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Evidentiary Presumptions

The document discusses evidentiary presumptions, distinguishing between presumptions of law and fact, and outlining the circumstances under which courts may presume certain facts. It highlights the legal implications of presumptions related to legitimacy, abetment of suicide, and dowry death, emphasizing that these presumptions are not mandatory but permissive based on the circumstances of each case. Additionally, it underscores the burden of proof and the presumption of innocence in criminal cases.

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Daksh Saini
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0% found this document useful (0 votes)
9 views30 pages

Evidentiary Presumptions

The document discusses evidentiary presumptions, distinguishing between presumptions of law and fact, and outlining the circumstances under which courts may presume certain facts. It highlights the legal implications of presumptions related to legitimacy, abetment of suicide, and dowry death, emphasizing that these presumptions are not mandatory but permissive based on the circumstances of each case. Additionally, it underscores the burden of proof and the presumption of innocence in criminal cases.

Uploaded by

Daksh Saini
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
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EVIDENTIARY

PRESUMPTIONS
PRESUMPTIONS IN
GENERAL

 Presumptions may be either of law or of fact, and


when of law, may be either conclusive or rebuttable,
but when of fact, are always rebuttable.
 Mixed presumptions are those which are partly of
law and partly of fact
 Presumptions of law differ from presumptions of fact
in the following respects-
1) Presumptions of law derive their force from law,
while presumptions of fact derive their force from
logic; and though many of the former have intrinsic
logical weight, being indeed derived from the latter,
yet there are others which have none
PRESUMPTIONS IN
GENERAL (CONTD.)

2) A presumption of law applies to a class, the


conditions of which are fixed and uniform; a
presumption of fact applies to individual cases,
the conditions of which are inconstant and
fluctuating
3) Presumptions of law are drawn by the Court,
and in the absence of opposing evidence are
conclusive for the party in whose favour they
operate; presumptions of fact are drawn by the
jury, who may disregard them however cogent
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(SECTION 114)

 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
 The Court may presume-
(a) That a man who is in possession of stolen goods
soon after the theft is either the thief or has
received the goods knowing them to be stolen,
unless he can account for his possession;
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

(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
exists, 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;
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

(g) That evidence which could be and is not


produced would, if produced, be unfavorable to
the person who holds 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 unfavorable to him;
(i) That when a document creating an obligation is
in the hands of the obligor, the obligation has
been discharged;
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 But the court shall also have regard to such facts as the
following, in considering whether such maxims do or do
not apply to the particular case before it-
As to illustration (a):- A shop-keeper has in his till a
marked rupee soon after it was stolen, and cannot account
for its possession specifically, but is continually receiving
rupees in the course of his business;
As to illustration (b):- A, a person of the highest character
is tried for causing a man’s death by an act of negligence
in arranging certain machinery. B, a person of equally
good character, who also took part in the arrangement,
describes precisely what was done, and admits and
explains the common carelessness of A and himself;
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 As to illustration (b):- A crime is committed by several


persons. A, B and C, three of the criminals, are captured
on the spot and kept apart from each other. Each gives
an account of the crime implicating D, and the accounts
corroborate each other in such a manner as to render
previous concert highly improbable;
 As to illustration (c):- A, the drawer of a bill of exchange,
was a man of business. B, the acceptor, was young and
ignorant person, completely under A’s influence;
 As to illustration (d):- It is proved that a river ran in a
certain course five years ago, but it is known that there
have been floods since that time which might change its
course;
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 As to illustration (e):- A judicial Act, the


regularity of which is in question, was performed
under exceptional circumstances;
 As to illustration (f):- The question is, whether a
letter was received. It is shown to have been
posted, but the usual course of the post was
interrupted by disturbances;
 As to illustration (g):- A man refuses to produce a
document which would bear on a contract a small
importance on which he is sued, but which might
also injure the feelings and reputation of his
family;
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

 As to illustration (h):- A man refuses to answer a


question which is not compelled by law to
answer, but the answer to it might cause loss to
him in matters unconnected with the matter in
relation to which it is asked;
 As to illustration (i):- A bond is in possession of
the obligor, but the circumstances of the case are
such that he may have stolen it.

