Q.

2 Discuss in detail the concept of Dying declaration- meaning concept, evidentiary value
alongwith case laws.

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged
with the offence of murder before the court of session. That he had
murdered one DULARI, a prostitute by cutting her throat through RAZOR.
It seems that one-morning dulari with her throat cut was taken to the
police station and from there to the dispensary. She was alive till the
morning. The post-mortem report shows that the windpipe and the
anterior wall of the gullet had been cut through. When Dulari was taken
to the police station, she was questioned by her mother in the presence
of a sub-inspector. She was again questioned by the sub-inspector,
deputy magistrate and subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and
signs. Magistrate asked dulari, as who had wounded her, but due to the
injured condition dulari was unable to speak. After that, The magistrate
mentioned several names one by one and asked if they had wounded her.
Dulari moves her hand forward and backwards and made negative and
affirmative signs. Subsequently, the magistrate asked whether Abdullah
had wounded her, for that dulari waved her hand made the sign in the
affirmative, the magistrate recorded the statement. After that question
was put to her that if she been wounded with a knife or sword. In this
regard, dulari makes a negative sign, again magistrate asked her if she
had been wounded with the RAZOR. She in answer to this made an
affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the
same was accepted as evidence to prosecute Abdullah.

Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was

made by her in the form of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

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The first declaration was recorded by the doctor when she was admitted
in the hospital on the night of December 16, 2012 and the second on
December 21 by the sub-divisional magistrate during which she gave
exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on

December 25 and was mostly by gestures. The bench said that as far as
the third dying declaration is concerned, this court has already held that
the dying declaration made through signs, gestures or by nods are
admissible as evidence.

Oral and written

When the person gives the name of the murderer to a person present and
written by any of them then it is a relevant dying declaration. However,
people may dispose of the name of the mugger orally.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s

mother and brother gave the evidence, that the deceased made the
statement month prior to the incident of suicide by her that the appellant,
her husband used to taunt the deceased saying that she had come from
a hunger house and the appellant himself go to the house of deceased
and asked for 10.000/-. It was held that the dying declaration and
appellant were convicted under section 304B and 498A of IPC. The Court
referred to Pakala Narain Swamy v. Emperor[3]. in which Lord
Atkin: held that the circumstances of the transaction which
resulted in the death of the declarant will be admissible if such
transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete
can not be admissible as evidence. When the condition of the deceased is
grave and at his own request a statement made by him in the presence
of the doctor was later taken by the police but could not be completed as
the deceased fell into a coma from which he could not recover. It was held
that the dying declaration was not admissible in court as the declaration
appears to be incomplete on the face of it. But the statement, though it
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is incomplete in the sense but conveys the declarant all necessary
information or what he wanted to state, yet stated as complete in respect
of certain fact then the statement would not be excluded on the ground
of its being incomplete.

The deceased stated, “I was going home when I came near the house of
Abdul Majid, Sohail shot me from the bush. He ran away. I saw.” this was
the dying declaration made by the deceased and further was unable to
answer the questions. It was held that there is no question of
incompleteness so far as the context of the case is concerned. In the case
of Muniappan v. State of Madras[4]. The deceased made the dying
declaration as follows:

“Sir,This day 24th January 1960 in the afternoon at 12:30 Muniappan son
kola goundan of kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was
taken after he was dead. This declaration against Muniappan was
complete and admissible.

Question- Answer form

Dying Declaration can be made in the form of Question-answer. the
deceased, in some of her statement, did not state the actual part played
by the appellant. She merely answered the questions put to her. The court
held that when questions are put differently then the answer will also
appear to be different. At first glance, the detailed description of the
offence may appear to be missing but the statement of the deceased
construed reasonably. However, when the magistrate records the dying
declaration, it must be preferred to be recorded in the form of a question-
answer must be preferred. If there is nothing to doubt that the person
who records the statement made by the deceased exact word to word,
would not make any difference merely because the same was not
recorded in the form of question and answer.

