1

BURDEN OF
PROOF

Submitted to-Dr. Sabina Salim

Submitted by-Raman Dhiman,
168/14, BCOMLLB
SEC-C, UILS P.U

.
 2

ACKNOWLDEGEMENT
The project has been compiled by Raman Dhiman, Roll
number 168/14 of 7th semester on the topic ‘burden of
proof.’ Apart from the efforts of myself, the success of
any project depends largely on the encouragement and
guidelines of many others. I take this opportunity to
express my gratitude to the people who have been
instrumental in the successful completion of this project. I
would like to show my greatest appreciation to Dr. Sabina
Salim, her guidance and support in completion of this
project. I can’t say thank you enough for her tremendous
support and help. I would like to thank my friends for
motivating me and appreciating my work. I would also
like to thank the library staff for providing relevant
materials.
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CONTENTS
INDEX………………………………………….PAGE NO.
1) BURDEN OF PROOF……………………………………………………………………....4

• Kinds of burden of proof………………………………………………………………5

2) PRINCIPLES OF BURDEN OF PROOF……………………………………………… ..5

3) Sec 101 Burden of proof...........................................................................................5

4) Sec 102 On whom burden of proof lies………………………………………………..7

5) Burden of Proof and Onus of Proof………………………………………………………...8

6) Sec 103 Burden of proof as to a particular fact.......................................................9

7) Sec 104 Burden of proving fact to be proved to make evidence admissible.........10

8) Sec 105 Burden of proving that case of accused comes within exceptions...........10

9) Sec 106 Burden of proving fact especially within knowledge……………………...12

10) Sec 107 Burden of proving death of person known to have been alive within thirty
years......................................................................................................................................15

11) Sec 108 Burden of proving that person is alive who has not been heard of for seven
years......................................................................................................................................15

12) Sec 109 Burden of proof as to relationship in the case of partners, landlord and
tenant, principal and agent..................................................................................................16

13) Sec 110 Burden of proof as to ownership...................................................................17

14) Sec 111 Proof of good faith in transactions where one party is in relation of active
confidence...............................................................................................................................18

15) Sec 111A Presumption as to certain offenses .............................................................19

16) Sec 112 Birth during marriage, conclusive proof of legitimacy................................20

17) Sec 113 Proof of cession of territory............................................................................21

18) Sec 113A Presumption as to abatement of suicide by a married woman .................22

19) Sec 113B Presumption as to dowry death ...................................................................23

20) Sec 114 Court may presume existence of certain facts..............................................25

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BURDEN OF PROOF
The normal law relating to the Burden of Proof and its onus is given under the
provisions of the Indian Evidence Act, 1872.

Under Indian law, until and unless an exception is created by law, the burden of
proof lies on the person making any claim or asserting any fact. Reference should
be made to the following provisions of the Indian Evidence Act, 1872 with some
illustrations to understand the proposition.

The expression burden of proof is explained in Section 101 of Indian Evidence Act
as, "When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person". The 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.

Chapter VII, Section 101 to 114 of the Indian Evidence Act deals with the
provisions of "burden of proof".

On every issue, there is an obligation on one party to convince the tribunal of the
truth of some propositions of fact which is an issue and which is vital to the case.

The responsibility to prove a thing is called burden of proof. When a person is

required to prove the existence or truthfulness of a fact, he is said to have the
burden of proving that fact. In a case, many facts are alleged and they need to be
proved before the court can base its judgment on such facts. The burden of proof
is the obligation on a party to establish such facts in issue or relevant facts in a
case to the required degree of certainty in order to prove its case.

Burden of proof 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. The Evidence Act lays down some principle of burden of proof of
general nature.
 5

The burden of proof is constant. Only the onus shifts. In other words, what is to
be proved is fixed, but who shall prove that is to be decided. The liabilities and
responsibilities to prove the fact is known as onus (burden) which shifts from the
shoulders of one party to the shoulders of another party. Burden of proof is
always constant because it has reference to ingredients and concepts.

 Kinds of burden of proof

There are two burdens of proof i.e. the “legal” burden and the
“evidential” burden.

