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PROJECT REPORT ON BURDEN

OF PROOF

Submitted to: Submitted by:

Dr.sabina salim Manjot Singh
UILS 261/15
7th semester
12700
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Acknowledgment
I would like to extend my humble gratitude to our teacher-in-charge of subject matter
Evidence Dr. Sabina Salim for her kind support and assistance throughout the making
of this project report.

Her guidance was of great help and thus I could learn more about this topic of Burden
of proof. Her efforts are worth appreciating and thus deserves all the respect.

Besides, I would also like to give credit to my family and friends who encouraged me in
completing this project report.

Last but not the least, I’m grateful to the Almighty Lord who blessed me with sound
health while continuing with this work.

- Manjot Singh Mathoda

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TABLE OF CONTENTS
SR NO TOPIC

1 INTRODUCTION

2 CASES

3 PLEA OF ALIBI

4 SEC 102 – ON WHOM BURDEN OF

PROOF LIES
5 SEC 103 – BURDEN OF PROOF AS TO
A PARTICULAR FACT
6 SEC 104 – BURDEN OF PROVING
FACT TO MAKE A AN EVIDENCE
ADMISSIBLE
7 SEC 105 – BURDEN OF PROVING
THAT CASE OF ACCUSED COMES
UNDER EXCEPTIONS
8 BURDEN OF PROVING DEFENCE

9 BURDEN OF PROVING FACT

ESPECIALLY WITHIN KNOWLEDGE

10 CASES
11 SEC 107 – PRESUMPTION OF
SURVIVORSHIP
12 SEC 108 - PRESUMPTION OF DEATH
13 SEC 112 - -BIRTH DURING
MARRIAGE, CONCLUSIVE PROOF
OF LEGITIMACY
13 SEC 113 - PROOF OF CESSATION OF
TERRITORY
14 SEC 113 A - PRESUMPTION AS OF
ABETMENT TO SUICIDE BY A
MARRIED WOMAN
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15 PRESUMPTION AS TO DOWRY
DEATH
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Introduction
The expression “burden of proof” is defined in section 101 in these words:
Sec 101. Burden of proof. - Whoever desires any Court to give judgement 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.

Comment. - The initial burden of proof lies on the party who substantially asserts the
affirmative of the issue and not upon the party who denies it. This rule of convenience has been
adopted in practice, not because it is impossible to prove or negative, but because the negative
does not admit of the direct and simple proof of which the affirmative is capable. The facts
which have to be proved in a case can, from the point of view of burden of proof, be put into
these categories.

A person who questions a gift deed on the ground of fraud has to prove that fact. (Krishna
Prasad v. Gopal Prasad1)

A suit for eviction of the tenant on the ground that he had materially impaired the building
would demand a proof of that fact on the part of the landlord. (B.Ramesh v. H.Nandeeshwari2)

The principle of the section is that a party who wishes the court to believe in the existence of a
fact and to pass a judgement on the basis of it, should have to prove that fact.

In State of Maharashtra v. Vasudeo Ramachandra Kaidalwar, 1981, the Hon’able Supreme

Court emphasised on the expression of burden of proof: (1) the legal burden i.e., burden of
establishing the gift (2) the evidential burden, i.e.,the burden of leading evidence.

In a criminal trial, the burden of proving everything essential to establish the charge against the
accused lies upon the prosecution, and that the burden never shifts. Notwithstanding the general

1
AIR 2001
2
AIR 2000
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rule that the burden of proof lies exclusively upon the prosecution, in the case of certain
offences, the burden of proving a particular fact in issue may be laid by the law on the accused.
The burden resting on the accused in such cases is, however not so onerous as that which lies
on the prosecution.

Criminal Cases. - The initial burden lies on the prosecution to prove that the accused is guilty
of the crime with which he is charged. The Court starts with the presumption that the accused
is innocent. The innocence of the accused means nothing more than this that burden lies on the
prosecution to prove the case beyond reasonable doubt. (Gandap Bhimanna v. The State of
Hyderabad 1956).

It is for the prosecution to determine what witnesses it should call upon in support of its case.
Prosecution cannot succeed just by showing that the defence raised is suspicious. In Jagdish v.
State of Rajasthan3 where the Prosecution could not explain injuries on the person of the
accused which would cost at the time of the occurrence.

Mere suspicion, however strong it may be, cannot take the place of proof-it was held in the
case of State of Punjab v. Bhajan Singh4.

Where the prosecution could not prove beyond reasonable doubt that the accused was
connected with the destruction of a film, the accused was given the benefit of doubt. Even the
total silence of the accused as to any defence on his part does not lightens the prosecution
burden to prove its case satisfactorily. (Bhishandas v. State of Punjab5)

Courts dealing with the criminal cases at least should constantly remember that there is a long
mental distance between maybe true and must be true and this golden rule only helps to
maintain the vital distinction between conjunctures and sure conclusions to be arrived at by the
touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive
appreciation of all features of the case as well as quality and credibility of the evidence brought
on the record.

