementary to each other and cannot be treated as totally independent.

20

Illustration (d)[Continuity of things] :It says that the Court may presume 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.
In the latter part of sec. 114, in so far as cl. (d) is concerned, it is stated that the Court has
to bear in mind if it is proved that a river ran in a certain course five years ago, but it is
known that there have been floods since that time which might change its course.
Example:- Mt. Everest was in existence ten years ago is strong evidence that it exists yet;
whether the fact of a trees existence a year ago will indicate its continued existence
today will vary according to the nature of the conditions of life in the region.
The presumption under this section has been applied to possession. Once prior
presumption is proved with a person, he is presumed to continue in possession, unless
disproved.In fact, in A.P. Thakur vs. Kamal Singh13, the Supreme Court held that in
appropriate cases, an inference of the continuity of a thing or state of things backwards
may be drawn under this section though on this point there is no illustration.

Illustration (e) [Judicial and official acts]:

The court may presume that judicial and official acts have been regularly performed. It
may be noted that this refers to judicial as also official acts.
In the latter part of sec. 114, it is stated, in connection with illustration (e) as follows: a
judicial act, the regularity of which is inquestion, was performed under exceptional
circumstances.
.
The ordinary rule is omniapraesumuntur rite at solenniteresseactadonecprobetur in
contrarium meaning everything is presumed to be rightly and duly performed until the
contrary is shown.
The presumption under ill. (e) is optional and is no doubt rebuttable.
In State of Haryana vs. Hari RamYadav14, it was pointed out that in cases where the
exercise of statutory power is subject tothe fulfillment of a condition, then the recital
13AIR 1966 SC 605
14AIR 1994 SC 1262
21

about the said condition having been fulfilled in the order raises a presumption about the
fulfillment of the condition, and the burden is on person who states that the condition is
not fulfilled to prove the same.
Illustration (f) [Common Course of Business] The Court may presume that the
common course of business has been followed in particular cases.
In the latter part of sec. 114, it is stated that the Court may keep in mind
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.
While the main illustration is general and refers to common course of business, the
latter part of sec. 114 refers to a specific situation of a letter. Sections 16 and 32(2) of the
Evidence Act also refer to course of business.
Illustration (g)[with holding of evidence]: It states that the Court may presume that
evidence which could be and is not produced would, if produced, be unfavourable to the
person who withholds it.
The latter part of sec. 114 in so far as it relates to ill. (g) states that the Court may also
take into consideration other situations. It says that 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.
The main ill. (g) deals with all types of evidences, oral or documentary. The explanation
in the second half of sec. 114 refers to a case of documentary evidence.
This rule is contained in the maxim: omniapraesumunturcentrasolenniter. Adverse
inference can be drawn only when there is withholding of evidence.
The principle was applied by K. SubbaRao J in Kundan vs. Custodian ofEvacuee
Property15: by holding that the presumption undersec. 118 of the Negotiable Instrument
Act that every negotiable instrument is executed for consideration could be rebutted by
the defendant by asking the Court to draw an adverse inference if the plaintiff who is a
businessman maintaining accounts is withholding the said accounts from Court. The
Court could draw an adverse inference that the accounts of the plaintiff, if produced,
15AIR 1961 SC 1316
22

would not show that the plaintiff had advanced any monies to the defendant and hence it
should be presumed that the negotiable instrument was not supported by consideration.
Illustration (h) [Refusal to answer the question]:
Court may presume 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.
The latter part of sec. 114, relevant to ill. (h) requires the Court to consider:- as to ill
(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) [Documents in the hand of the obligor]: This illustration states that the
Court may presume that when a document creating an obligation is in the hands of the
obligor, the obligation has been discharged.
The latter part of sec. 114 in relation to ill. (i) states that the Court may consider the facts:
as to illustration (i),:- a bond is in possession of the obligor, but the circumstances of the
case are such that he may have stolen it.

