Every case is the combination of various facts. Parties to the suit have to establish facts which go in his favour or against his opponent. This is called 'burden of proof'. The expression 'burden of proof' is defined under section 101 of the Act, in the following words:
101. Burden of proof.-
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a) 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.
(b) 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.
This section has been divided into two propositions; the first propositions is based on the principle that the time of the Court ought not to be wasted in idle controversies, nor should a party be dragged without factual basis. The second proposition is that, the burden of proof lies on the person who will have to prove the existence of the facts. The facts can be divided into two categories, namely:
(a)Affirmative; and
(b)Negative (those deny it).
Normally, the affirmative facts are easy to prove in comparison to the negative facts. The principle of the section is that a party who wishes the Court to believe in the existence of a fact and to pass a judgment on the basis of it should have to prove the fact. Where the issue was whether the document in question was genuine or sham or bogus, the party who alleged that fact had to prove nothing till the party relying upon the document established its genuineness in the first place; Subhra Mukherjee v. Bharat Coking Coal Ltd., MANU/SC/0162/2000 : AIR 2000 SC 1203: 2000 AIR SCW 865: JT 2000 (3) SC 55: MANU/SC/0162/2000 : (2000) 3 SCC 312: 2000 SCFBRC 230: 2000 (4) SRJ 45: (2000) 2 SCALE 259: 2000 (5) Supreme 88; Paka Venkaiah v. Taduri Buchi Reddy, AIR 2005 (NOC) 31 (AP).
Section 102 of the Act, locates the party on whom the burden of proof lies. This section says that:
102. On whom burden of proof lies.-
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a) 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.
(b) 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 section deals with "burden of proof" in the sense of adducing evidence. It lays down that the burden of adducing the evidence rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were adduced by either side. The burden of proof in the sense of the burden of introducing evidence may and constantly does shift during the trial. There are many cases in which the party on whom the burden of proof in the first instance lies may shift the burden to the other side by proving facts giving rise to a presumption in his favour.
There is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in an evalution of evidence; Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu), (1980) 3 SCC 110: AIR 1980 SC 499: 1980 Cr LJ 220: 1980 All Cr C 302: 1980 SCC (Cri) 546: 1979 Cr App R (SC) 349: 1979 Cr LR (SC) 683: (1980) 1 SCR 604. Therefore, 'burden of proof' is static while 'onus of proof' is dynamic.
Burden of Proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) burden of proof as a matter of adducing evidence. Section 101 deals with the former and section 102 with the later. The first remains constant, but the second shifts; Citing A. Raghavamma v. A. Chenchamma, MANU/SC/0250/1963 : AIR 1964 SC 136: (1964) 1 SCA 593: (1964) 2 SCR 933.
In Civil Cases onus is always on a person who asserts a proposition or a fact which is not self-evident; State Bank of India (Successor to the Imperial Bank of India) v. Shyama Devi, MANU/SC/0360/1978 : AIR 1978 SC 1263: 1978 UJ (SC) 514: (1978) 3 SCC 399. In Criminal case, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and the burden never shifts; State of Maharashtra v. Wasudeo Ramchandra Kaidalwar, MANU/SC/0249/1981 : (1981) 3 SCC 199: AIR 1981 SC 1186: 1981 Cr LJ 884: (1981) 2 Serv LR 68: 1981 Cr LR (SC) 390: 1981 SCC (Cri) 690.
Section 103 of the Evidence Act, provides that:
103. Burden of proof as to particular fact.-
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustrations
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
The principle of the section is that whenever a party wishes the Court to believe and to act upon existence of a fact, burden lies upon him to prove that fact. If a party wishes the Court to believe that his opponent has admitted a fact, burden lies upon him to prove the fact of admission.
As discussed earlier the burden of proof is of two kinds:
(1) burden of proof on pleading, and
(2) burden of adducing evidence.
The burden that arises from pleading depends upon the facts asserted or denied and is determined by the rules of substantive and statutory law or by presumption of law and fact.
A files a suit against W, widow of B for declaration that he is owner of all the property left by B being his adopted son: W the widow denies the factum of adoption. In this case A desires the Court to give judgment to the effect that he is owner of the property left by B depending on the fact that he was adopted by B. So he must prove that he was adopted by B.
In this case the burden of proof lies on A. In this illustration the burden has arisen from pleading and is determined by rules of substantive law.
The burden of adducing evidence rests on the party who would lose if no evidence is led by any of the parties.
In S.J. Ebenezer v. Velayudhan, MANU/SC/0887/1998 : AIR 1998 SC 746: 1998 AIR SCW 449: 1998 (1) All CJ 535: 1998 (2) Mad LJ 50: 1998 (1) Ren CJ 138: MANU/SC/0887/1998 : (1998) 1 SCC 633: 1998 SCFBRC 95: (1997) 7 SCALE 635: 1997 (10) Supreme 539: 1998 (1) UJ (SC) 249; the Apex Court held that where a landlord wants to evict the tenant on ground of genuine need of accommodation, the burden of proving that he genuinely required the accommodation lies on the landlord.
