Introduction
Chapter VII, Sec-101 to Sec-1174 of Indian Evidence Act 1872 deals with the provisions of “burden of Proof”. The word ‘burden of proof’ has not been defined in Evidence Act. The question is which out of two parties has to prove a fact. The answer to this question decides the question as to burden of proof. It is a fundamental principle of criminal jurisprudence that guilt of accused is to be proved by the prosecution and an accused should be presumed to be innocent.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
For Example: A alleges that B has murdered C, then the burden of proof lies on A to prove his allegations. Generally, in civil cases, the burden of proof lies on plaintiff and in criminal cases it lies on prosecution.
The expression burden of proof has two distinct meanings:
- The legal burden i.e., the burden of establishing case:
It is the burden of proof of a matter of law and pleading, the burden and also referred as establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is the burden of party to prove its case completely to the satisfaction of the Court. As a rule, the legal burden lies on the party who has set in motion the legal machinery by filing a case. This rule is embodied in Section 101.
- The evidential burden, i.e., the burden of leading evidence.
It is the burden of proof as matter of adducing evidence. The burden of proof in this sense is always unstable, and may shift constantly throughout the trial. This aspect of the burden of proof is contained in Section 102. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.
Narain v. Gopal, AIR 1960 SC 100 case, the Court observed that the expression burden of proof really means two different things. It means
- Sometimes that the party required to prove an allegation before judgment is given in his favour and
- It also means that on a contested issue one of the two contending parties has to introduce evidence.
In criminal cases burden of establishing the charge against the accused lies on the prosecution. Here it is not the accused who has to prove his innocence because he is presumed to be innocent till his guilt is proved. That is why prosecution has to prove his case and section 101 comes into operation. In civil cases burden of proof is on the party who asserts. But the standard of proof required in civil cases is not that the plaintiff must prove a fact beyond any shadow of doubt.
The expression “Burden of Proof” means the burden of adducing evidence. This indicates the obligation to lead evidence. It signifies an obligation imposed on a party to prove a fact.
Burden of Proof in Civil & Criminal cases
- In criminal cases, the burden of proof is on the prosecution. In civil cases it is on both the parties.
- In criminal cases, the guilt must be proved beyond reasonable doubt. In civil cases proof is enough.
- In civil cases, the matter is decided by preponderance of probabilities. But in criminal cases proof beyond reasonable doubt is required whenever the burden is on prosecution/ but burden on accused
Section 101 Indian Evidence Act:
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.
In short the Burden of proof is on the party who desires the court to give judgement or decide a legal right or liability in his favour.
Illustrations:
- ‘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.
- ‘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.
Thus, burden of proof means in the sense of proving the case and for this purpose, duty to prove all facts necessary for taking the judgement of court i.e., the sense of proving a case and provide whoever wishes the court to give judgement in his favour for any legal right or liability dependent on existence of some facts, law lies onus on him to prove that those facts exist.
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. Thus, the burden of proof in the sense of proving case as contemplated in Section 101 is constant one and never shifts.
Case Laws:
Ramjee Rai v. State of Bihar, (2006) 13 SCC 229
The Court said that the word ‘burden’ in the phrase burden of proof should not be taken as weight in physical sense because the Courts do not go by quantum or volume of evidence. The Courts make a qualitative and not quantitative appreciation of evidence.
State of Rajasthan v. Bhaananda Sharma, 1972 Cri.L.J
The Court held that it is well established principle that in criminal case the accused must be presumed to be innocent until the prosecution establishes the charge against him beyond reasonable doubt. There is no burden on the accused to prove his innocence.
Jarnail Singh v. State of Punjab, AIR 1996 SC 755
The Supreme Court observed that in a criminal case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon prosecution, and therefore if it fails to adduce the satisfactory evidence to discharge that burden. It cannot fall back upon evidence adduced by the accused person in support of their defence to rest its case solely thereupon.