The legal burden is defined as “the burden of proof or the probative burden
and the ultimate burden”. On the other hand the, evidential burden has been
defined as “the quantum of evidence” which would “establish a prima facie case”.
In every case there is a distinction between these two burdens. On a general
principle, both these burdens are cast upon the asserter of a proposition whereas
in some cases the incidence of these two types of burdens may not coincide. The
determination of where of where the burden falls would depend upon
substantive law as well as common sense.

PRINCIPLES OF BURDEN OF PROOF

Who has the burden of proof is given in the provisions in Chapter VI from sections 101 to
114A of the Indian Evidence Act.

General rules

Rule 1

Sec 101 Burden of proof

specifies the basic rule about who is supposed to prove a fact. It says that
whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those facts
exist.
 6

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.

Section 101 specifies the basic rule about who is supposed to prove a fact. Facts can be
put in two categories - those that positively affirm something and those that deny
something. For example, the statement, “A is the owner of this land” is an affirmative
statement, while “B is not the owner of this land” is a denial. The rule given in Section
101 means that the burden of proof lies on that person who asserts the affirmative of
an issue. Thus, the person who makes the statement that “A is the owner of the land”,
has the burden to prove it.

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 reason behind this rule is that who drags another into 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.

For example, A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed. A must prove that B has committed the crime.

Similarly, 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.

However, it is not very simple to categorize a fact as asserting the affirmative. For
example, in the case of Soward v. Legatt, 1 a landlord suing the tenant asserted that the
tenant did not repair the house. Here, he was asserting the negative. But the same
statement can also be said affirmatively as the tenant let the house dilapidate. In this
case, Lord Abinger observed that in ascertaining which party is asserting the affirmative

1
(1836) 7 C & P 613
 7

the court looks to the substance and not the language used. Looking at the substance of
this case, the plaintiff had to prove that the premises were not repaired.

In Jarnail Sen v. State of Punjab, 2 the Supreme Court held that in a criminal case, the
burden of proving of the guilt of the accused beyond all reasonable doubt always
lies upon prosecution, and therefore if it is fails to adduce the satisfactory evidence to
discharge the burden, it cannot fall back upon evidence adduced by the accused person
in support of their defence to rest its solely thereupon.

Rule 2

Sec 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 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.

This section tries to locate the party on whom the burden of proof lies. It lies upon the
party whose case would fail if no evidence were given on either side.

In Triro v. Dev raj, 3 it was held that when there was a delay in filing the suit, the
defendant had taken a plea of limitation period. The plaintiff was in a position to know
the cause of delay, so the burden of proving that the case was within prescribed limit
was on the plaintiff.

2
AIR 1996 SC 755
3
AIR 1993 J&K 14
 8

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a
matter of law and pleading, and the burden of proof as a matter of adducing evidence
also called as onus. There is a subtle distinction between burden of proof and onus of
proof, which was explained in the case of Ranchhodbhai v. Babubhai4. The burden of
proof is the burden to prove the main contention of party requesting the action of the
court, while the onus of proof is the burden to produce actual evidence. The burden of
proof is constant and is always upon the claimant, but the onus of proof shifts to the
other party as and when one party successfully produces evidence supporting its case.

For example, in a case where A is suing B for payment of his services, the burden of
proof as a matter of law is upon A to prove that he provided services for which B has not
paid. But if B claims that the services were not up to the mark, the onus of burden as to
adducing evidence shifts to B to prove the deficiency in service. Further, if upon
providing such evidence, A claims that the services were provided as negotiated in the
contract, the onus again shifts to A to prove that the services meet the quality as
specified in the contract.

The High Court in Abdulla Mohammed v. State5 explained the difference between
“burden” and “onus”. It was held that burden of proof lies upon the person who has to
prove a fact and it never shifts, but the Onus of proof shifts. Such a shifting of Onus is a
continuous process in the evaluation of evidence. So basically the burden lies on the
prosecution but there are times when the accused is called upon to prove that his case
falls under an exception. Then the onus is on the accused and it is considered as
discharged if the accused person succeeds in proving the preponderance of probability
in his favor and he need not prove his stand beyond reasonable doubt.

4
AIR 1982
5
1980 SCC (3) 110
 9

Rule 3
Sec 103 Burden of proof as to a particular fact
The burden of proof as to any 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.