In Neelkantan v. Mallika Begum, MANU/SC/0062/2002 : AIR 2002 SC 827: 2002 AIR SCW 490: JT 2002 (1) SC 433: 2002 (1) Mad LJ 166: MANU/SC/0062/2002 : (2002) 2 SCC 440: 2002 SCFBRC 154: 2002 (1) SLT 548: 2002 (3) SRJ 506: (2002) 1 SCALE 512: 2002 (1) Supreme 369; the occupant of the building in slum area claimed for protection from eviction. Plea of the tenant was that the property was situated in slum area. The landlady denied that the property was situated in slum area, so no protection of Slum Area Act, 1971. The burden to prove that the property was situated in Slum Area would be on tenants.
Where the admissibility of one fact depends upon the proof the another fact, the party who wants to prove it will have to prove the fact on which admissibility depends. Section 104 of the Act provides that:
104. Burden of proving fact to be proved to make evidence admissible.-
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(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.
Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible, the burden of proving that fact is on the person who wants to give such evidence. The burden of proof in the sense of adducing evidence applies not only to matters which are the subject of express allegation in the pleading, but also to those that relate merely to the admissibility of evidence or to the construction of the documents. Therefore, a party desiring to adduce a hearsay evidence or secondary evidence of a lost deed must first establish the conditions necessary to its reception.
Where any petition challenging constitutionality of statute, specific, clear and unambiguous allegation regarding violation of Constitutional provision should be made. The burden is on the person challenging constitutionality; Amrit Banaspati Co. Ltd. v. Union of India, MANU/SC/0249/1995 : AIR 1995 SC 1340.
Sections 101 to 104 nowhere mention that they are to be confined to civil cases only and some of the illustrations appended to these sections are on criminal matters. However, section 105 is confined to criminal cases only. This section provides that:
105. Burden of proving that case of accused comes within exceptions.-
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A.
According to this section, an accused is presumed to be innocent, till proved guilty and to prove guilt burden always lies on the prosecution beyond reasonable doubt. But when the accused took the liability of the crime that the benefit under the exceptions to criminal liability as per chapter IV of I.P.C. the burden of proof lies upon him to establish the circumstances required for the exceptions to criminal liability. Under section 105, there are two kinds of burden of the accused who sets up an execution:
(i)There is the onus laid down of proving the existence of circumstances bringing the case within any of the General Exceptions of the Indian Penal Code or within any special exception or proviso contained in any other part of the Code, or in any law defining the offence.
(ii)There is the burden of introducing or showing evidence which results from the last part of the provision which says "the Court shall presume the absence of such circumstances".
In case of Sidhartha Vashist @ Manu Sharma v. State (N.C.T. of Delhi), MANU/SC/0268/2010 : AIR 2010 SC 2352, it was held that, in case the pistol used in murder case, the onus would be on accused to show where it was, possession and whereabouts of pistol being in special knowledge of accused. When the accused gave evasive or incorrect answers and failed to produce the same, than the adverse inference can be drawn against him under section 106 of the Act.
Presumption is an inference of fact drawn from other known or proved facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that Courts shall draw a particular inference from a particular fact or from a particular evidence, unless and until the truth of such inference is disproved. Presumptions help in determining the probative force of evidence by bringing the estimation of probative force under some inflexible rules excluding judicial discretion.
There are two kinds of presumptions:
(i)May Presume:
Presumption of fact are permissive in the sense that the Court has discretion to draw or not to draw them. They are also rebuttable as their evidentiary value may be negatived by contrary proof. Thus these presumptions afford a provisional proof. That a person found in possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen is a presumption of this type.
(ii)Shall presume:
They are always obligatory; and a judge cannot refuse to draw the presumption. Such presumptions are either (1) rebuttable, or (2) irrebuttable. Rebuttable presumptions of law are indicated by the expression 'shall presume'. They hold good unless and until there is contrary evidence, e.g., the Court shall presume the genuineness of every Government publication. (section 84).
These two kinds of presumptions of law are:
(i)Rebuttable (shall presume); and
(ii)Irrebuttable (conclusive proof).
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(i)It means a presumption which be overthrown by a contrary |
(i)It is drawn so conclusively that con-cantrary evidence is not allowed. It is evidence.Juris et de jure, i.e., incapable of rebuttal. |
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(ii)The Court regard such fact as proved unless and until it is disproved. The Court, here, dispenses with the necessity of formal proof (section 4). |
(ii)The Court shall on proof of one fact regard the other as proved (When one fact is declared to be conclusive proof of another) and shall not allowevidence to disprove it. (section 4) |
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(iii)Examples-A person not heard |
(iii)Examples-A child under a certain |
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of for 7 years is dead, or that a |
age is incapable of committing any |
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bill of exchange has been given |
crime (section 82, IPC) section 41 (final |
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for value. Section 105 (burden |
judgment in probate, matrimonial, ad- |
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of proving that case of accused |
miralty or insolvency jurisdictions are |
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comes within exceptions) and |
conclusive in certain respect), section |
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section 144A (presumption as |
112 (conclusive proof of legitimacy) |
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to absence of consent in certainprosecution of rape) |
and section 113 (valid cession of territory). |
The question of presumption has to be kept distinct from the question of proof. For the purpose of raising the presumption what one has to see is the state of affairs prevailing on the date on which the presumption is sought to be invoked. On the other hand, in order to prove a certain legal relationship between the parties, the Court is not only concerned with the state of affairs prevailing at the time when the question arose, but also with the state of affairs prevailing when the alleged legal relationship is said to have arisen; Chet Ram v. Manjoor Hasan, AIR 1954 AP 441. Suspicion, however, strong, cannot take place of the proof; Union Territory of Goa v. Boaventura D'Souza, MANU/SC/0175/1993 : AIR 1993 SC 1199: 1993 Cr LJ 181: 1992 AIR SCW 3357: 1993 (2) Rec Cr R 702: 1993 SCC (Cri) 999: (1993) Supp 3 SCC 305.