Subhra Mukherjee v. Bharat Coking Coal Ltd., AIR 2000 SC 1203
It was held that where issue was whether the document in question was genuine, sham or bogus. The Court held that the party who alleged it to be bogus had to prove nothing till the party relying upon document established its genuineness. This burden always keeps on shifting throughout the trial. Thus, though the form of issue may cast the burden on the defendant, it could not affect the burden of proof on the pleadings which is on the plaintiff.
State of H. P. v Shree Kant Shekari AIR 2004 SC 4404:
The burden of proving consent in a rape case is on the accused. It is not for the victim to show that there was no consent on her part. It is for the accused to show that she had consented.
Neelkantan v Mallika Begam AIR 2002 SC 827:
The occupant/ tenant 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 would be available. The burden to prove that the property was situated in Slum Area would be on the tenant.
The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. The rule of convenience has been adopted in practice, not because it is impossible to prove negative, but because the affirmative is capable of proving easily. And it is also reasonable and just that the suitor who relies upon the existence of a fact, should be call upon to prove his own case.
Exception to the section
The general rule that a party who desires to move the Court must prove all facts necessary for that purpose (ss. 101-105) is subject to two exceptions: –
- He will not be required to prove such facts as are especially within the knowledge of the other party (s. 106); and
- He will not be required to prove so much of his allegations in respect of which there is any presumption of law (ss. 107-113), or in spe cases of fact (s. 114) in his favour.
Difference Between Burden of Proof and Onus of Proof:
Burden of Proof | Onus of Proof |
It is the burden of party to prove its case completely to the satisfaction of the Court. | It is the burden of proof as matter of adducing evidence. |
It relates to entire case | It relates to specific fact that a party alleges. |
It lies upon the person who has to prove a fact | It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. |
It remains constant which never shifts | onus of proof shifts from one to another. |
This concept is embodied in Section 101 of IEA | This concept is embodied in Section 102 of IE |
Addagada Ragavamma v. Addagada Chenchaamma, AIR 1964 SC 136:
The Supreme Court held that there is an essential distinction between the burden of proof and onus of proof, the first one is the burden to prove the main contention of the party requesting the action of the court, while the second one is the burden to produce actual evidence.
Section 102 Indian Evidence Act: On Whom Burden of Proof Lies
In a suit or proceeding it lies on that person who would fail if no evidence at all were given on either side.
The burden of adducing evidence is on the person who would fail if no evidence is offered from either side from that point of time.
Illustrations:
- 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.
- 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.
According to this Section, burden of proof lies on the party whose case would fail if no evidence were given on either side. Actually, section tries to locate on whom burden of proof lies. Section 101 of Act provide regarding Burden of proof in the sense of proving the case i.e., onus probandi and Section 102 provide burden of proof in the sense of adducing evidence.
The burden of adducing evidence keeps on shifting from one to another party. It never shifts. It remains on plaintiff in civil proceeding and on prosecution in criminal proceeding.
Case Laws:
- Kusuma Kumari v. Gandhi Surya Bhagwan, AIR 1982 AP 63:
The Court held that in cases of insanity or unsoundness of mind, burden of proving that fact lies on the person who wants to rely on it. The law presumes sanity.
C.P. Sreekumar M.S. (Ortho) v S. Ramanujam, 1 May, 2009
The Apex Court held that onus of proving medical negligence lies on the complainant. Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged to provide facta probanda as well as facta probantia.
Section 103 Indian Evidence Act : Burden of Proof as to Particular Fact (Sec. 103)
“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 y any law that the proof of that fact shall lie on any particular person.”
Simply the principle under this section is that whenever a party wishes the court to believe and to act upon the existence of a fact, the burden lies upon him to prove that fact
Illustration: (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.
Similarly, a person who signed a loan document admitted the loan and if he says that he signed a blank paper, the burden would lie upon him to prove that fact.
Section 104 of INDIAN EVIDENCE ACT : 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.”
Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible. The burden of proving the fact is on the person who wants to give such evidence.