The principle of this section is that whenever a party wishes the court to believe and to
act upon the existence of a fact, burden lies upon him to prove the fact.

For example, A prosecutes B for theft, and wishes the Court to believe that B admitted
the theft to C. A must prove the admission. Similarly, B wishes the Court to believe that,
at the time in question, he was elsewhere. He must prove it.

The principle will not be affected by the fact whether the fact in question is negative or
affirmative.
For example, in an action for damages for malicious prosecution, the plaintiff wants the
court to believe the fact that he was prosecuted without reasonable and probable
cause, and although this is the negative of the issue, the plaintiff has to prove it. 6

Where a person claimed that his license could not have been revoked without notice,
the burden was held to be upon him to prove that fact.7

Where a married woman was driven out of her matrimonial home by ill-treatment, she
filed a case to recover her jewellery and other articles. Her in-laws contended that she
had taken them away. The court held that there would be no presumption that she had
done so, and the burden was upon the in-laws to prove the fact.8

6
Abrath v. North Eastren Rly., (1883) 11 QB 440: LJ QB 620
7
Sri Upendra Mandal v. Sri Bhajahari Mandal, AIR 1991 NOV 107(Gau)
8
Kamini v. Puran Chandra, AIR 1987 Orissa 134
 10

Specific Rules
These rules specifically put the burden on proving certain facts on particular
persons. These principles are called the rule of convenience of burden of proof –

Sec 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.
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.

For example, A wishes to prove a dying declaration by B. A must prove B's

death. Similarly, A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost.

Sec 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.

The general rule in criminal cases is that the accused is presumed innocent. It is
the prosecution who is required to establish the guilt of the accused without any
doubt. At the same time, the accused is not required to prove his innocence
without any doubt but only has to create reasonable doubt that he may not be
guilty.
 11

Section 105 specifies an exception to this general rule. When an accused claims
the benefit of the General Exception clauses of IPC, the burden of proving that he
is entitled to such benefit is upon him.

Section 105 lays down two broad principles –

i. The accused must prove the existence of the circumstances which bring the
case under general exceptions.
ii. The court shall presume the absence of such circumstances unless they are
proved.

For example, if an accused claims the benefit of insanity in a murder trial, it is up

to the accused to prove that he was insane at the time of committing the crime.

Similarly, where A is accused of murder, and alleges that by reason of

unsoundness of mind, he did not know the nature of the act. The burden of proof
is on A.

These principles can be traced back to Woolmington v. D.P.P.9. The following

principles may be derived from the decisions –
1. The prosecution must prove beyond reasonable doubt that the accused has
committed the offence.

9
1935 AC 462
 12

2. The accused may, after making his plea, prove his case beyond reasonable
doubt.
3. The accused is entitled to a benefit, if he manages to create a reasonable
doubt as to the ingredients of the offence, even if he fails to prove his case
under the general exceptions.
Practically, therefore, the burden of proof on accused in cases of general
exceptions is lighter than that prescribed by the Act. While the Act requires the
accused to prove his plea on a preponderance of probabilities, the judiciary has
diluted it and allows the accused to benefit from the general exceptions if he
merely creates a reasonable doubt as to the ingredients of the offence itself. 10

It has been highlighted in J.D. Vanubhai v. State in 1952 that following the
principle in Woolmington case into the interpretation of section 105 would render
the provision redundant, and also would cause a mix up in the separate trial
stages of the prosecution proving the offence and the accused proving general
exceptions. This would also result in an undue burden on the prosecution. This
additional burden on the prosecution spells doom in light of the increase in
organized crime and other socio-economic offences.

Sec 106 Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.

10
MAhabir Singh v. Rohini Ramanadhwaj Prasad Singh, (1933) 35 Bom LR 500 (PC)
 13

Illustrations –
When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that
intention is upon him.
A is charged with traveling on a railway without a ticket. The burden of proving
that he had a ticket is on him.

This section applies only to parties to a suit. It lays down that where any fact is
especially within the knowledge of any person, the burden of proving that fact lies
on that person.