 A presumption is not evidence or proof. It only


shows on whom the burden of proof lies
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 This effect of this Section is to make it perfectly clear


that the Courts of Justice are to use their own common
sense and experience in judging of the effect of
particular facts, and that they are to subject to no
particular rules whatever on the subject
 It authorizes the Court to make certain presumptions of
fact. They are all presumptions which may naturally
arise, but the Legislature, by the use of the word “may”
instead of “shall” both in the body of the Section and in
the illustrations, shows that the Court is not compelled
to raise them but is to consider whether in all the
circumstances of the particular case they should be
raised
PRESUMPTIONS (CONTD.)

 Collector of Customs, Madras v. D. Bhoormall-


The law does not require the prosecution to
prove the impossible. All that it requires is the
establishment of such a degree of probability
that a prudent man may, on its basis, believe in
the existence of the fact in issue.
 Thus, legal proof is not necessarily perfect
proof; often it is nothing more than a prudent
man’s estimate as to the probabilities of the
case
PRESUMPTIONS (CONTD.)

 On the principle underlying S.106, Evidence Act, the


burden to establish those facts is cast on the person
concerned; and if he fails to establish or explain those
facts, an adverse inference of facts may arise against him,
which coupled with the presumptive evidence adduced by
the prosecution or the Department would rebut the initial
presumption of innocence in favour of that person and in
the result, prove him guilty
 The broad effect of the above principle underlying S.106
Evidence Act to cases under S.167(8) of the Act, is that the
Deptt. would be deemed to have discharged its burden if it
adduces only so much evidence, circumstantial or direct,
as is sufficient to raise a presumption in its favour with
regard to the existence of the facts sought to be proved
BIRTH DURING MARRIAGE CONCLUSIVE
PROOF OF LEGITIMACY (SECTION 112)

 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 it could have been begotten
 The 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
presumed
BIRTH DURING MARRIAGE
CONCLUSIVE PROOF OF LEGITIMACY
(CONTD.)

 Under this Section, the fact that any person was born-
a) During the continuance of a valid marriage between
his mother and any man, or
b) 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 the parties had no access to each other
at any time when he could have been begotten
 Evidence that child is born during wedlock is sufficient
to establish its legitimacy, and shifts the burden of
proof to the party seeking to establish the contrary
BIRTH DURING MARRIAGE
CONCLUSIVE PROOF OF
LEGITIMACY (CONTD.)

 The presumption under this Section is a conclusive


presumption of law which can be displaced only by
proof of non-access between the parties to the
marriage at a time when according to the ordinary
course of nature the husband could have been the
father of the child
 Access and non access connote existence and non-
existence of opportunities for marital intercourse
 Non access can be proved by evidence direct or
circumstantial though the proof of non-access must be
clear and satisfactory as the presumption of legitimacy
is highly favoured by law
PRESUMPTION AS TO ABETMENT OF
SUICIDE BY A MARRIED WOMAN
(SECTION 113A)

 When the question is whether the commission of suicide


by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had
committed suicide within a period of seven years from the
date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the
court may presume, having regard to all the other
circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband
 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 the conclusion whether
there was some extraneous cause for a woman to commit
suicide
PRESUMPTION AS TO ABETMENT OF
SUICIDE BY A MARRIED WOMAN
(CONTD.)

 The words “all 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 a
mandatory nature
PRESUMPTION AS TO ABETMENT OF
SUICIDE BY A MARRIED WOMAN (CONTD.)

 Hans Raj v. State of Haryana- Under Section 113A of the


Indian Evidence Act, the prosecution has first to establish
that the woman concerned committed suicide within a
period of seven years from the date of her marriage and
that her husband had subjected her to cruelty. Even if
these facts are established the court is not bound to
presume that the suicide had been abetted by her husband
 Section 113A gives a discretion to the Court to raise such
a presumption, having regard to all the other
circumstances of the case, which means that where the
allegation is of cruelty it must consider the nature of
cruelty to which the woman was subjected, having regard
to the meaning of the word “cruelty” in Section 498A
PRESUMPTION AS TO ABETMENT OF
SUICIDE BY A MARRIED WOMAN (CONTD.)