The illustration explains the meaning of the section. A person seeking to recover possession has to prove that he was dispossessed within 12 years.14
Doctrine of Res Ipsa Loquitur -It literally means Things speak for itself. Prima facie it appears to be a simple and easy maxim to understand and apply. However, it is not as simple as it appears to be.
concept of res ipsa loquitur was came into existence with the case of Byrne v Boadle 1863.The facts of the cases were, that a man was walking on the sidewalk outside a flour warehouse and abruptly a barrel of flour fell upon him. His head got hit badly. Two witnesses saw the accident but none of them knew how the barrel fell from the window.
Thus it was held that in such cases no direct evidence is required as to circumstances clearly showing the breach of duty of the defendant towards the plaintiff. It was presumed that barrels do not usually fall out from windows unless there is a breach of duty of care.
Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant. Generally, in a case it is the plaintiff who has to provide evidence to prove the defendant’s negligence.
ELEMENTS OF RES IPSA LOQUITUR :
There are three must-haves of this maxim for the plaintiff to fulfil before the jury infers the defendant’s negligence :
- The event doesn’t ordinarily occur unless someone has acted negligently.
- The evidence rules out the prospect that the actions and contributions of the plaintiff or third party caused an injury.
- The defendant was in exclusive control of the state of affairs.
Thus if these are fulfilled the burden of proof shifts towards the defendant.
The illustration explains the meaning of the doctrine. Where the vehicle suddenly went off the road, overturned and killed the victim, doctrine of res ipsa loquitur was attracted and onus was shifted from the claimant to the driver to prove his non-negligence or vigilance.
Case Laws
A.H. Khodwa v State Of Maharashtra:
The patient had gone under sterilization operation after childbirth. A mop was left inside the abdomen of the patient which led to disease. The patient died after a few days. It was held that duty of care was not taken while performing the surgery, nor did the plaintiff’s actions caused the death and the State running the hospital was in control. Hence making the State liable.
Nagamani v Corporation Of Madras, an iron pot on a pavement belonging to Madras Corporation fell for an unknown reason. This caused head injury to the person and thereby death. Res ipsa loquitur was applied but the Corporation rebutted that the steel column was erected only 30 years ago whereas the normal life is 50 years. In addition, the post was securely fixed and occasional inspection is held, the last one being one month ago which showed no signs of such collapsing. Thus even after a reasonable care accident took place, the defendant was not held liable.
REBUTTAL OF RES IPSA LOQUITUR:
As the rule of res ipsa loquitur shifts, the burden of proof on the defendant i.e. defendant disapproves. If the defendant can prove that :
- That with reasonable care also the injury could not be prevented.
- That it was the plaintiff’s negligence contributing to injury.
- That he did not owe a duty of care under law towards the plaintiff.
Then he can escape liability.
This section should be read with clause 2 of section 136 with illustration.
In simple sense If the existence of a fact is dependent on the existence of another fact, that another fact must also be proved by the person who wishes to give such evidence.
Illustrations:
- A wish to prove a dying declaration by B. A must prove B’s death.
- A wish to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
Section 105 of INDIAN EVIDENCE ACT: Burden of Proving Exception in Criminal Cases
According to Sec. 105, the burden of proof is upon the accused of showing existence, if any, of circumstances which bring the offence charged within any of the special as well as any of the general exceptions or proviso contained in I.P.C. or any law defining the offence. Further, the court shall presume the absence of such circumstances.
When an accused claims that his case comes within an exception like insanity, intoxication, private defence etc., the burden of proving such exception is on the accused.
Illustrations
- 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.
- 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.
- 325, IPC provides that whoever, except in the case provided for by Sec. 335, voluntarily causes grievous hurt, shall be punished. A is charged under Sec. 325. The burden of proving the circumstances bringing the case under Sec. 335 lies on A.
The fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts, and it always rests on the prosecution. Sec. 105 is an important qualification of this general rule. This section is an application, perhaps an extension of the principle laid down in Sec. 103.