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Reason for admitting dying declarations in evidence
A dying declaration is admitted in evidence that is truly based on the
principle of “Nemo moriturns proesumitur mentiri (man will not meet his
maker with a lie in his mouth). Dying declaration does not require any
corroboration as long as it creates confidence in the mind of the Court and
free from any form of tutoring. In case Uka Ram v. State of Rajasthan[5].
Court held that dying declaration is admitted upon consideration is made
in extremity; when the maker of the statement is at his bed end, every
hope of this world is gone; and every motive of falsehood is silenced and
mind induced to speak only truth. Indian law recognises this fact that “a
dying man seldom lies”.

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the
statement must be in a fit state of mind. If the court has the slightest
doubt about the mental soundness of the maker of dying declaration, it is
unsafe and unfair for the base on such a statement.

The mere fact that the victim in his dying declaration did not make any
reference to injuries received by the accused is not a genuine ground that
decides the merit of dying declaration. Where the dying declaration was
recorded by the doctor who himself certified that the patient was in a fit
condition for giving the statement, his non-mentioning that the patient
was in a fit mental condition and throughout remained conscious would
be of no consequence.

In case State of M.P. v. Dhirendra kumar[6]. The mother-in-law of the

deceased was in the position to reach the upstair within 5 to 6 minutes
after hearing the cry of the deceased. According to the opinion of the
autopsy surgeon, the deceased was able to speak about 10-15 minutes.
The Supreme Court did not agree with the view of the High Court that the
deceased is not in a position to make the dying declaration, as it was
reaffirmed by the autopsy report and circumstances of the case that the
deceased was in a fit state of mind to talk when her mother-in-law reached
the place where the deceased was dying.

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Who should record the dying declaration?
Any person can record the dying declaration made by the deceased, but
the person who is recording the dying declaration must have some nexus
with the deceased either circumstantially or by some fact. However, the
doctor or police officer hold more value as compared to the normal person.
As far as the dying declaration is concerned the magistrate entrusted to
record the dying declaration, as the statement recorded by him is
considered more evidential rather than statement recorded by the doctor,
police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases
where the person dies of burn injuries. Court hold the opinion that “The
law on the issue can be summarized to the effect that law does not give
any direction that who can record a dying declaration but just provided
that magistrate is above all the person in subject for recording the
statement, nor is there any definite form, format or procedure for the
same,” said a bench of Justices B S Chauhan and Dipak Misra while
quashing the high court order in the case of dowry death acquittal case.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some
circumstances where the judicial magistrate, police officer and doctor is
not available, the Court can not reject the dying solely statement made
before the normal person. But the person who records the statement must
show that the deceased was in a fit state of mind and conscious while
making the statement no matter if the statement is not recorded by
Judicial Magistrate, doctor and police officer. The statement is admissible
in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the
deteriorated condition of the declarant, the statement can be recorded by
the doctor or by a police officer. But one condition must be coupled with
it that while recording the statement there shall one or two-person
present there as a witness otherwise the Court may find the statement to
be suspicious. Moreover, the statement record by the doctor, later
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endorses that the declarant was not in a stable condition and his
statement would not be considered as evidence, rectify by the witness
that the deceased was in a fit state of mind and conscious to make the
declaration. It was held in the case of N. Ram v. State[11] that the
medical opinion can not wipe out the direct testimony of an eye witness
which states that the deceased was in a fit mental condition and able to
make a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has
deemed to be considered as reliable and attracts the evidentiary value as
he presumed to know how the dying declaration should be recorded and
he is a neutral person. Moreover, the magistrate has empowered to record
the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the
magistrate to record the statement of the dying person, no matter
whether he has jurisdiction over that case or not, and in case where the
statement recorded by the magistrate who has no jurisdiction in that case
subsection (6) will apply. Here the word “statement” does not confine to
only the statement by the deceased and witness but also include a
statement of the accused, in order to satisfy himself, but the accused
statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan

magistrate shall have the power to record the dying statement made by
the dying person, whether the magistrate has jurisdiction in that
particular case or not, he will be able to record the state provided under
this chapter or by any other law for the time being enforced, or at the
time before the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who
record the statement should tell the accused that he has to made only
statement which shall not be amount to confession, but if he did so, then
the confession can be used against him for the purpose of conviction. This
is the sine qua non for recording confession. The other important
requirement is that the Magistrate must raised questions from the
wrongdoer to satisfy himself that the confession made by the accused was