In Eshwarai v. Karnataka,11 it was held that where a man and woman were found
hiding under the bed in a bedroom of the person who was lying dead of injuries,
the burden of proof lies upon them to explain their presence and also the
circumstances in which the deceased met his death.

Where the knowledge of the subject matter of an allegation is peculiarly within

the province of one party to a suit, the burden of proof must lie there also.
Thus, for example, sales of consignments entrusted to commission agents and
particulars of those sales are matters which lie especially within their
knowledge.12

Similarly, in a case of a servant charged with the misappropriation of goods of his

master, if the failure to account was due to an accidental loss, the facts being
within the servant’s knowledge, it is for him to explain the loss.13

The principle underlying section 106, which is an exception to the general rule
governing burden of proof, applies to only such matter of defense which are
supposed to be especially within the knowledge of the defendant. It cannot apply
when the fact is such as to be capable of being known also by persons other than
the defendant.

11
1994 SC
12
Maven v. Alston, (1893) 16 Mad 238, 245
13
Krishan Kumar v. Union of India, AIR 1959 SC 1 390
 14

If facts within the special knowledge of the accused are not satisfactorily
explained by him, it would be a factor against him, though by itself it would not
be conclusive about his guilt.14


Presumptions as to burden of proof
A presumption is an acceptance of a fact as true or existent based upon its strong
probability evident from the circumstances. When the presumption of the court is
in favor of a party, the burden of disproving it rests on the opposite party.

In Sodhi Transport Company v. State of UP, 15 Justice Venkataramiah of SC

observed that a presumption is not evidence in itself but only makes a prima facie
case for party in whose favor it exists. It indicates the person on whom the
burden of proof lies. When the presumption is conclusive, it obviates the
production of any evidence, but when it is rebuttable, it only points out the party
on whom lies the duty of going forward with evidence on the fact presumed and
when that party has produced evidence fairly and reasonably tending to show
that the real fact is not as presumed the purpose of presumption is over.
According to English Law, a presumption can be of two kinds – presumption of
fact and presumption of law. Presumption of fact are those presumption about
things or events that happen in day to day life, which we accept as true due to
inference drawn logically and naturally by our mind. Presumptions of law are
arbitrary consequences that are annexed by law to particular facts. They are legal
fiction.
1. Where the words “may presume” are used, it gives the court a discretionary
power to presume the existence of a fact. Which means that the court may
regard the fact as proved unless and until it is disproved. Where the words
“shall presume” are used, the court shall regard such fact as proved, unless
and until it is disproved. It basically forces the court to presume a fact that is
specified by the law unless and until it is disproved. The court cannot ask for
any evidence to prove the existence of that fact but it may allow evidence to
disprove it. When one fact is declared by this Act to be conclusive proof of
14
St of TN v. Radhakrishnan, 1989 CrLJ 1161 Mad
15
1986 UPTC 721
 15

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.

Sec 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.

Sec 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.

Sections 107 and 108 must be read together because the latter is only a proviso
to the rule contained in the former, and both constitute one rule when so read
together.16These sections deal with the procedure to be followed when a
question is raised before a court as to whether a person is alive or dead.

If a person has not been heard of in seven years, there is a presumption of law
that he is dead,17 and the burden of proving that he is alive is shifted to the other
side.18

In Muhammad Sharif v. Bande Ali,19 A mortgaged certain property to the

defendant in 1890. Thereafter, he disappeared and nothing was heard of him
again. He had no heir. His brother, D, who should have inherited his property,
died about 14 years after M’s disappearance, and by the time the present suit
began, about 18 years had passed to his absence.
The heirs of D filed a suit for the redemption of the mortgage, and contended that
as M disappeared some 18 years ago, he must be presumed to have been dead

16
State of Punjab v. Bachan Singh, (1956) Pun 1232
17
Ramrati Kaur v. Dwarka Prasad, AIR 1967 SC 1134
18
H. I Bhagat v. LL Corporation, AIR 1965 Mad 440
19
ILR (1911) 34 All 36
 16

for the last 11 years, and D¸ who was alive till a later date, must be deemed to
have succeeded him as an heir.
Richards, C.J., held that the mere fact that the evidence adduced by the plaintiffs
went to show that M had not been heard of for more than 7 years, raises no
greater presumption of his death than if the evidence had been confined to the
exact period of 7 years. In other words, the only presumption is that M is dead.
There is no presumption that he died in the first seven years or in the last seven
years. The burden to show that he was alive was on the defendants if it was
necessary for them to do so.