Presumption of Innocence and Sec. 105
Though the accused is presumed to be innocent, but Sec. 105 raises a presumption against the accused and also throws a burden on him to rebut the said presumption. According to Sec. 105, 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 I.P.C., is upon him and the court shall presume the absence of such circumstances.
Case Laws :
Dayabhai v State of Gujarat (AIR 1964 SC 1563):
The Court observed that there is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused under Sec. 105.
Rabindra Kumar Dey v State of Orissa (1976) 4 SCC 233, it observed: “Sec. 105 does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution; it is sufficient if he proves his case by the ‘standard of ‘preponderance of probabilities’ envisaged by Sec. 5 as result of which he succeeds not because he proves his case to the guilt but because probability of the version given by him throws doubt on the prosecution case and, thus, the prosecution cannot be said to have established the charge beyond reasonable doubt.”
Sanjay Dutt y State (1994) 5 SCC 410:
In Prevention of Corruption Act, 1988, the burden is on the accused to account for his possessions. Where the presumption of innocence is reversed by a statutory provision so that the burden is on the accused to show (e.g. that he was in innocent possession of an assault rifle), held that such burden should not be as heavy as that of the prosecution but even so should be of greater probability.
A.P. Pollution Control Board v Prof. M. V. Nayudu (1999) 2 SCC 718
In environmental cases, there is reversal of burden of proof based on precautionary principle.
Section 106 INDIAN EVIDENCE ACT:
Where a “Fact” to be proved is especially or substantially within the knowledge of the opposite party and in the backdrop of the circumstances, the opposite party would be the only person who would be in the position to throw light on the said factual situation, the burden of proof of that fact may shift upon that person.
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.
If a person is found in possession of a stolen property immediately after the theft and he claims that there was no intention to receive stolen property, he must prove that fact, for that fact is especially within his knowledge. Similarly, in the case of plea of alibi, since only the person raising the plea knows that where he was at the time, burden lies on him to prove that fact. This section also come into play in the cases of custodial or dowry death, and, negligence of carriers of goods. The principle stated in the section is an application of the principle of res ipsa loquitor.
So , Section 106 deals with the burden of proving a fact within the special knowledge of a particular person. It says that when any fact is specially within the knowledge of a person then the burden of proving that fact is upon him.
Case Laws:
Sucha Singh v State of Punjab (2001) 4 SCC 375:
In this case it was held that Sec. 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt; but the section would apply to cases where the prosecution has succeeded in proving facts from which the reasonable inference can be drawn regarding the existence of certain other facts unless the accused by virtue of a special knowledge regarding such facts offered an explanation which might drive the court to draw a different inference.
State of Puniab v Karnail singh (2003) 11 SCC 271
If facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt. It would be relevant while considering the totality of the circumstantial evidence. It is submitted that under the Indian law, Sec. 106 sho ild be more liberally used against the accused.
Section 107: Burden of Proving Death
“When the question is whether a person 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.”
There is a general presumption of continuity of things. Sec. 107 provides that when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact.
Section 108: Burden of Proving that Person is alive who is Unheard of for 7 Years
Sec. 108, on the other hand, provides that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had ‘been alive, the burden of proving that he is living is shifted to the person who affirms it. Sec. 108 is an exception to the rule contained in Sec. 107.
According to Sec. 108, if a person is not heard of for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus, seven years’ absence creates rebuttable presumption of death.
Case Laws :
Muhammad Sharif v Bande Ali (ILR (1911) 34 All 36):
One M mortgaged certain property to the defendant in 1890. Thereafter he disappeared and nothing was heard of him again. His heirs filed a suit for the redemption of mortgage 18 years after M’s absence. They contended that as M disappeared some 18 years ago, he must be presumed to have been dead for the last 11 years. It was held that presumption in Sec. 108 does not go further than the mere fact of death. There is no presumption that he died in the first 7 years or in the last 7 years.