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voluntary so as to enable him to give the requisite certificate under
subsection(4) of this chapter. The judicial magistrate here tell the accused
that he is not bound to make a confession, but he did not ask the question
from the accused in order to satisfy in question, whether the statement
made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the
Magistrate did not clear the rule that the statement made by the accused
should not be amount to confession, if he does so then it will be used as
evidence against him, can not be considered. The Magistrate must satisfy
himself that the statement made by the accused voluntary, no pressure
or force was used on the accused while making the confession. Any mark
of the person of the accused to vitiate the voluntary character of the
confession. When was held not only inadmissible under the section but it
could not be used under the other provision of Indian Evidence Act such
as sections 21 & 29.

Language of the statements

As far as the language of the statement is concerned, it should be
recorded in the language of the deceased in which he is fluent or may
possible than in Court language. The court cannot reject the dying
statement on the basis of the language in which it was made. It can be
recorded in any language. Even if the dying declaration is made by the
deceased in Urdu, Hindi, Punjabi languages, it was considered that
statement could not be denied on the ground of language in which it was
made solely or on the ground that it was recorded in Urdu. When the
statement was given by the deceased in Urdu and the magistrate recorded
it in English than in that case precaution should be taken while in
explaining every statement to the deceased by another person, it was
declared that the statement was the valid dying declaration.

Statements made in different languages

When two dying declaration was recorded in two different languages on
is in Marathi and the other is in Hindi and the deceased were proficient in
both the language the statement could be the basis of conviction as it was
held

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in the case of Amar Singh Munna Singh Suryavanshi v. State of
Maharastra[13].

Points to remember
1. Dying declaration made by the deceased can be recorded in any
language.
2. If the statement was recorded in another language than the one
which magistrate recorded, then precautions should be taken to
explain each and every aspect and phrase.
3. The court cannot deny or discard the dying declaration only on the
ground of language.

Multiple dying declarations

Supreme Court Of India in concern to multiple dying declarations, it can
be considered upon without corroboration if there is no breakdown of fact
in all the dying declaration.

The statement of the deceased should match the facts and circumstances
of the case. It is very important to understand the character of multiple
dying declarations. Points to be considered in multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the
court will examine the facts of the case with the dying declaration
Or examine the witnesses.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of
death. Evidence Act has taken this law from English law. If the statement
has been made even when no cause of death had arisen then also the
statement will be relevant. It is not important at all that the statement
recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor[16], it was held that the letter given
by the deceased to his wife before going to the place where he was killed
8
was relevant. The court said that the statement made must be at any rate
near death or the circumstances of the transaction explaining his death is
relevant under section 32 of Evidence Act. In this case, the court stated
that dying declaration can be any statement that explains the cause of
death or the circumstances of the transaction explaining his death. Hence,
statements as to any of the circumstances of the transaction which
resulted in the death would be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and
stating that his life was in danger, it is relevant to be recorded as
circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme
Court Of India observed that statement made by injured person recorded
as FIR can be deemed as dying declaration and such declaration is
admissible under Section 32 of Indian Evidence Act. It was also observed
by the court that dying declaration must not shows the whole incident or
narrate the case history. Corroboration is not necessary in this situation,
Dying declaration can be declared as the exclusive evidence for the
purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the
question arises that after the dying declaration was recorded and the
deceased is still alive, was the statement holds the same effect. In that
situation, the deceased now turned to be a witness against the accused
to narrate what the actual story was. As the dying declaration itself
mentioned the word dying, so it is necessary that there must be an
expectation of death on the part of the declarant.