3
AIR 1979 SC 1010
4
AIR 1975
5
AIR 1975 SC 573
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As against this heavy burden on the prosecution the accused can claim the benefit of His
defence just by showing a balance of probabilities. He has not to prove his defence beyond a
reasonable doubt. The prosecution proved in a case that an official had accepted a sum of
money which was intended to be a bribe. The Supreme Court said that the accused must prove
his justification and he can do so on balance of probabilities and need not prove beyond
reasonable doubt. (M.P. Gupta v. State of Rajasthan6)

Plea of alibi. - Where the accused raises the plea of alibi (his presence elsewhere) burden lies
on him to substantiate that fact at least to the extent of reasonable probability. The Court cited
the decision of the Supreme Court in Soma Bhai v. State of Gujarat AIR 1975 SC1453 where
it was taken to be a settled law that a plea of alibi has got to be proved to the satisfaction of the
court.

In Dudh Nath Pandey v. State of Uttar Pradesh7 the court held that the plea of alibi can succeed
only if it is shown that the accused was so far at the relevant time that he could not be present
at the place where the crime in question was committed.

Putting burden on wrong party. - In Rangammal v. Kuppuswami8, The Supreme Court held that
it would witty eight then tire judgement, once burden of proof is put on the shoulders of the
wrong party.

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.

Comment. - The section tries to locate the party on whom the burden of proof lies. The burden
of proof lies upon the party who is case would feel if no evidence was given on either side. If
A sues B to recover damages for breach of contract and if neither party gives evidence, A would
lose his case. Therefore, burden lies upon A to prove that there was a contract between him and
B, which B has broken. If B admits to the contract, but says that his consent was caused by
fraud and if neither party gives evidence B’s case would fail and therefore burden lies upon B
to prove the fraud.

6
AIR 1974 SC773
7
AIR 1981 SC 911
8
AIR 2011 SC 2344
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The burden of proof lies on the party, whether the plaintiff or defendant, who substantially
asserts the affirmative of the issue. This rule, derived from the maxim of Roman law, ei qui
affirmat, non ei qui negat, incumbit probatio, is adopted partly because it is just that he who
invokes the aid of the law should be the first to prove his case; and partly because, in the nature
of things, a negative is more difficult to establish than an affirmative.

In the offence of rape, the accused where resident of the same village the accused confessed to
his crime in the presence of his parents and others. The accused contended that the confession
was octane from him by exercising pressure. It was held that the onus was on him to prove that
the confession was obtained by exercising coercion or inducement. This was held in the case
of Krishna S. v. State, 1998 Cri LJ 785
In State of H.P. v. Shree Kant Shekari AIR 2004, the Supreme Court held that the burden of
proving the consent in a rape case is on the accused. It is not for the prosecutrix to show that
there was no consent instead the accused needs to show that she did consent.

In Bhagwan Das v. Municipal Corporation of Delhi9, it was held that Where the government
totally prohibit certain kind of trade, it would be for the government or the authority concerned
to show that the prohibition is in the nature of reasonable restriction on trade liberty. Ordinarily,
however, burden of proof is on the party who challenges the constitutional validity of an Act
or Rule.

Sec 103. Burden of proof as to particular fact. - The burden of proof as to any particular fact
lies on that person who wishes the court in its existence unless it is provided by any law that
the proof of that fact shall lie on any particular person.

Comment. - This section amplifies the general rule laid down in section 101. This section
provides for the proof of some one particular fact.

Illustration. - A prosecutes B for theft and wishes the Court to believe that be admitted that
there to see. A must prove the admission. While if B wishes the Court to believe that at the
time of theft he was elsewhere, he must prove it. The illustration sufficiently points the

9
AIR 1995
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meaning. All the facts, however, numerous and complicated, which go to make up the accused
guilty, must be proved by the prosecution. If the accused wishes to prove any particular fact,
his alibi for instance, he must prove it accordingly.

In a case Wakelin v. London & South Western Rly Co., 1886 before the House of Lords arising
under the Fatal Accidents Act, 1846 it was alleged that the plaintiff’s husband had met his
death owing to the negligence of the railway company. The only evidence of it was that the
body was found lying by the side of the railway line near level crossing. It was held that this
was not sufficient and the plaintiff must prove positively that the death in question was due to
defendant’s negligence. LORD HALABURY said: “In this case I am unable to see any
evidence of how this unfortunate calamity occurred. One may surmise, and it is but surmise
and not evidence, that the unfortunate man was knocked down by a passing train while on the
level crossing; but assuming in the plaintiff’s favour that fact to be established, is there anything
to show that the train ran over the man rather than that man ran against the train? “

In Mewa Devi v. Ram Prakash10 the owner of a motor lorry which killed two persons raised
the defence that the cause of the accident was the mechanical failure of brakes and the steering
wheel. It was held that the burden was upon him to prove these particular facts and also the
fact that he had been exercising reasonable care and caution in maintaining the lorry in the
roadworthy condition.