LIC of India v Anuradha (2004) 10 SCC 131:
The presumption raised under Sec. 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to date or time of death.
There is no presumption as to the facts and circumstances under which the person may have died. Further, the presumption would arise only on lapse of seven years and would not apply on expiry of six years and 364 days or any time short of seven years. The presumption can be raised only when the question is raised in court, tribunal or before an authority who is called upon to decide whether a person is alive or dead, not otherwise.
Section 109: Burden of Proof as to Relationship of Certain Kind
According to Sec. 109, where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so. Thus, there is a presumption against change of status quo, namely that any existing state of things will continue as it is.
Section 110: Burden of Proof as to Ownership
When a person is in possession of any thing as owner, the burden of proving that he is not owner is on the person who affirms that he is not the owner. This section gives effect to the principle that possession is the prima facie evidence of a complete title. The possession contemplated is the actual physical possession. Further, Sec. 110 is not limited to immoveable property and applies to moveable property as well.
Case Laws:
Chief Conservator of Forest v Collector (2003) 3 SCC 472:
In this case the plaintiff claimed to be pattedar of the land in question proving long and peaceful enjoyment of the land. It was held that though there was no proof of conferment of patta and acquisition of title, a presumption of ownership arose in favour of the plaintiff and in absence of any evidence on behalf of the Government, rebutting the presumption, claim of the plaintiff must be upheld.
Section 111 : Proof of Good Faith
When a person stands towards another in a position of active confidence, the burden of proving the good faith of any transaction between them lies on the person in active confidence.
Illustrations:
- The good faith of a sale by a client to attorney is in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
- The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
Relations of trust and confidence (i.e. fiduciary relation) include those of parent and child, lawyer and client, spiritual guru and his follower, principal and agent, partner and firm, doctor and patient, persons in authority and those over whom he exercises authority. In all such cases, the law imposes the duty of good faith upon the person occupying the position of trust and confidence, and he will have to prove that he acted in good faith before he can enforce the transaction against the other party. A contract with a pardanashin woman attracts Sec. 111.
The principle of equity is ingrained in Sec. 111.
In Krishna Mohan Kul v Pratima Maity (2004) 9 SCC 468: it was held that onus of proof to prove due execution of document in accordance with law is always on donee/beneficiary, irrespective of the fact whether such party is defendant or plaintiff. Considerations involved in judging validity of transactions between persons standing in active confidential or fiduciary relationships are whether donor had competent and independent advice, his age, capacity and nature of benefit are very material.
Section 111 A: Presumption as to Offences in Disturbed Areas
Under this section (introduced in 1984), if a person is accused of having committed any offence under Secs. 121, 121-A, 122 or 123 of the Indian Penal Code, or of a criminal conspiracy or attempt to commit, or abetment under Secs. 122-123, in any declared ‘disturbed area’, etc. and it is shown that such person had been in that area when firearms or explosives were used to attack or resist armed forces, etc., it shall be presumed, unless the contrary is shown, that such a person had committed the offence.
Co-relation between Section 111 Evidence Act and Section 16(3) of Indian Contract Act:
The main points of distinction are as under:
- Section 16(3) of Indian Contract Act applies only to contract but S. 111 of Evidence Act applies to every transaction whether contract or not.
- The expression used in S. 16(3) of Indian Contract Act is position to dominate the will of another’ and Us 111 it is one who stands to the other in the position of active confidence’.
- There is a fine distinction between the two expressions. Section 111 applies only where a person stands to another as if it were in “Loco parentis” i.e. one who is in position to protect the interest of another, who is for that reason bound to protect the interest of the latter. For instance, minor-guardian, parent child; on the other hand S. 16(3) applies to all the cases where a person is in position to dominate the will of another whether he stands in loco parentis or not.
- Under section 111 there is no need to show that the transaction is unconscionable whereas U/s 16(3) it is necessary to show this condition.