Sections 79 to 90 of the Evidence Act, are founded on the maxim omnio prosumuntur rite essa acta which means all acts are presumed to be rightly done. But these presumptions are only prima facie presumptions and if the documents are incorrect, evidence can be led to disprove them.
The first eight presumptions i.e., sections 79 to 85 and 89 are mandatory and the Court shall have to presume. But other four presumptions under sections 86 to 88 and 90 are discretionary and the Court is at the discretion to presume or not to presume. Let us find out what these sections say:
79. Presumption as to genuineness of certified copies.-
The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized thereto by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper.
80. Presumption as to documents produced as record of evidence.-
Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-
that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.-
The Court shall presume the genuineness of every document purporting to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony, dependency of possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
81A. Presumption as to Gazettes in electronic forms.-
The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.
82. Presumption as to document admissible in England without proof of seal or signature.-
When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.
83. Presumption as to maps or plans made by authority of Government.-
The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
84. Presumption as to collections of laws and reports of decisions.-
The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the Courts of such country.
85. Presumption as to powers-of-attorney.-
The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.
85A. Presumption as to electronic agreements.-
The Court shall presume that every electronic record purporting to be an agreement containing the electronic signatures of the parties was so concluded by affixing the electronic signature of the parties.
85B. Presumption as to electronic records and electronic signatures.-
(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
(2) In any proceedings, involving secure digital signature, the Court shall presume unless the contrary is proved that-
(a)the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
(b)except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall cerate any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
85C. Presumption as to Electronic Signature Certificate.-
The Court shall presume, unless contrary is proved, that the information listed in a Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verfied, if the certificate was accepted by the subscriber.
86. Presumption as to certified copies of foreign judicial records.-
The Court may presume that any document purporting to be a certified copy of any judicial record of any country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.
An officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent therefore, as defined in section 3, clause (43), of the General Clauses Act, 1897 (10 of 1897), shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.
87. Presumption as to books, maps and charts.-
The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published.
88. Presumption as to telegraphic messages.-
The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.
88A. Presumption as to electronic messages.-
The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
Explanation.-For the purposes of this section, the expressions "addressee" and "originator" shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.
89. Presumption as to due execution, etc., of documents not produced.-
The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.
90. Presumption as to documents thirty years old.-
Where any document, purporting or proved to be thirty years old, is produced from 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.
Explanation.-Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This Explanation applies also to section 81.
Illustrations
(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.
(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.
According to section 79, the Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by the law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central or State Government.
Section 80 includes documents produced before the Court, purporting to be a record or memorandum of evidence. Section 81 includes all Government publications ('public documents') e.g., currency notes, judicial paper, postal stamps, etc. Section 83 includes maps and plans made by the authority of Government. Section 84 includes all publications of judicial records or decisions.
Section 85 provides that, the court shall presume authentic, every document purporting to be a power-of-attorney. Here, 'power-of-attorney' means a document by which an agent is given power to act for his principal. Section 85A relates to electronic agreements, while, 85B and 85C are related to 'presumption as to electronic records and digital signature' and 'presumption as to digital signature certificate' respectively.
Section 86.-lays down the presumption as to certified copies of foreign judicial records.
Section 87.-lays down the presumption as to books, maps and charts.
Section 88.-lays down the presumptions as to telegraphic messages.
Section 88A.-lays down the presumption as to electronic messages.
Section 89.-lays down the presumption as to due executive, etc. of documents not produced.
Section 90.-lays down that, where a document is purported or proved to be thirty-year old and is produced from any custody which the Court in particular case considers proper, the Court may presume that signature and every part of document is in that person's handwriting, and in case of document attested or executed that it was duly attested or executed by the person by whom it purports to be attested or executed. The basis of the section is that as time passes, the executants, vendors, witnesses may not be available to prove title, etc.
There is a general presumption of continuity of things. Once a thing is shown to exist, the law presumes that it continues to exist until the contrary is shown. Section 107 of the Evidence Act provides that:
107. Burden of proving death of person known to have been alive within thirty years.-
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
This section provides that if it appears that a person, whose present existence is in question, was alive within thirty years, and nothing whatever appears to suggest the probability of his being dead, the Court is bound to regard the fact of his still being alive as proved. But as soon as anything appears which suggest the probability of being dead; the presumption disappears and the question has to be determined on the balance of proof.
According to section 108 of the Act:
108. Burden of proving that person is alive who has not been heard of for seven years.-
Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
Section 108 materially qualifies the operation and effect of the presumption raised by section 107. As per this section, if a person has not been heard of for seven years it is presumption of law that he is dead the burden of proving that he is alive is shifted to the other side. The presumption of death does not extend to the date of death.