Criticism of dying declaration doctrine

Since the nineteenth century, critics have questioned the credibility of
dying declarations. In a state court case, the Wisconsin Supreme Court
considered the issue of a dying declaration. The defense pointed out that

9
“this kind of evidence is not regarded with favor.” The defense argued
that several factors could undermine the reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a

desire of self-vindication, or a disposition to impute the responsibility for
a wrong to another, as well as the fact that the declarations are made in
the absence of the accused, and often in response to leading questions
and direct suggestions, and with no opportunity for cross-examination: all
these considerations conspire to render such declarations a dangerous
kind of evidence.

Requirements of dying declaration

According to section 32 clause (1) of Indian Evidence Act, the requirement
of dying declaration is as follows:

1. The statement made by the deceased may be oral or written. But

in some cases it can be made with sign and gesture depends on
the condition of the deceased
2. The statement must be as:

 Cause of death- when the statement is made by the person as to

the cause of his death or as to any of the circumstances of the
transaction which was the reason for his death not cover all the
incident which are not relevant in order to determine the cause
 Circumstances of the transaction- the statement made by the
deceased is only related to the circumstances of the transaction
will result in the death of the deceased, remoteness or having no
nexus which can not be connected with the transaction have no
value.
 Resulted in the death- the deceased statement should have the
cause and circumstances that will clearly reason for his death or
ultimately result in his death.

Dying declaration Case laws and landmark

Judgments

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1. Lakhan v. State of M.P.[18] in this case supreme court provides that,
when the condition is satisfied that the dying declaration made by the
deceased is true and can be relied upon, as the declarant is found to be
conscious and mentally fit while making the statement, and the statement
made by him proven to be voluntarily and no compulsion was there while
making the statement and can be put for the sole basis of conviction. In that
situation there is no need for corroboration is necessary.
In case of multiple dying declarations consists which consist in the form
of irregular interval and contradict each other, dying declaration recorded
by the person who is entitled to record like magistrate then there is no
doubt and can be found to be reliable. But in circumstances where it was
observed that the statement made by the deceased is not voluntarily but
due to some force or compulsion, then the court raised suspicion on that
dying declaration and Court should re-examine the statement of witness
and other facts in order to determine the truth.

2. In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court set
forth some measure to test the veracity in the case when there is more than
one dying statement. The court provides that there must be a series of
examinations in order to determine the truth. If the statements provide
different versions and do not couple with given facts, then the court must
opt for other evidence in their record to clarify the things so that truth can
be inferred.

3. In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme Court

while deciding the issue of multiple dying declarations, which varying from
other statements and have no series related to each other, this will raise a
doubt in the eyes of court to whether the statement should be believed or
not, in order to clear the issue the Court has given some directions which
help to guide while exercise the judgment by court in such matters,
examined.

The Court put forward the point that when multiple dying declarations
made by the declarant, if found either contradictory or are at variance and
having no nexus to each other to a large extent and narrate another
version of the story, then the test of common reasonableness would be
applied while examining which dying declaration is corroborated by
circumstantial evidence. Further, when the dying declaration was made
the condition of the deceased at the time of making of each declaration
concerned, medical report of the deceased, truthfulness of statements
11
made by deceased, possibility of deceased being tutored, are some of the
points which would guide while exercise of judicial function by court in
such matters.

The Supreme Court also observed that the dying declaration is the
statement made when a person is at there bed end, as the word
dying declaration itself signifies its meaning. A person having a
serious apprehension of death and there shall be no chances for
his survival. At this point, the court assumed that whatever the
statement made by the declarant is purely true as the man will
never meet his maker with a lie on his lips and person will speak
only truth.

4. Natha Shankar Mahajan v. State of Maharashtra[21] in this

case the supreme court ruled that if there is a doubt about the
statement made by the deceased, in that case, the gain will
transfer to the accused. As this is the correct Law preposition.
Moreover on the other was round if the statement found to be true
and reliable ten it can be used solely as the purpose of the
convection.
5. The Supreme Court in the case of Surajdeo Oza v. State of
Bihar[22] does not give an affirmative answer to the question and
held that merely because the dying declaration is a brief statement
it is not to be discarded. On the contrary, the length of the
statement itself guarantees the truth.
The Court has to scrutinize the dying declaration carefully and examine
each and every sort of situation and must ensure that the declaration is
not the result of tottering prompting of imagination and the deceased had
the opportunity to observe and identify the accused and was in a fit state
while making the dying declaration.