Meaning of "Conclusive Proof":
It refers to irrebuttable presumption of law. The law extends an artificial probative value to certain facts. These cannot be rebutted except to the extent given in the provision itself. Section 4 states that 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 the same. There is practically no difference between the phrase “conclusive evidence” and “conclusive proof” in as much as both are being instances of irrebuttable nature.
There are three instances of conclusive proof in the evidence act.
Which are –
- Section 41 : Relevancy of Judgements
- Section 112 : Legitimacy of Child whose birth during marriage
- Section 113 : Proof of Cession of Territory
Section 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.
Comments
Presumption of Legitimacy [Section 112]
The following conditions are required to attract the presumption under section 112:
- There should be a valid marriage;
- The child should be born:
- during the continuance of a valid marriage; or
- 280 days after its dissolution, either by death or divorce, provided the mother remains unmarried.
The following important points, regarding Sec. 112, may also be noted:-
- This section 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.
- 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 the father of child.
- 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.
Case Laws
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 the 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.
- 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 is dissolved by the husband’s death or otherwise.
- Under Sec. 112, the only way to rebut the presumption is the proof of “non-access” between the parties to marriage.
(Kanti Devi v Poshi Ram AIR 2001 SC 2226)
The phrase “non-access” implies non-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 he clear and satisfactory.
Chilukuri Venkateswarlu v Chilukuri Venkatanarayana (AIR 1954 SC 176)
The husband tried to show that he had provided separate residence to his second wife and thereafter never visited her. The wife alleged visits by the husband and the husband being not able to prove his allegation, a child born by the second wife was presumed to be a legitimate child.
Even the illness of the husband may not be sufficient to displace the presumption of access, unless the illness is totally disabling. The word “access” means effective access as is shown by the use of the words ‘when he could have been begotten’ and physical incapacity to procreate amounts to non-access within the meaning of this section.
Chandramathi v Fashetti Balan (AIR 1982 Ker. 68):
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.
- Biomedical tests – It has been held that only way to rebut presumption under Sec. 112 is by proving non-access, and biomedical evidences like blood test, DNA test, etc. cannot be allowed.
Goutam Kundu v State of W.B. AIR 1993 SC 2295:
The courts do not normally order anybody to submit himself for blood test. No one can be compelled to give sample of blood for analysis. Where the presumed father of the child prayed for blood test of the child for the purpose of denying legitimacy (i.e. he was not the father of the child) and liability to maintenance, his prayer was not accepted. It was held that the only way to rebut presumption under Sec. 112 is by proving non-access, and biomedical evidences like blood test, DNA test, etc. cannot be allowed.
The court pointed out that Sec. 112 is based on the maxim “Pater est quem nuptiae demonstrant” (he is the father whom the marriage indicates). It is an irrebuttable presumption of law that a child born during lawful wedlock is legitimate and that there was access between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities…. There must be a strong prima facie case in that the husband must establish non-access – to dispel the presumption arising under this section. Access and Non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation.
Har Govind Son v Ramdulari (AIR 1986 M.P. 57)
It was held: “The blood grouping test is a perfect test to determine questions of disputed paternity of a child and can be relied upon by courts as circumstantial evidence. But no person can be compelled to give a sample of blood for blood grouping test against his will and no adverse inference can be drawn against him for this refusal.”
Smt. Dukhtar lahan v Mohammed Faroog (AIR 1987 SC 1049) :
It was observed that the courts in general incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant. a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father.
In the present case, the court concluded:
- The courts in India cannot order blood test as a matter of course.
- Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
- There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Sec. 112.
- The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
- No one can be compelled to give sample of blood for analysis, the reason being that this test is a constraint on one’s personal liberty.
Section 113:Proof of Cession of Territory
This is third instance of conclusive proof; the other two being in Ss. 41 and 112 of the Evidence Act. It makes one fact conclusive proof of the other. It stipulates that a notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, c. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification. However, this section has now become obsolete.