In Darshan Singh v. Gujjar Singh, MANU/SC/0007/2002 : AIR 2002 SC 606: 2002 AIR SCW 201: JT 2002 (1) SC 11: 2002 (1) Land LR 287: MANU/SC/0007/2002 : (2002) 2 SCC 62: 2002 (1) SCJ 208: 2002 (1) SLT 119: 2002 (2) SRJ 424: (2002) 1 SCALE 70: 2002 (1) Supreme 36; the Supreme Court considered the provisions of sections 107 and 108. In this case, the plaintiff claimed succession to the estate of a person who had not been heard of for seven years. The High Court held that the date of the suit should be taken to be the date of death. The Supreme Court disapprove this view and relied on the decision of Privy Council in Lal Chand Marwari v. Mohant Ramrup Gir, AIR 1926 PC 9; and held that, there is no presumption of the exact time of death and the date of death has to be established on evidence by the person who claims a right for the establishment of which that fact is essential. In the case in hand, the plaintiff claimed succession to the estate of Mr. X and, therefore, the burden was upon him to prove the date of death. There is neither any pleading nor an averment by the plaintiff regarding the date of death.
The general rule of law is that every accused is presumed to be innocent till proved guilty. However, section 111A of the Act, is an exception to this general rule. This section provides that:
111A. Presumption as to certain offences.-
(1) Where a person is accused of having committed any offence specified in sub-section (2), in-
(a)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.
(2) The offences referred to in sub-section (1) are the following, namely:-
(a)an offence under section 121, section 121A section 122 or section 123 of the Indian Penal Code (45 of 1860);
(b)criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).]
It is the general presumption of the society that, the husband could be the father of the child who was conceived and born during marriage. This presumption is based upon public policy which requires that every child born during wedlock shall be deemed to be legitimate. Therefore, it is the conclusive presumption of law. Section 112 of the Act, provides for the conditions when this presumption can be rebutted in the following words:
112. Birth during marriage, conclusive proof of legitimacy.-
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.
This section is based on the legal maxim, "Semper praesumiter pro legitimatione puerorum" (it is always to be presumed that children are legitimate). Section 112 is an example of law furthering social objectives by leaning against the tendency to basterdise the child. It does so by making a conclusive presumption in favour of the legitimacy of the child. The basis of the rule contained in section 112 seems to be a notice that it is undesirable to enquire into the paternity of a child whose parents have access to each other:
The following points to be noted:
(i)section 112 refers to the point of time of the birth of the child as the deciding factor and not to the time of conception of that child; the latter point of time has to be considered only to see whether the husband had no access to the mother.
(ii)As legitimacy involves 'sexual intercourse' between husband and wife, there is therefore, a presumption when a child is conceived and born during marriage that such intercourse took place at a time when according to the laws of nature, the husband could be father of child.
(iii)The presumption applies with equal force even where the child is born within a few days or even hours after the marriage. Further, it is immaterial that the mother was married or not at the time of the conception.
In Sethu v. Palani, ILR (1925) 49 Mad 523; a Hindu woman was married to S in Oct. 1903. She was divorced by him in June 1904. She married another man, T, in July 1904 and gave birth to a son in Sept., the same year. Thus, the conception was formed when she was the wife of one and birth took place when she was the wife of another man.
The child was held to be the legitimate child of second husband, the court relying upon the fact that no proof was available of the fact that T could not have had access to her even when she was the wife of S. The marriage of the mother to one person is not considered to be a proof of the lack of access to any other person.
If a man marries a woman not knowing that she is pregnant, he could, by showing that he could not have had access to the woman when pregnancy commenced, make out that the child is not his. But if a person knowing that a woman is pregnant marries her, the child of woman though born immediately after the marriage becomes in law his child unless the man proves that he had no access to the woman when he could have been begotten.
(iv)Section 112 appears to provide a simple presumption of legitimacy which applies to children born during a marriage whether conceived before or after the marriage took place, and to children conceived during the marriage, whether born before the marriage dissolved by the husband's death or otherwise.
(v)The phrase "non-access" implies no-existence of opportunity for physical intercourse. As the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory.
In Chandramathi v. Pazhetti Balan, MANU/KE/0014/1982 : AIR 1982 Ker 68: (1982) 1 DMC 256; a married woman became pregnant even after her husband had undergone vasectomy operation. The Court held that vasectomy was not sufficient by itself to over throw the presumption of legitimacy. No proof was offered to show whether the operation was successful. Nor there was any evidence regarding the fact that parties had no access before the conception.
(vi)Biomedical test-In some recent cases it has been held that only way to rebut presumption under section 112 is by proving non-access, and biomedical evidences like blood test, DNA test, etc. cannot be allowed; Goutam Kundu v. State of West Bengal, MANU/SC/0345/1993 : AIR 1993 SC 2295: 1993 Cr LJ 3233: 1993 AIR SCW 2325: 1993 (2) Crimes 481: JT 1993 (3) SC 443: (1993) 3 SCC 418: 1993 (3) SCJ 206: (1993) 3 SCR 917: 1993 SCC (Cri) 928; Tushar Roy v. Sukla Roy, 1993 Cr LJ 1659: 1993 (1) All Cr LR 313: 1992 Cal Cr LR 401: 1992 (2) CHN 327: 1992 (3) Crimes 1014: 1993 (1) Cur Cr R 642: 1992 Mat LR 377 (Cal). Where, however, such evidences are available, it can be used as a circumstantial evidence.