Insurance cases –
The section lays down the circumstances in which death is to be presumed. When
the claimant under a life insurance policy lays out before the court the
circumstances in which the presumption of death becomes operative, he should
become entitled to his claim. If the insurer says that the insured is still alive, the
insurer should prove that fact. But it is not so.
In L.I.C. of India v. Anuradha,20 premiums on a life policy were regularly paid, till
the disappearance of the insured person 7 years passed. He was not heard of
thereafter. The Supreme Court held that for purpose of life insurance claim he
could not be presumed to be dead, nor his death could be chronised with the
date on which he was first reported to be missing. Seven years were to be taken
backward from the date of initiation of proceedings. Premiums were not kept up
to that date. The policy lapsed. The claimants were entitled only to the paid up
value. The Court, however, recommended to the Life Insurance Corporation that
it should devise policies suitable to the needs of insurgency afflicted areas.

Sec 109 Burden of proof as to relationship in the case of partners, landlord

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

20
AIR 2004 SC 2070 : (2004) 10 SCC 131
 17

According to this section, when a person stands in a relationship of partners of a

firm, or landlord and tenant, or principle and agent, it is presumed that such
relationship continues unless the contrary is proved.

If one of them says that they are no more related, he must prove the non-
existence of the relationship.

Partners –
Partnership once show to exist is presumed to continue until the contrary is
proved.21

Landlord and tenant –

Where the relationship of landlord and tenant is admitted or proved to exist, it
will be presumed to continue until it is shown by affirmative proof that it has
ceased to exist. The burden of prove lies on the party who denies the relationship
or the ownership of the landlord.
Mere non-payment of rent, though for many years, is not sufficient to show that
such relationship has ceased.22

Principal and agent –

Where an authority to do an act is once shown to exist, it is presumed to continue
until the contrary is proved.

Sec 110 Burden of proof as to ownership

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

21
Liladhar Ratanlal v. Holkarmal, (1958) 60 Bom LR 203
22
Rungo Lal Mundul v. Abdool Goffoor, (1878) 4 Cal 314
 18

According to this section, when a person is shown to be in possession of any

property, the presumption is that he is the owner of that property. If anybody
denies his ownership, burden lies on him to prove that he is not the owner.

This section gives effect to the principle that possession is prima facie evidence of
complete title; anyone who intends to oust the possessor must establish a right to
do so.23
This is so presumed from lawful possession until the want of title or a better title
it proved.24

Sec 111 Proof of good faith in transactions where one party is in relation of
active confidence
Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of
active confidence.

This section provides that where a person is so related to another in a position of

active confidence, the burden of proving good faith of any transaction between
them lies on the person in good faith.
An active confidence is imposed upon a person in good faith. The active
confidence means and indicates that the relationship between the parties is such
that one is bound to protect the interests of the other.

For example, where the good faith of a sale by a client to an attorney is in

question in a suit brought by the client, the burden of proving the good faith of
the transaction is on the attorney.
Similarly, where 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.

The principle of the rule embodied in this section, which was called “the great
rule of the court”, is that he who bargains in a matter of advantage with a person
23
Churharmal v. CIT, AIR 1988 SC 1384
24
Jadh Singh v. Sundar Singh, (1882) P R No. 122 of 1882 (civil)
 19

placing confidence in him is bound to show that a reasonable use has been made
of that confidence, a rule applying to trustees, attorney, or anyone else.25
A person who claims to have acted under a bona fide belief must himself appear
as witness to establish his claim. The version of other person in that respect may
not be sufficient.26

Sec 111 applies to the circumstances where there is valid transaction between the
parties and one of them is accruing benefit from the transaction without acting in
good faith or is taking advantage of his position. In such cases, the burden of
proving the good faith of the transaction is on the transferee or beneficiary and
the relationship of active confidence must be proved. The burden of proving good
faith in transaction would be on the defendant, dominant party, i.e. the party who
is in position of active confidence.