 The Parliament has chosen to sound a note of caution in


this regard-
 Firstly, the presumption is not mandatory, it is only
permissive as the employment of expression ‘may
presume’ suggest
 Secondly, the existence and availability of the required
circumstances shall not, like a formula, enable the
presumption being drawn ; before the presumption may
be drawn, the Court shall have to have regard to ‘all the
other circumstances of the case’
 In spite of a presumption having been raised the
evidence adduced in defence or the facts and
circumstances otherwise available on record may
destroy the presumption
PRESUMPTION AS TO DOWRY
DEATH (SECTION 113B)

 When the question is whether a person has


committed the dowry death of a woman and it is
shown that soon before her death such woman
has been subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the court shall presume that
such person had caused the dowry death
 If in case there is proof of the person having
intentionally caused her death, that would
attract S.302 of the Indian Penal Code
PRESUMPTION AS TO DOWRY
DEATH- WHEN MAY BE RAISED

 The presumption under Section 113B shall be raised


only on the proof of the following essentials-
1) The question before the Court must be whether the
accused has committed the dowry death of a woman.
This means that the presumption can be raised only if
the accused is being tried for the offence under
S.304B, IPC
2) The woman was subjected to cruelty or harassment by
her husband or his relatives
3) Such cruelty or harassment was for or in connection
with any demand for dowry
4) Such cruelty or harassment was taking place soon
before her death
EVIDENTIARY
PRESUMPTIONS
(CONTINUED)
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

 Kali Ram v. State of Himachal Pradesh- If a witness


professes to know about a gravely incriminating
circumstance against a person accused of the offence of
murder and the witness keeps silent for over two
months regarding the said incriminating circumstance
against the accused, his statement relating to the
incriminating circumstance in the absence of any cogent
reason is bound to lose most of its value
 One of the cardinal principles of criminal justice system
is that person arraigned as an accused is presumed to
be innocent unless that presumption is rebutted by the
prosecution by production of evidence as may show him
to be guilty of the offence of which he is charged
COURT MAY PRESUME
EXISTENCE OF CERTAIN
FACTS (CONTD.)

 There are certain cases in which statutory


presumptions arise regarding the guilt of the accused,
but the burden even in those cases is upon the
prosecution to prove the existence of facts which have
to be present before the presumption can be drawn
 The onus even in such cases upon the accused is not as
heavy as is normally upon the prosecution to prove the
guilt of the accused
 If some material is brought on the record consistent
with the innocence of the accused which may
reasonably be true, even though it is not positively
proved to be true, the accused would be entitled to
acquittal
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 Whether or not a presumption of fact under Section


114 can be drawn in a particular case depends
ultimately upon the facts and circumstances of each
case. No hard and fast rule can be laid down
 Another golden thread which runs through the web of
the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to
the accused should be adopted. This principle has a
special relevance in cases wherein the guilt of the
accused is sought to be established by circumstantial
evidence
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

 “I dare say some sentimentalists would assent


to the proposition that it is better that a
thousand or even a million guilty persons
should escape than that one innocent person
should suffer, but no responsible and practical
person would accept such a view. For it is
obvious that if our ratio is extended indefinitely,
there comes a point when the whole system of
justice has broken down and society is in a state
of chaos.”
-Glanville Williams (The Proof of Guilt)
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

 S.N. Bose v. State of Bihar- Under Section 114


of the Evidence Act, the Court is not bound to
draw any presumption of fact. It is within its
discretion to draw a presumption or not. But
under Section 4(1) of the Prevention of
Corruption Act, the Court is bound to draw the
presumption mentioned therein
 The presumption in question will hold good
unless the accused proves the contrary. In other
words, the burden of proving the contrary is
squarely placed on the accused
COURT MAY PRESUME EXISTENCE
OF CERTAIN FACTS (CONTD.)

 K.L. Rallaram v. Custodian, Evacuee Property, Bombay- A


Plaintiff, who says that he had sold certain goods to the
Defendant and that a promissory note was executed as
consideration for the goods and that he is in possession of
the relevant account books to show that he was in
possession of the goods sold and that the sale was effected
for a particular consideration, should produce the said
account books, for he is in possession of the same and the
Defendant certainly cannot be expected to produce his
documents
 In those circumstances, if such a relevant evidence is
withheld by the Plaintiff, Section 114 enables the Court to
draw a presumption to the effect, that if produced, the said
accounts will be unfavourable to the plaintiff
COURT MAY PRESUME
EXISTENCE OF CERTAIN FACTS
(CONTD.)

 Not merely can the Court base its


conclusion on the effect of the evidence
taken as a whole but it may also draw
adverse inferences against a party who
being in a position to adduce better
evidence deliberately abstains from doing
so

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