(vii)It may be noted that an admission by the wife that the child is illegitimate is admissible in evidence.
Where husband filed the petition for divorce and specifically averred that the wife maintained extra marital relations with respondent and the child was born not through him but due to adulterous life of the wife and the wife in her cross-examination expressed no objection for subjecting herself to DNA test, in the circumstances the application filed by the husband to subject wife and her son including husband to DNA test to determine of paternity of son, would be liable to be allowed; Buridi v. Venkata, MANU/AP/0398/2010 : AIR 2010 AP 172.
In the recent past, due to the increasing number of dowry death cases, the Parliament amended the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act, in order to deal effectively not only the cases of dowry death, but also cases of cruelty to married women by their in-laws. Therefore, sections 113A and 113B have been inserted in the Evidence Act. This section provides that:
113A. Presumption as to abetment of suicide by a married woman.-
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other 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).
113B. Presumption as to dowry death.-
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).
This should be noted that, the provision is procedural, therefore, section 113A has retrospective application; Gurbachan Singh v. Satpal Singh, MANU/SC/0034/1990 : AIR 1990 SC 209: 1990 Cr LJ 562: JT 1989 (4) SC 38: 1989 Marriage LJ 602.
Cruelty:-The Apex Court said that the incorporation of section 113A of the Evidence Act, in the statute book depicted a legal presumption though however the time period of within seven years of marriage is a prerequisite for such presumption. The circumstances in the contextual facts and the materials on record substantiate the need of section 113A and having regard to the language used in section 498A of the Indian Penal Code there cannot be any hesitation in coming to a finding that cruelty was writ large as regards the conduct of the appellant towards the deceased. The explanation to section 113A provides that 'cruelty' shall have the same meaning as under section 498A of the Indian Penal Code. With the situation existing and having regard to statutory presumptions the Supreme Court held that the circumstances pointedly point out the accused as guilty persons, as abettors and in the wake of the order of conviction which cannot be interfered with; Pawan Kumar v. State of Haryana, MANU/SC/0167/2001 : (2001) 3 SCC 628: AIR 2001 SC 1324: 2001 Cr LJ 1679: 2001 AIR SCW 1111: 2001 (2) Crimes 1: JT 2001 (3) SC 475: 2001 (2) SCJ 507: 2001 (4) SRJ 207: (2001) 2 SCALE 440: 2001 SCC (Cri) 594: 2001 (2) Supreme 335: 2001 (1) UJ (SC) 749.
Section 113B provides when the question is whether a person has committed the dowry death of a woman, and it is shown that, soon after her death, she had been subjected by that person to cruelty or harassment in connection with any demand for dowry, the court shall presume that such a person had caused the dowry death.
The basic burden is on the prosecution to establish the requirement for application of the presumption, e.g., the incident took place within seven years of marriage; Baljeet Singh v. State of Haryana, MANU/SC/0159/2004 : AIR 2004 SC 1714: 2004 AIR SCW 1230: 2004 (2) Crimes 285: JT 2004 (3) SC 93: (2004) 3 SCC 122: 2004 (2) SLT 320: 2004 (3) SRJ 561: (2004) 2 SCALE 632: 2004 SCC (Cri) 692: 2004 (2) Supreme 279.
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case.
Section 114 provides that:
114. Court may presume existence of certain facts.-
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.
Illustrations
The Court may presume-
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:-
As to illustration (a)-A shop-keeper 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;
As to illustration (b)-A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally 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;
As to illustration (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 other in such a manner as to render previous concert highly improbable;
As to illustration (c)-A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A's influence;
As to illustration (d)-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;
As to illustration (e)-A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
As to illustration (f)-The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
As to illustration (g)-A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
As to illustration (h)-A man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
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 114 is based on the maxim that 'all are presumed to have been done correctly and regularly'. Section 114 authorises the Court to make certain presumptions of facts, without the help of any artificial rules of law. Such presumptions of facts are always rebuttable (i.e., can be disproved by a contrary fact). Looking at so many factors if the court thinks that a particular fact should exist, it presumes the existence of the fact. If, for example, a person refuses to answer a question the Court may presume that the answer, if given, would have been unfavourable to the person concerned. There is the presumption that every person is presumed to intend the natural consequences of his act, that every person charged with a crime is innocent, etc.
(a)That a man in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
(b)That an accomplice is unworthy of credit, unless he is corroborated in material particulars.
(c)That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration.
(d)That a thing or state of things which has been shown to be in existence within a period shorter than that within which such thing or state of things usually ceases to exist, is still in existence.
(e)That judicial and official acts have been regularly performed (if the judicial act was performed under exceptional circumstances, the Court shall have regard to such fact).
(f)That the common course of business has been followed in particular case (if the usual course was interrupted by disturbances, the court shall have regard to such fact).
(g)That evidence which could be and is not produced would, if produced, by unfavourable to the person withholding it (if a man refuses to produce a document which would bear on a contract of small importance on which he sued, but which might also injure the feelings and reputations of his family, the Court shall have regard to such fact).