Fiduciary relationship –
Where a confidence is imposed by one party to another during the course of
transaction, the fiduciary relationship may arise if there arises conflict of interests
between the parties. Where a fiduciary or quasi-fiduciary relationship exists, the
burden of sustaining s transaction between the parties rests with the party who
stands in such relation and is benefited by it.

Sec 111A Presumption as to certain offenses 27

(1) Where a person is accused of having committed any offense specified in sub-
section (2), in –
(a) any area declared to be disturbed area 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

25
Gibson v. Jeves, (1801) 6 Ves Jun 266, followed in Nisar Ahmed Khan v. Mohan Manucha, (1940) 4 3 Bom LR 465,
469 (PC)
26
Lawahar Lal Wali v. State of J&K, (1993) Vol 2 SCC 381
27
Ins. by Act of 1984
 20

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 offense.
(2) The offenses referred to in sub-section (1) are the following, namely –
(a) an offense under section 121, section 121-A, 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).

Sec 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 principle that when a particular relationship, such as
marriage, is shown to exist, then its continuance must prima facie be assumed.28

Under the section, the fact that any person is born –

a. during the continuance of a valid marriage between his mother and any
man, or
b. within 280 days after its dissolution, the mother remaining unmarried
shall be conclusive proof that he is the legitimate son of that man, unless the
parties had no access to each other at any time when he could have been
begotten.

There is no difference between ‘conclusive evidence’ and ‘conclusive proof’, the

aim of both being to give finality to the establishment of the existence of a fact
from the proof of another.29

Access –

28
Bhurma v. Dhulappa, (1904) 7 Bom LR 95
29
Somwanti v. State of Punjab, AIR 1963 SC 151
 21

The Supreme Court considered the meaning of the word “access” in Kamti Devi v.
Poshi Rami.30 Thomas, J., said that earlier there was a controversy as to what is
the true import of the word ‘access’. Some High Courts held that access means
actual sexual intercourse between the spouses.

However, the controversy came to a rest when the Privy Council in Karapaya
Servai v. Mayandi31 held that the word ‘access’ connotes only existence of
opportunity of marital intercourse.

DNA test –
The DNA test cannot rebut the conclusive presumption envisaged under sec 112.
The parties can avoid the rigor of such conclusive presumption only by proving
non-access, which is a negative proof.

The DNA test for proving the paternity of the child can be ordered in exceptional
and deserving cases only if it is in the interest of the child. It cannot be ordered as
a matter of course in every case.

Gestation –
The period of gestation mentioned in this section is 280 days. It does not mention
any maximum period of gestation.

If a child is born after 280 days and after dissolution of marriage, the effect of the
section being merely that no presumption in favour of legitimacy is raised, the
question must be decided simply upon the evidence for and against legitimacy.

Sec 113 Proof of cession of territory

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 Ch. 2), been caddied 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.

30
AIR 2001 SC 2226
31
AIR 1934 PC 49
 22

This section was enacted to exclude inquiry by Court of Justice into the validity of
the acts of the Government so far as cession of territory to any Indian State was
concerned.

A Government notification as to cession of territory to any other State is a

conclusive proof that a valid cession of such territory has taken place at the date
mentioned in such notification.32

Sec 113A Presumption as to abatement of suicide by a married woman 33

When the question is whether the commission of suicide by a women 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 has 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 498-A of the Indian Penal Code (45 of 1860).

This section deals with the question of abetment of woman’s suicide by her
husband or any of his relatives. In such cases, a presumption arises that such a
suicide has been abetted by the husband or his relative, if the following two
conditions are satisfied –
i. The suicide was committed within a period of seven years from the date of
her marriage; and
ii. Her husband or his relative has subjected her to cruelty (as defined in sec
498A of the Indian Penal Code).