Section 114A: Presumption as to absence of consent in certain prosecutions for

rape. It reads as follows:
In a prosecution for rape under clause (a) or clause (b) orclause (c) or clause (d) or clause
(e) or clause (g) of subsection (2) of section 376 of the Indian Penal Code (45 of 1860),
where sexualintercourse by the accused is proved and the question is whether itwas
without the consent of the woman alleged to have been raped and she states in her
evidence before the Court that she did not consent,the Court shall presume that she did
not consent.
This section was inserted by the Criminal Law (Amendment) Act 1983 (43 of 1983)
w.e.f. 25.12.1983. This section was introduced because of the increasing number of
acquittals of accused in cases of rape. If she had been raped at a place where none could
have witnessed as it happens in most cases the prosecution would find it difficult to
prove the offence beyond reasonable doubt. Sometimes, medical or DNA evidence is
available and more often, it is not available.
The presumption is mandatory but is rebuttable.
23

In a recent case in Dilip vs. State of M.P16,thepresumption was raised but it was held that
in view of the infirmities in the evidence, the place of rape was not proved. It was held
that while the sole testimony of the prosecutrix could be acted upon and made the basis of
conviction without being corroborated in material particulars, in view of the infirmities in
the sole testimony of the prosecutrix which contradicted the medical evidence as well as
the evidence of the aunt of the victim to whom she had narrated the incident soon after
the commission of the rape, it was difficult to accept that consent was not there. On the
question of consent, though presumption under sec. 114A was raised, no finding, it was
held, need be recorded because of the finding that the prosecutrix was a willing party. The
appeal was allowed and the appellant was acquitted in the Supreme Court.
CASES:L.I.C. OF INDIA VS ANURADHA17 ON 26 MARCH, 2004
Section 108 lays down a general rule as to presumption of existence of a person. This is
regard to ONLY death of the person, that too after the lapse of seven years and if time
lapsed is only six years and 364 days, the presumption cannot be applied. More
importantly, this presumption is not available as to the time of death of the subject person.
This fact has to be proved by direct or circumstantial evidence.
Facts One Mr. Sham Prakash Sharma, the late husband of Mrs. Anuradha (Respondent
before Supreme Court) had taken a Life Insurance policy (the Petitioner before Supreme
Court). The policy was commenced with effect from February 8, 1986. The premium was
payable every six months and was paid for two years. The respondents husband suddenly
disappeared from Bombay on July 17, 1988 and thereafter he was not traceable and his
whereabouts were not known. The respondent logged a First Information Report (FIR)
with the Police. On July 11, 1988 LIC sent a communication address to Mr. Sham
Prakash Sharma, delivered at his residence, informing that the Insurance Policy had
lapsed for non-payment of premium. On June 29, 1996, the respondent approached the
LIC for release of benefits under the policy proceeding on an assumption that Mr. Sham
Prakash was dead as he had not been seen and heard for seven years. The LIC turned

162001(9) SCC 452

17AIR 2004 SC 2070
24

down the claim of the respondent relying on the rule that the poliy was not alive as
payment of premium being stopped.
The respondent, aggrieved by rejection approached the State Consumer Disputes
Redressal Commission complaining of deficiency of service on the part of Petitioner. It
accepted to the Respondents claim and held that the Rule relied on by the Petitioner had
no relevance in view of statutory presumption arising under Section 108 of the evidence
Act. The Petitioner namely, LIC, preferred an appeal before the High Court and which
was also dismissed.
The Petitioner, LIC, filed an appeal before the Supreme Court against the judgment of
High Court. The Supreme Court held that both High Court and the Commission held
wrong in holding that after the lapse of seven years, when the matter came before the
court, not only death can be presumed but also time of death could be assumed, which
would be the time when the fact of missing was first noticed, the Supreme Court held
under Section 108, only death can be presumed and not the time of death. This fact has to
be proved by the direct or circumstantial evidence, it further held that High Court and
Commission went wrong in holding that on expiry of seven years by the time issue
raised in Consumer Forum or Civil Court, an evidence was addressed that the person was
not heard of for a period of seven years by wife and/or family members of the person
then only the death can be presumed but it could also be assumed that the presumed death
had synchronized with the date when he was reported missing, or date and time could be
correlated to the point of time coinciding with the commencement of calculation of seven
years from the backward of initiation of legal proceedings.
The Supreme Court further held that in order to successful maintain the claim for the
benefit under the insurance policy, it is necessary for the policy to kept alive by punctual
payment of premium under the claim was made. The Apex court also held that the
Petitioner namely, LIC, was justified in turning down the claims by pleading that the
policy had lapsed and the all that could be paid to the Claimants was the paid up value of
the policy.