Dying deposition
Dying deposition is almost a dying declaration. The main difference
between both is that the dying deposition is always recorded in the
presence of a magistrate. Whereas dying declaration can be recorded
even by a normal person, doctor and by a police officer.

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A deposition is recorded when the lawyer of the accused is present and
magistrate record the dying declaration. But dying declaration has no such
conditions, but the evidentiary value will be more if the statement is
recorded by the magistrate. However, it can be recorded by the doctor or
police officer also.

Medical report
Medical reports are those reports which are provided by the doctor usually
in criminal cases, they are admitted as evidence in a court of law when a
doctor provides oral evidence while taking the oath. The report includes
the mental condition, fitness of the disease whether he is able to give the
statement or not. And sometimes forensic and autopsy reports also clarify
that the deceased was saying right in his dying declaration. For example,
there was a case in which the mother of the deceased, when hearing the
cry of her son immediately reached to their room, where the deceased
made the dying declaration in front of his mother that he was in love with
some girl and she left her and due to this he commits the suicide. The
time to reach in his room was estimated by the police in their investigation
was about 2 minutes.

Here the question comes that if the mother was really saying the truth
about the declaration as there was no one when the deceased was making
the statement, the absence of medical fitness will remain in the dark. But
the autopsy report conferred that decrease is the condition to survive for
6-8 minutes. So that the mother statement can be admissible in a court
of law. In that perspective the role of medical report become crucial and
if sometimes, if there is a plotting in dying declaration (which rarely
happens as the law presumed that no one meet his maker with a lie on
his lips) the report may contract the statement which creates the sense
of suspicion and the statement made by the deceased can not be regarded
as the sole base for the conviction. But the medical report did not discard
the statement on the basis of the report in which it was stated that the
nature of injuries sustained by the deceased. Moreover, if the medical
report states the fitness of the deceased while taking the statement of the
deceased by magistrate then there is no need for a separate test of fitness
by the magistrate.

Doctor statement
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It is necessary that the dying declaration recorded by a magistrate should
be endorsed by the doctor, as it gains more evidentiary value. But there
are many situations when the statement is recorded by the doctor as due
to circumstantial reasons and unavailability of magistrate. So the
statement of doctor is regarded to be true and being a doctor, he
understands about the condition of the deceased whether the deceased is
able to make dying declaration or not. In the case where a burnt wife had
been admitted in the hospital and the doctor who operates her, disclose
the fact that the husband of her pour kerosene oil and set ablaze to her.
At this point, the doctor records the statement point by point. Later on, it
was found that records are also in favour and did not contradict the
statement made by the deceased. The court held that the doctor has no
other motive to make a false statement and the value of statement
recorded by the doctor is admissible. But the statement made by the
doctor is proven more relevant when there is an eye witness in order to
endorse that particular dying declaration.

Dowry death, wife burning

When there is a situation after the three or four months of the marriage,
where the wife is burnt by her husband or husband relatives for dowry
purposes or for monetary gain. And in relation to this, she expressing the
danger and threat to her life is somehow the expression which depicts the
circumstance which leads to the death of the deceased. But when there is
a contradiction found in the statement by the deceased, it would raise the
presumption of suspicion and decrease its value as evidence. In case
where wife by way of plotting set ablaze to her and when she was
admitted to hospital, where she made the statement that her husband set
on fire to her after some point of time it was discovered in the police
investigation that the children of the deceased state that their father will
never do this kind of act, moreover they also said that the deceased was
tried for committing suicide earlier. And police also found that the relation
between the husband and wife is not good. And deceased also think that
her husband had some extramarital affair. All the facts show that there
was a motive to lie. So the court held the dying declaration to be falsehood
and set aside the conviction. And the court has reason to believe, as the
person who took the deceased to the hospital was none other than her
husband.