The words “having regard to all the other circumstances of the case” in this
section give wide powers to the court to appraise evidence and come to a

32
Govindrao v. State of MP, AIR 1982 SC 1201
33
Ins. by Act of 1984
 23

conclusion whether there was some extraneous case for a woman to commit
suicide.34
The words “all the other circumstances of the case” require that a cause and
effect relationship between the cruelty and suicide has to be established before
drawing the presumption. Therefore, the presumption is not of mandatory
nature.35

Where the wife’s suicide took place more than a month-and-a-half after the
demand for dowry was met and matters were settled, it was held that it would be
both unsafe and unjust to invoke the presumption of guilt under section 113A of
the Act.36

It is essential for the application of this section that the woman had committed
suicide. If it is not a case of suicide, but of accidental death, this presumption does
not arise.37

Sec 113B Presumption as to dowry death 38

When the question is whether a person has committed the dowry death of a
women and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with, any
demand for dowry; the court shall presume that such person had caused the
dowry death.

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).

Dowry death is defined in section 304-B of IPC. It covers a kind of death which is
not natural, occurring within 7 years of marriage and is preceded by cruelty or
harassment in connection with dowry.

The basic burden is on the prosecution to establish the requirements for

application of the presumption, e.g., that the incident took place within 7 years of
34
Krishan Lal v. Union of India, 1994 CrLJ 3472 (P&H)
35
Ramesh Kumar v. State of Chattisgarh, 2001 CrLJ 4724 (SC)
36
Samir v. State of West Bengal, 1993 CrLJ 134
37
Suresh v. State of Maharashtra, 1992 CrLJ 2455
38
Ins. by Act no. 43 of 1986
 24

marriage.39 Where the prosecution established the ingredients of dowry death

under Section 304-B IPC, it was held that onus was on the accused to rebut the
presumption under Section 113-B.

Soon before death –

The presumption as to dowry death operates only in cases in which the
prosecution proves that soon before her death the victim was subjected to
cruelty or harassment for dowry demand. The presumption of dowry death arises
from the fact of cruelty and harassment soon before death within 7 years of
marriage.40
The expression “soon before” does not mean immediately before. It implies that
the interval between the two events should be such that there remains a
proximate and live link between them. This has to be determined by the court on
the facts and circumstances of each case.41
The expression does not indicate any fixed period. It depends upon the
application of the proximity test. There should be existence of proximate and live
link between the death as an effect of the cruelty. The stray incidents of cruelty
would not bring the case within the scope of the presumption.42
In Kailash v. State of MP,43 the Supreme Court observed that the scope of these
words cannot be limited to a fixed time limit. The expression should normally
imply that the interval between cruelty, harassment and death should not be such
as to disrupt a proximate live link. The cruelty should not have become too stale
before the event. The expression is pregnant with the test of proximity.

Cruelty and harassment "soon before death" means that there should exist live
and proximate link between cruelty and death. It is a relative expression and,
therefore, no straight jacket formula can be laid down as to what length of time
would be considered "soon before". The courts have to see in each case whether
the requirement of "soon before" was satisfied on the facts of the case.44

39
Baljeet Singh v. State of Haryana, AIR 2004 SC 1714
40
Bhola Ram v. State of UP, AIR 2014 SC 241
41
Thakhan Jha v. State of Bihar, (2004) 13 SCC 348
42
Hira Lal v. State (NCT) of Delhi, AIR 2003 CS 2665
43
AIR 2007 SC 107
44
Kunhiabdulla v. State of Kerala, AIR 2004 SC 1731
 25

The words imply that there should not be much interval between the happening
and the cruelty or harassment. The gap of time should not be so long that no
impact remained on the mental equilibrium of the target woman.45

The prosecution has to rule out the possibility of a natural or accidental death so
as to bring the case within the purview of “death occurring otherwise than in
normal circumstances”.
Where the accused was charged under section 302 of the Indian Penal Code,
1860, the presumption under section 113A of the Indian Evidence Act, 1872, is
not available. In such a case, conviction and sentence has to be based on cogent
and reliable evidence.46

In Surinder Singh v. State of Haryana,47 the Supreme Court emphasized that this
presumption was introduced to give relief to woman suffering from cruelty. Each
and every word used in the provision has to be construed in accord to legislative
intent. Where the woman met her death within three months and four days of
her marriage. Death was not natural. Evidence showed that the accused
(husband) was unhappy over dowry received. She was ill-treated all through her
short married life. The court said that cruelty on any day would be cruelty "soon
before" her death. Her brothers being not able to tell any particular day on which
dowry demand was made was of no consequence. Sums demanded for business,
being connected with marriage is also a dowry demand.