In nutshell:1. After the lapse of seven years, ONLY and only death could be presumed by the court.
2. There is no presumption of the time of death under Section 108 of Indian Evidence
Act, 1872.
25

3. Time of death has to be proved by independent evidence.

4. The Claimant in order to successfully maintain the claim in such cases, has to continue
to pay premium till the claim is made, failure to payment of premium shall lead to lapse
of policy and disentitle the nominee or the Claimant to pay the entire amount payable
under the policy.

RANGAMMAL V. KUPPUSWAMI AND ORS18.

The take of the Supreme Court in the recent case that burden of proof lies on the person
who first asserts the fact, and not on the one who denies that fact to be true. The
responsibility of the defendant to prove a fact to be true would start only when the
authenticity of the fact is proved by the plaintiff.
This case is related to a property issue, where it is alleged by the appellant that he was
minor at the time when the sale deed of his property was executed, and that he cannot be
made bound by that sale deed.
In the present case, it has been alleged by the original plaintiff that the sale deed was
executed by the legal guardian of the appellant ostensibly as the appellant's mother had to
discharge certain debts which she was owing to the plaintiff's father during her lifetime.
But, the same line of facts was denied by the appellant in the present case. Appellant
stated that the sale deed was executed fraudulently, and her share of property was sold to
a different branch of their family so as to deprive her from her property share. Appellant
further argued that her share of property was included in the partition suit without making
her a party, and stated that she was the only legal heir to claim that property as her only
brother died without getting married. Trial court was not able to appreciate the appellants
denial of allegations, which were made by the respondent. An appeal was filed by the
appellant in this case at Madras High Court followed by 2 nd appeal. High Court while
dealing with the second appeal arising out of the partition suit, cast the burden completely
on the appellant/2nd defendant to prove that the property shown in the sale deed which
fell into the share of the appellant, was not for the purpose of discharge of the liability of
her deceased mother who according to her case was not owing any debt to anyone.
Moreover, it was held by the Madras High Court that appellant was in fact late in alleging
18(2011) 12 SCC 220

26

that she was not aware of the sale deed, or in alleging that the deed which was executed
by her de facto guardian was not binding on her. And that, It is not the appropriate time to
raise this point because if appellant was aggrieved by the sale deed, then she should have
approached the court at an early stage after attaining the age of majority and not after 31
years of the sale deed.
The main dispute in the present case is Who would be liable to prove the sale deed to be
authentic or not authentic as the case may be?
According to Section 101 of the Indian Evidence Act, 1872 defines `burden of proof'
which clearly lays down that whosoever desires any court to give judgment as to any
legal right or law dependent on the existence of facts which he asserts, must prove that
those facts exist. Supreme Court criticised the judgment of the High Court along with the
trial courts judgment stating that the burden to prove the existence of sale deed was
clearly on the plaintiff/respondent in the present.
The Supreme Court stated that High Court and lower appellate court was not able to see
that it was the original plaintiff, who is the respondent in the present appeal, set out the
facts stating that there was a sale which was executed by the de facto guardian of the
appellant to discharge her mothers debt. And, it would be the duty of the respondent to
prove the existence of any such deed. And, the appellants duty to disprove that fact
would arise thereafter.
The present case is quite important when the issue of burden of proof is being
discussed. The duty of the burden to prove the fact would be on the respondent because
the story of sale deed was made by him. The High Court, as per the Supreme Court,
failed to discharge its duty miserably by not setting aside the sale deed as the respondent,
who had relied on it, was not able to prove its existence.

27

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