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Evidentiary value of dying declaration
In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the
court that the evidentiary value of dying declaration made by the
deceased:

There is no doubt that the dying declaration is admissible in court under

section 32(1) of the Indian Evidence Act. and there is no compulsion while
making of dying declaration to take an oath, but the truth of the statement
can be determined by the cross-examination. The court has to ascertain
necessary measures to check the sanctity of the statement made by the
deceased. As in India law, it was presumed that the man who is going to
die, not meet his maker with a lie on his lips this is because, when the
person is at his bed end all the desire and greed of person come to an end
so probably there is no motive to lie. After that, the court must be satisfied
with the condition that the deceased must be in a fit state of mind while
making the statement. After all the measures assured by the court and
satisfied that the statement is made voluntarily and true then it will be
sufficient to accept the statement to finding conviction even without the
corroboration.

Exception of dying declaration

There are many circumstances in which the statement made by the dying
person is not admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death

of the deceased. For example, if a person in his declaration state
anything which is not remote or having a connection with the
cause of death than the statement is not relevant and hence not
be admissible.
2. The declarant must be competent to give a dying declaration, if
the declaration is made by the child then the statement will not be
admissible in court as it was observed in case of Amar Singh v.
State of M.P[27] that without the proof of mental fitness and
physical fitness the statement would not be considered reliable.
3. The statement which is inconsistent has no value and can not be
considered as evidentiary in nature.

15
 4. The statement made by the deceased should be free from any
influential pressure and should be made spontaneous.
5. It is perfectly allowed to the court if they reject any untrue
statement which contradicting in nature.
6. If the statement is incomplete in the sense which means it can not
answer the relevant questions which are necessary to found guilty,
and on the counterpart, statement deliver nothing so it will not be
deemed to consider.
7. Doctor’s opinion and the medical certificate should with the
statement and support that the deceased is capable of
understanding what statement he makes.
8. If the statement is not according to the prosecution. In this regard,
the following points should be taken into consideration by the apex
court.

 While making the statement deceased must be in fit mind of the

state.
 Should be recorded by the magistrate or by a police officer
and person in a case when deceased was so precarious
 A dying declaration should be recorded in question-answer form
and written in words of the persons exactly who gives the
statement.

Conclusion
The dying declaration is not specifically mentioned in our penal law under
Section 32(1) of IPC. it is the statement made by the person who is going
to die, and that statement will be considered as evidence in court, how
his death caused and who is the mugger. There are many conditions that
relied upon the dying declaration that it should be in an adequate manner
as dying declaration is the weapon who convicted the accused and stood
as strong evidence. The admissibility of dying declaration accepted in our
Indian court because the law presumes that in Leterm Mortem i.e in his
last parting words the man will never lie as anyone will meet his maker
with a lie on his lips. This is because a man who is going to die, end with
all his needs and wants and his interest is no more passionate for self
deeds so he seldom lies.

16
However, the dying declaration is found to be maliciously made then the
court has the right to reject the statement. Or there are other situations
and circumstances which coupled with dying declaration for its
admissibility which discussed above.

17
Q 3 short note-
May presume and Shall Presume

Introduction
Presumption generally means a process of ascertaining few facts on the
basis of possibility or it is the consequence of some acts in general which
strengthen the possibility and when such possibility has great substantiate
value then generally facts can be ascertained. A presumption in law
means inferences which are concluded by the court with respect to the
existence of certain facts. The inferences can either be affirmative or
negative drawn from circumstance by using a process of best probable
reasoning of such circumstances. The basic rule of presumption is when
one fact of the case or circumstances are considered as primary facts and
if they are proving the other facts related to it, then the facts can be
presumed as if they are proved until disproved. Section 114 of Indian
Evidence Act specifically deals with the concept that ‘the court may
presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of (a) natural events, (b) human
conduct, and (c) public and private business, in their relation to the facts
of the particular case’.

India Code:

Section Details. "May presume". -- Whenever it is provided by this Act

that the Court may presume a fact, it may either regard such fact as
proved, unless and until it is disproved, or may call for proof of it. "Shall
presume".