(h)That, if a man refuses to answer question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him (if the answer might cause loss to him in matters unconnected with the matter in relation to which it is asked, the Court shall have regard to such fact).
(i)That, when a document creating an obligation is in the hands of the obligor the obligation has been discharged (if it appears that obligor may have stolen it, the Court shall have regard to such fact).
In reference to illustration (e), the Supreme Court has observed:
A presumption has to be drawn under section 114(e) that the competent authority must have before it the necessary materials which prima facie establish the commission of the offence charged and that the authority had applied
its mind before tendering the consent; State of Bihar v. P.P. Sharma, MANU/SC/0542/1992 : AIR 1991 SC 1260: 1991 Cr LJ 1438: 1991 AIR SCW 1034: 1991 (2) Crimes 113: JT 1991 (2) SC 147: (1991) 2 SCR 1: 1992 SCC (Cri) 192: (1992) Supp 1 SCC 222.
In Shahnaz Shaharyari alias Shirin Sha-haryari, Nagpur v. Dr. Vijay Yeshwant Gawande, Bombay, MANU/MH/0005/1995 : AIR 1995 Bom 30: 1996 (1) Bom CR 473, after a judicial divorce, the wife was not permitted to say that her signature on the divorce petition was taken by force.
The Supreme Court has observed, commenting on illustration (g), that an adverse inference against a party for his failure to appear in Court can be drawn only in absence of any evidence on record. Where the admission of the parties and other materials on record amply prove the points in issue, no presumption can be raised against the person who has failed to appear in the Court; Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar, (dead) by LRs, (1981) 4 SCC 596: AIR 1981 SC 2235. Similarly, no adverse inference can be drawn against the prosecution if it merely fails to obtain certain evidence e.g., opinion of expert not taken. An adverse presumption cannot be drawn where the party supposed to be in possession of the best evidence has neither been called upon to produce nor directed by the Court to do so; Oriental Fire and General Insurance Company Ltd. v. Bondili Sitharam Singh, MANU/AP/0045/1995 : AIR 1995 AP 268: 1995 (1) ACC 540: 1996 ACJ 242: 1995 (1) APLJ 232: 1995 (1) Andh LT 696: 1995 (2) TAC 488.
In case of State of Madhya Pradesh v. Jiyalal, MANU/SC/1474/2009 : AIR 2010 SC 1451 it was held that in case of sanction to prosecute the order passed by Magistrate in course of official duty the presumption attaches to such order and examination of Magistrate not nacessary (It is a new provision added in 1983 by Act 43 of 1983)
In case of Sidhartha Vashista @ Manu Sharma v. State (N.C.T. of Delhi), MANU/SC/0268/2010 : AIR 2010 SC 2352, the Supreme Court held that nothing on record to prove that newspapers in question have shown the photograph of accused. The photograph taken, when he surrendered before the police, was in muffled face. Thus in absence of any defence the refusal of test Identification Parade by accused on ground that his photograph has appeared in newspaper. Unjustified and adverse inference can be drawn against the accused.
In case of State of Madhya Pradesh v. Jiyalal, MANU/SC/1474/2009 : AIR 2010 SC 1451, the Supreme Court held that the findings of sanction of prosecution was mechanically granted and hence is not sufficient to set aside conviction. The serious prejudice must have been caused to accused thereby.
The fact that the sale deed was got executed under decree of court was not a ground to presume genuineness of sale price mentioned therein; State of Haryana v. Manoj Kumar, MANU/SC/0161/2010 : AIR 2010 SC 1779.
Section 114A says that:
114A. Presumption as to absence of consent in certain prosecutions for rape.-
In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 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 she States in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
According to section 114A, where the question before the Court is whether an intercourse between a man and woman was with or without consent and the woman states in the Court that it was against her consent, the Court shall presume that there was no consent. The burden of proof shifts to the accused. If he is not able to prove that there was a consent, he becomes guilty.
Section 114A was introduced because of the increasing number of acquittals of accused when the victim of rape is an adult woman. If she was really sopped, it was very difficult for her to prove absence of consent. The new provision (inserted in 1983) has brought about a radical change in the Indian law relating to rape cases.
This presumption would apply not only to rape cases, but also to cases of "attempted rape", as for instance, when the victim was disrobed and attempts were made to rape her, which however could not materialize because of intervening circumstances; Fagnu Bhoi v. State of Orissa, 1992 Cr LJ 1808: 1992 (1) Cr LC 405: 1992 (1) Crimes 10: 1991 (72) Cut LT 702.
In a recent case of alleged 'gang rape' of a girl above 16, the F.I.R. was lodged 7 days after the occurrence. The girl admitted that she was desirous of marrying one of the accused, and the chemical examiner's report ran counter to any sexual intercourse, in the circumstances, it was held that the presumption under section 114A could not be invoked; Shatrughan v. State of Madhya Pradesh, 1993 Cr LJ 120.