Maganbhai Ishwarbhai Patel vs. Union of India, AIR 1969 SC 783:
The Apex Court observed that in British India advantage was taken of Section 113 of the Evidence Act in cases of cessions. to Native States, Prince or Ruler. That section is now obsolete and has been omitted in Burma and Ceylon but is still borne on our statute, although no longer required.
Section 113A : Presumption as to Abetment of Suicide by a Married Woman
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband. Presumption arises if following two conditions satisfied:
- The suicide was committed within a period of 7 years from the date of her marriage.
- Her husband, or his relatives, has subjected her to ‘cruelty’ (as the term is defined in Sec. 498-A, IPC).
Case Laws :
Suresh v State of Maharashtra, 1992 CrIJ 2455:
Such a presumption must, however, be drawn by the court after having regard to all the other circumstances of the case. Once these things are proved, abetment of suicide is presumed to exist. It will then be for the husband or his relatives to prove that the suicide in question was the woman’s personal choice.
Hans Raj v State of Haryana (2004) 12 SCC 257:
It was held that presumption under this section is only in case of suicide. If it is not a case of suicide, but of accidental death, the presumption of abetment does not arise.
Arjun Kushwaha v State of M.P., 1999 CrLJ 2538:
Where the relations with the husband were strained because of dowry demands; the wife poured kerosene on herself and the husband went on with his provocative language, it was held that this amounted to instigation of suicide.
Section 113B:Presumption as to Dowry Death
Under Sec. 113-B, when the question is whether a person has committed the ‘dowry death’ (as the term is defined in Sec. 304-B, IPC) of a woman, and it is shown that, soon before her death, she had been subjected by that person to cruelty or harassment in connection with any demand for dowry, the court shall presume that such a person had caused the dowry death. The burden is on the accused to rebut this presumption’.
Definition of Dowry Death under section 304 B Indian Penal Code ,1860:
- The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
- such death should have occurred within 7 years of her marriage;
- the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
- such cruelty or harassment should be for or in connection with the demand of dowry; and
- to such cruelty or harassment, the deceased should have been subjected to soon before her death.
What is Dowry: THE DOWRY PROHIBITION ACT, 1961, (Act No. 28 of 1961)
In this act, `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly, by one party to a marriage to the other party to the marriage; or
by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Case Laws:
State of Karnataka V M. V. Manjunathagorda (2003) 2 SCC 188:
Presumption as to dowry death begins to operate if prosecution is able to establish circumstances set out in Sec. 304-B, IPC hence In a dowry death case, it is a condition precedent to the raising of presumption that the deceased married woman was subjected to cruelty or harassment for and in connection with the demand for dowry soon before her death. The prosecution is required to give evidence of these circumstances so that the court draws a presumption of dowry death.
Hem Chand v State of Haryana AIR 1995 SC 120:
In this death was by strangulation and evidence was available to show that dowry was being demanded and the accused husband was also subjecting his deceased wife to cruelty, it was held that the presumption under the section applied with full force making the accused liable to be convicted under Sec. 304-B, IPC.
Amarjit Singh v State of Punjab, 1989 CrLJ (NOC) 13 Panjab & Haryana :
Where the prosecution was able to prove that the deceased woman was last seen alive in the company of the accused, she being at the moment in his special care and custody, that there was a strong motive for the crime and that the death in question was unnatural and homicidal, it was held that by virtue of Sec. 106 of the Evidence Act the burden of showing the circumstances of the death was on the accused as those circumstances must be specially known to him only.
Alamgir v State of Assam (2002) 10 SCC 277:
Presumption under Sec. 113-B does not stand automatically rebutted merely because the accused had been acquitted under Sec. 302, IPC.
Section 114: Presumption of 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”.
Sec. 114 is based on the maxim that ‘all are presumed to have been done correctly and regularly’. Sec. 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.