Difference between May Presume Shall Presume and Conclusive

proof
May presume is a condition when the court enjoys its discretion power
to presume any/ certain/ few facts and recognize it either proved or may
ask for corroborative evidence to confirm or reconfirm the presumption
set by the court in its discretion. Section 4 of the Indian Evidence Act
provides that a fact or a group of facts may be regarded as proved, until
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and unless they are disapproved. The concept is defined under Section 4
of this act that ‘May Presume’ deals with rebuttable presumption and is
not a branch of jurisprudence.

Whereas, shall presume denotes a strong assertion or intention to

determine any fact.Section 4 of Indian evidence Act explains the principle
of ‘Shall Presume’ that the court does not have any discretionary power
in the course of presumption of ‘Shall Presume’, rather the court has
presumed facts or groups of facts and regard them as if they are proved
until they are disproved by the other party. Section 4 of the Indian
Evidence Act explains that the concept of ‘Shall Presume’ may also be
called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory
Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a
branch of jurisprudence.

While, Conclusive Presumptions/ Proofs, this can be considered as

one of the strongest presumptions a court may assume but at the same
time the presumptions are not completely based on logic rather court
believes that such presumptions are for the welfare or upbringing of the
society. With regards to Conclusive proofs, the law has absolute power
and shall not allow any proofs contrary to the presumption which means
if the facts presumed under conclusive proofs cannot be challenged even
if the presumption is challenged on the basis of probative evidence. This
is the strongest kind of all the existing presumptions whereas Section 41,
112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are
one of the most important provisions related to the irrebuttable form of
presumptions or Conclusive Presumption.

Illustration- A and B married on June 1 and the husband left home to

his work for 6 months later he discovered that her wife is pregnant he
divorced the wife and challenges that he is not liable for paying damages
either to his wife or to his illegitimate son. And also explains that he never
consumed his marriage as just after one day of marriage he left his home
for his work. But in this case, the court will conclusively presumed that
the son born out of his wife is legitimate because he was with his wife for
at least 1 day and shall not allow any proof contrary to the conclusive
proof even if he provides probative evidence.

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General Classification of Presumption
The traditional approach of common law system has classified
presumption only under two categories that are a presumption of law and
presumption of facts but to avoid any ambiguity in deciding any case the
Indian legal system has adopted the third classification that is mixed
presumptions which includes both the aspects of facts as well as law.
Hence the existing legal system has three types of presumptions which
are as follows:

1) Presumption of Facts- Presumptions of facts are those inferences

that are naturally and reasonably concluded on the basis of observations
and circumstances in the course of basic human conduct. These are also
known as material or natural presumptions. Natural Presumptions are
basically instances of circumstantial evidence as it is believed that it is
very good to act in the course of reasoning where much inferences can be
easily concluded from other evidence otherwise it will keep much
ambiguity on the legal system because it will be much more difficult
because of the legal system to prove every fact to capture the offenders
or law conflicted member of the society. Natural Presumptions are
generally rebuttable in nature.

There are few provisions that are directly expressing about Natural
Presumptions such as Section 86- 88, Section 90, Section 113A, Section
113 B of Indian Evidence Act. Where Section 113A & 113 B are one of the
most important provisions of presumptions under this Act, whereas
Section 86 talk about certified copies of foreign judicial records,
Section 87 expresses presumption of Books, Maps and Charts,
Section 88 deals with presumption related to Telegraphic Messages,
Section 90 deals with documents aged thirty years old, whereas Section
113 A deals with hardcore crime that is Presumption as to abatement of
suicide by a married women and Section 113 B deals with the presumption
as to dowry death. Under the Presumptions of Facts, the concept of ‘shall
presume’ is utilized. And by the concept, the court will presume that a
fact ascertained before them are proven facts until and unless they are
proven disproved by the accused. The concept of ‘shall
presume’ expresses that the courts are bound to maintain and recognise
some facts as proven by making a mandatory presumption and the court
has to consider them as completely proven until such presumption are
challenged and disapproved. When these presumptions are disproved by
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the challenging party then the court has no discretion on maintaining such
presumptions.

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