In Somawanti v. State of Punjab, MANU/SC/0034/1962 : AIR 1963 SC 151: (1963) 1 SCA 548: 1963 (2) SCJ 85: (1963) 2 Mad LJ (SC) 18: (1963) 2 Andh WR (SC) 18: (1963) 33 Comp Cas 745: (1963) 2 SCR 774, the Supreme Court defined the difference between 'conclusive evidence' and 'conclusive proof'. In the instant case, the land belonging to the appellants was acquired by the Government of Punjab on the grounds of 'public purposes', after a notification in the Official Gazette. The petitioners contended that the said action violate their fundamental rights under article 19 to possess said land carry on their trade, etc. And, the Governmental declaration is 'conclusive evidence' only of a need and nothing more, and is not a 'conclusive proof'. The contention of the State Government was that its opinion about 'public purposes' was a 'conclusive proof' and Court cannot go behind the question. The question, is when a fact is only 'conclusive evidence' as to existence of another fact, other evidence as to the existence of other fact is shut out or not.
The Supreme Court observed: The object of adducing evidence is to prove a fact. Since an evidence means and includes all statements which the Court permits, when the law says that a particular kind of evidence would be conclusive as to existence of a particular fact, it implies that fact can be proved either by that or some other evidence which the Court permits. Where such other evidence is adduced, the Court could consider whether upon that evidence, the fact exists or not.
On the other hand, when evidence which is made conclusive is adduced, the Court has no option but to hold that fact exists. Otherwise, it would be meaningless to call a particular evidence as 'conclusive'. A 'conclusive evidence' shuts out any other evidence which would detract from the conclusiveness of that evidence.
The concept of 'conclusive proof' is defined under section 4: 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.
In substance, therefore, there is no difference between 'conclusive evidence' and 'conclusive proof'. In each, the effect is same, i.e., making a fact non-justiciable (irrebuttable). The aim of both being to give finality to the establishment of existence of a fact from the proof of another.
In the present case, thus, the opinion or declaration of State Government is conclusive proof or conclusive evidence, and any further judicial probe is barred. The petitioner cannot lead to disprove the irrebuttable presumption.
In Goutam Kundu v. State of West Bengal, MANU/SC/0345/1993 : AIR 1993 SC 2295: 1993 Cr LJ 3233: 1993 AIR SCW 2325: 1993 (2) Crimes 481: JT 1993 (3) SC 443: (1993) 3 SCC 418: 1993 (3) SCJ 206: (1993) 3 SCR 917: 1993 SCC (Cri) 928; the wife conceived a child and later on she filed a petition under section 125, Cr. P.C. for maintenance.
By an order dated 14-8-95 CJM, Alipur, which was passed ex parte, awarded a sum of Rs. 300 per mensum to the wife and Rs. 200 to the child. Against this order, the petitioner moved an application to the High Court.
In that proceeding the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds: (i) there were other methods in the Evidence Act, to disprove the paternity; (ii) moreover it is settled law that medical test cannot be conclusive of paternity.
Aggrieved by this order, a revision was preferred before the High Court. Dismissing the revision it was held that section 112 of the Evidence Act, says where during the continuance of valid marriage if a child is born that is a conclusive proof about the legitimacy. This section would constitute a stumbling block in the way of the petitioner getting his paternity disproved by blood group test.
The English law permitted blood test for determining the paternity of legitimacy could not be applied in view of section 112 of the Evidence Act. Therefore, it must be concluded that section 112 read with section 4 of the said Act debars evidence except in cases of non-access for disproving the presumption of legitimacy and paternity.
The Supreme Court observed that:
The conclusion of the whole matter is that a Judge of the High Court has power to order a blood test whenever it is in the best interest of the child. The Judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which Judges exercise their discretion. The object of the Court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.
Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against her will and no adverse inference can be drawn against her for this refusal.
The Supreme Court held that:
"We find no difficulty in upholding the impugned order of the High Court, confirming the order of Addl. Chief Judicial Magistrate, Alipore in rejecting the application for blood test. We find the purpose of the application is nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test. Accordingly, the Special Leave Petition will stand dismissed.
In Limbaji v. State of Maharashtra, MANU/SC/0792/2001 : AIR 2002 SC 491: 2002 Cr LJ 590: 2002 AIR SCW 22: 2002 (1) Crimes 63: JT 2001 (2) SC (Supp) 79: (2001) 10 SCC 340: 2001 (5) SCJ 229: 2002 (1) SLT 1: 2002 (2) SRJ 235: (2001) 8 SCALE 522: 2002 SCC (Cri) 1044: 2001 (8) Supreme 722: 2002 (1) UJ (SC) 307; the three appellants faced trial in the Court of the Sessions Judge, Osmanabad, for the offences punishable under section 302 read with section 34 and section 392 read with section 34, IPC. They were charged of committing the murder of the deceased and robbing him of golden earrings and silver 'lingakar' worn by him in the early hours of 30th May, 1984.
The case rests on circumstantial evidence of recovery of ornaments worn by the deceased, pursuant to the information furnished by the accused to
the police. The High Court pressed into service the presumption under
section 114(a) of the Evidence Act, in support of its conclusion. It is the correctness of that view that falls for the Supreme Court in this appeal.
The Supreme Court observed that:
Among the illustrations appended to section 114 of the Evidence Act, the very first one is what concerns us in the present case "the Court may presume - that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession".
Taylor in his treatise on the Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in section 114(a):
"The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand."