Case Laws :
- Narsingha Rao v State of Andhra Pradesh (AIR 2001 SC 318):
The Apex Court observed: Section said 114 of the Evidence Act gives absolute discretion to the court to presume the existence of certain facts in the manner specified therein. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another the court is only applying a process of intelligent reasoning, what a prudent man would do under similar circumstances? Presumption is not the final conclusion to be drawn from other facts. But it could be final if it remains undisturbed. In that event the court can treat the presumption as equivalent to proof. But it would be unsafe to use one presumption to draw another discretionary presumption.
State of Karnataka v David Rozario (2002) 7 SCC 728:
It was held that presumptions of facts are assumptions resulting from one’s experience of the course of natural events of human conduct and human character, and all those which one is entitled to make use of or has to make use of in the ordinary course of life as well as the business of courts.
Praveen Kumar v State of Karnataka (2003) 12 SCC 199
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 (if he cannot account for possession specifically but is continually receiving such goods in the course of his business, the court shall have regard to such fact)
Limbaji vs. State Of Maharashtra (Air 2002 Sc 491):
Facts and Issue – In this case, the appellants were charged under Sections 302 and 34; 392 with 34, IPC for committing murder and robbery. They were charged of committing the murder of the deceased and robbing him of ornaments worn by him. The case rests on the circumstantial evidence of recovery of ornaments worn by the deceased, pursuant to the information furnished (confession) by the accused to the police. The High Court pressed into service the presumption under Sec. 114(a) of the Evidence Act in support of its conclusion. It is the correctness of that view that falls for consideration before the Supreme Court.
Observations and Decision – The Supreme Court observed that:
Among the illustrations appended to Sec. 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”
Section 114A: Presumption in Rape Cases
According to Sec. 114-A, where the question before the court (in a prosecution for rape under Sec. 376 (2), IPC and where sexual intercourse by the accused is proved) is whether an intercourse between a man and a woman was with or without consent and the woman states in the court that it was against her consent, the court shall presume that there was no consent. The burden of proving becomes shifted to the accused. If he is not able to prove that there was consent, he becomes guilty.
The presumption under Sec. 114-A arises when the accused who commits rape is a police officer, a public servant, an officer of Jail, Hospital, or he commits rape on a woman knowing that she is pregnant or when rape is a gang rape. This section has been added for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape.
Sec. 114-A was introduced because of the increasing number of acquittals of accused when the victim of rape is an adult woman. If she was really raped, 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.
The following three conditions must be satisfied before the presumption contained in S. 114-A can be raised:
- It should be proved that there was sexual intercourse.
- The question before the court should be whether such intercourse was with or without the consent of the woman.
- The woman must have stated, in her evidence before the court that she had not consented to the intercourse.
2013 Amendment
This section was amended vide the Criminal Law (Amendment) Act, 201374 on the basis of recommendations given by the Justice J.S. Verma Committee, constituted in the aftermath of December 2012 NIRBHAYA RAPE INCIDENT, were made in s. 376(2) of Indian Penal Code. By making necessary amendment in this section, the new classified offence under upto clause (n) of s. 376(2) has also been brought within the bracket of statutory presumption of non-consensual intercourse prescribed in this section.
Dev Kishan vs State of Rajasthan 2003 :
There was oral testimony of the victim that the three accused persons forcibly took her away to a forest and subjected her to sexual intercourse for the whole day and two nights. Medical examination, showed injuries and signs of forcible sexual intercourse. The Court presumed that there was no consent. The accused were punished under s. 376(2) (g) of IPC.
Fagnu Bhai v State of Orissa, 1992 Cr LJ 1808:
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 materialise because of intervening circumstances.
Sharrighan v State of M.P., 1993 Cr. LJ 120:
In this 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 Sec. 114-A could not be invoked.
Conclusion
The general rule with regard to burden of proving the fact is that, he who asserts must prove, subject to exceptions and presumptions that shift burden of proof. The rule is in accordance with the principle that the burden of proof is upon the party for substantially asserts the affirmative of the issue but not on the party for denies. The reason behind this rule is that who drags another to the court must bear the burden of proving the fact which he asserts. Further it is very difficult to establish a negative when compared to an affirmative the expression.