Sec 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 –

45
Baldev Singh v. State of Punjab, AIR 200 SC 913
46
P Mani v. State of TN, AIR 2006 SC 1319
47
AIR 2014 SC 817
 26

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 –
a. 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;
b. 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;
 27

c. 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;
d. 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;
e. As to illustration (e) – A judicial act, the regularity of which is in question,
was performed under exceptional circumstances;
f. 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;
g. 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;
h. 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;
i. 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.

This section has given enough discretionary power to the court to draw certain
inference from the facts. The presumption under section 114 is discretionary, not
mandatory. Presumption can be drawn only from certain set of facts and not from
other presumptions. The presumptions are rebuttable in nature.

Common course of natural events –

This expression signifies that an event can take place only when certain
circumstances become favourable or unfavourable. What is most common
depends upon the facts and circumstances. For example, period of gestation,
continuance of life, etc.

Human conduct –
Human conduct means the conduct found only in human beings who can judge
what is right and wrong. The expression of such conduct may either be positive or
 28

negative, and that can be determined by his actions. For example, if a man and a
woman are living as husband and wife for a long time, the presumption is that
they are married. 48

Public and private business –

It is necessary that the common course of natural events, human conduct and
public and private business in so far as is relevant to the facts in issue in a
particular case must be established.
A catalogue which embodies a statement of the firm regarding the price at which
it is prepared to sell its articles is not hearsay and is admissible in evidence of
proof of the price.49
There is a presumption that every person in his private character does his duty,
and unless the contrary is proved, it is presumed that all things are rightly and
regularly done.50

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

rape 51
In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause
(e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l),
clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code,
where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and such
woman states in her evidence before the court that she did not consent, the court
shall presume that she did not consent.

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

Section 114-A deals with cases for prosecution of rape under section 376(2) of the
Indian Penal Code, where sexual intercourse by the accused is proved, and the
question before the court is whether such intercourse was with or without the

48
Churharmal v. CIT, AIR 1988 SC 1384
49
Hansanali v. Darashah, (1948) Nag 922
50
Zeenat v. Prince of Wales Medical College, AIR 1971 Pat 43
51
Subs. by Act of 2013
 29

woman’s consent. In such cases, if the woman, in her evidence, states before the
court that she did not consent, the court must presume that she did not so
consent.

The following three conditions must be satisfied before the presumption

contained in this section can be raised –
i. It should be proved that there was sexual intercourse.
ii. The question before the court should be whether such intercourse was
with or without the woman’s consent.
iii. The woman must have stated, in her evidence before the court that she
had not consented to the intercourse.52

The presumption would apply not only to rape cases, but also to cases of
attempted rape, as for instance, where the victim was disrobed and attempts
were made to rape her, which, however, could not materialize because of
intervening circumstances.53

This presumption can be drawn only when the accused says that he indulged in
sexual intercourse with the consent of the girl. If the case of the accused is not
that such intercourse was had with her consent, no presumption can be drawn
under the section.54

In Nawab Khan v. State,55 it was held that the moment the prosecutrix with whom
sexual intercourse is committed, disposes before the court that she did not give
the consent to sexual intercourse, then the court shall presume that there was no
consent. In such a case, if the accused claimed that there was consent then he has
to prove that the prosecutrix consented to the sexual intercourse.

52
SK Zakir v. State of Bihar, 1983 CrLJ 1285
53
Fagnu Bhai v. State of Orissa, 1992 CrLJ 1808
54
Ravindranath v. State of U.P., 1991 CrLJ 31
55
1990 CrLJ 1179
 30

BIBLIOGRAPHY

Websites referred –
1) http://hanumant.com/LOE-Unit11-BurdenOfProof.html
2) https://en.wikipedia.org/wiki/Burden_of_proof_(law)
3) https://www.lawfarm.in/blogs/law-of-evidence-in-india

Books Referred –

1) Dr. Avtar Singh, Principles of the Law of Evidence, (Central Law Publications, Allahabad,
22nd Ed, 2016)
2) Rattan Lal, Dhiraj lal, Law of Evidence, (Wadhwa & co., Nagpur, 1994)