The Supreme Court held that, it is not the prosecution case, that the appellant carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decision to hit deceased in order to silence or immobilize that victim. If the idea was to murder him and take away the ornaments from his person there was really no need to forcibly snatch the ear rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased, True common intention could spring up any moment and all the three accused might have decided to kill him instantaneously for whatever reason it be. While that possibility cannot be ruled out the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picked up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus, two possibility confront us. When there is reasonable scope for two possibilities and the Court is not in position to know the actual details of the occurrence it is not safe to extend the presumption under section 114 so as to find that appellant guilty of the offence of murder with the aid of section 34, IPC. While drawing basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautions approach and have an assurance from all angles that the accused not merely committed theft.
Thus, the Supreme Court set aside the conviction of the accused under section 302, IPC. The Supreme Court found the accused guilty of the offence punishable under section 394 read with section 34, IPC and accordingly convicted the accused under section 394 and sentence them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500 each and in default to undergo further imprisonment for a period of three months. The appeals are thus, partly allowed.
In Haroom Haji Abdulla v. State of Maharashtra, MANU/SC/0060/1967 : AIR 1968 SC 832: 1968 Mad LJ (Cri) 591: (1968) 1 SCWR 243: 1968 SCD 391: 1968 Cr LJ 1017: 1968 (2) SCJ 534: (1968) 2 SCR 641: 1970 MPLJ 537: 1970 Mah LJ 604; the appellant Haroon is the sole appellant from a batch of 18 persons who were tried jointly before the Chief Presidency Magistrate, Esplanade Court, Bombay for offences under section 120B of the Indian Penal Code read with section 167(81) of the Sea Customs Act and certain offences under the Foreign Exchange Regulations Act, 1947.
Of the remaining accused who were convicted, Haroon alone is before us. His appeal to the High Court of Bombay was dismissed but he obtained special leave under Article 136 of the Constitution and brought this appeal.
The Supreme Court observed that:
No doubt both Bengali and Noor Mohammad retracted their statements alleging duress and torture. But these allegations came months later and it is impossible to heed them. The statements were, therefore, relevant. Both Bengali and Noor Mohammad were jointly tried with Haroon right to the end and all that remained to be done was to pronounce judgment. Although Bengali was convicted by the judgment, the case was held abated against him after his death.
The Supreme Court further held:
The law as to accomplice evidence is well settled. The Evidence Act, in section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the Court trying an accused may legally convict him on the single evidence, of an accomplice. To this there is a rider in illustration (b) to section 114 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. The argument here is that the cautionary rule applies, whether there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice. Therefore, unless there is some evidence besides those implicating the accused in some material respect, conviction cannot stand. Reliance is placed in this connection upon the observations of the Judicial Committee in Bhuboni Sahu v. Emperor, a case in which a conviction was founded upon the evidence of an accomplice supported only by the confession of a co-accused. The Judicial Committee acquitting the accused observed:
The High Court has very searchingly examined the evidence of Kashinath and applied to it the checks which must always be applied to accomplice evidence before it is accepted. There is corroboration to the evidence of Kashinath in respect of Haroon from the confession of Bengali given independently and in circumstances which exclude any collusion or malpractice. Regard being had to the provision of section 133 of the Evidence Act, we do not think that we should interfere in this appeal by special leave, particularly as we hold the same opinion about the veracity of Kashinath.
Thus, the Supreme Court dismissed the appeal.
In M.O. Shamsuddin v. State of Kerala, MANU/SC/0677/1995 : (1995) 3 SCC 351: 1995 AIR SCW 2717; the two appellants on the file of the Enquiry Commissioner and Special Judge, Thrissor and they have been found guilty under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and under section 161 read with section 120B, IPC. C.K. Karunakaran was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000 and in default to undergo simple imprisonment for a further period of two months for the offence under the Prevention of Corruption Act and to rigorous imprisonment for one year for the offence under section 161 read with section 120B, IPC.
M.O. Shamsuddin was sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 500 and in default to undergo simple imprisonment for a further period of one month for the offence under the Prevention of Corruption Act and to rigorous imprisonment for one year for the offence under section 161 read with section 120B, IPC.
The Supreme Court observed that:
From the resume of various decisions the following principles are deducible. Section 133 of the Evidence Act, lays down that an accomplice is a competent witness against an accused person. The conviction based on such evidence is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, there is a rider in illustration (b) to section 114 of the Act, which provides that the Court may presume that the accomplice is unworthy of credit unless he is corroborated in material particulars. This presumption is in the nature of a precautionary provision incorporating the rule of prudence which is ingrained in the appreciation of accomplice's evidence. Therefore, the Courts should be guarded before accepting the accomplice's evidence and look for corroborating evidence. The discretion of the Court upon which the rule of corroboration rests, must be exercised in a sound and reasonable manner. Normally the Courts may not, act on an uncorroborated testimony of an accomplice but whether in a particular case it has to be accepted without corroboration or not would depend on an overall consideration of the accomplice's evidence and the facts and circumstances. However, if on being so satisfied the Court considers that the sole testimony of the accomplice is safe to be acted upon, the conviction can be based thereon. Even if corroboration as a matter of prudence is needed it is not for curing any defect in the testimony of the accomplice or to give validity to it but it is only in the nature of supporting evidence making the other evidence more probable to enable the Court to satisfy itself to act upon it.
The Court held that, whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to given evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe-giver has to be scrutinized very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon it or not in those given circumstances.
Thus, the Supreme Court dismissed the appeal.
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