A married woman was driven out of the matrimonial home by treatment. She filed a case to
recover her jewellery and other articles. Her in-laws contended that she had taken them away.
The court said that there would be no presumption that she had done so. The burden was upon
the in-laws to prove that fact. This was held in Kamini v. Puran Chandra11.

Sec 104. Burden of proving fact to be proved to make evidence admissible. -

The burden of proving any fact to be proof in order to enable any person to give evidence of
any other fact is on the person who wishes to give such evidence.

10
AIR 1990
11
AIR 1987
 P a g e | 10

Comment. - Whenever it is necessary to prove any fact, in order to render evidence of any
other fact admissible, the burden of proving that fact is on the person who wants to give such
evidence.

Illustration. -A wishes to prove a dying declaration by B. A must prove B’s death. Similarly,
if a party wants to prove the secondary evidence of document he must prove that the original
has been lost or destroyed or that the case is within any of the exception in which the secondary
evidence can be given.

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 or with 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.

Comment. -In criminal cases the burden of proof, using the phrase in its strictest sense, is
always upon the prosecution and never shifts whatever the evidence maybe during the progress
of the case. When sufficient proof of the commission of a crime has been adduced and the
accused has been connected there with as the guilty party, then the burden of proof, in another
and quite a different sense, namely in the sense of introducing evidence in rebuttal of the case
for the prosecution is laid up on him. (Bai Ramilaben v. State of Gujarat 1991).

The general principles relating to burden of proof in criminal cases are one, that the Court
presumes that the accused is innocent and therefore, prosecution must prove that he is guilty,
and second, that once the prosecution has proved beyond reasonable doubt that the accused is
guilty and he takes any defence, such as, insanity, the burden of proving that fact lies on him.
This is what section 105 provides.

The onus of establishing an exception shifts to the accused when he pleads an exception. In
Subodh Tiwari v. State of Assam 1998, it was held that the Court never presumes the existence
of the circumstances which entitle the accused to his defence. This onus can be discharged
either by affirmatively establishing the plea taken by an accused person or by eliciting such
circumstances which would create a doubt in the mind of the court that the reasonable
 P a g e | 11

possibility of the accused acting within the protection of the exception pleaded is not
eliminated. (Babu lal v. State of Uttar Pradesh12).

In case of Brindaban Prasad v. State of Bihar13, it was held that if on a consideration of the
evidence as a whole reasonable doubt is created in the mind of the court as to the guilt of the
accused he would be entitled to acquittal.

The burden of accused to prove his defence stands discharged by showing preponderance of
probability in his favour. (Rizam v. State of Chattisgarh, 2003)

In the English case of Queen-Emperor v. Timmal,1898 an accused person who at his trial had
not pleaded the right of private defence, bult had raised other inconsistent with such a defence,
cannot in the case, founded upon the evidence trial, that he acted in the exercise of the right of
the private defence; neither is the Court competent to raise such a plea on the behalf of the
appellant.

In another case before the Supreme Court Sharad v. State of Maharashtra a newly married girl
died of poisoning: strong dose of potassium cyanide. In a short span of only four months of
married life she was ill treated by her husband and in-laws. It was shown in the defence that
she was very sensitive and awkward. They were allowed the benefit of the probability of
suicide. When there is no reliable evidence in support of the prosecution case and where the
responsibility arises only out of the plea raised by the accused, the court can convict him only
if the plea amounts to a confession of the guilt, but if the plea only amounts to an admission of
facts and raises a plea of justification Court cannot proceed to deal with the case as if the
admission of facts which was not part of the prosecution case was true and the evidence did
not warrant the plea of justification.

Where some of the accused were acquitted giving them the benefit of doubt to the maximum
possible extent because the statements of the prosecution witness did not corroborate each other
in reference to them, the Supreme Court in Pattad Amarappa v. State of Karnataka held that it

12
AIR 1960
13
AIR 1964
 P a g e | 12

was wrong for that reason to have acquitted all the accused by rejecting the testimony of the
witnesses in its entirety.

Presumption of innocence. - Every person accused of a crime is always presumed to be

innocent, so that burden lies upon the prosecution to establish beyond a reasonable doubt that
all the ingredients of the offence which the accused has been charged with our just. There for
prosecution has to prove every ingredient in the crime. The decision of the House of Lords in
Woolmington v. Director of Public Prosecution14 is the leading pronouncement. Their
lordships pointed out that the prosecution has not merely to prove that the accused has caused
the death and ask the court to presume that it was murder: they must prove every ingredient
that makes the killing of murder. It is not for the accused to establish his innocence but for the
prosecution to establish his guilt.
LORD SANKEY laid down: “Throughout the web of the English criminal law one Golden
thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt,
subject to the defence of insanity and subject also to any statutory exception. If, at the end of
the whole of the case, there is reasonable doubt, created by the evidence given either by the
prosecution, as to whether the prisoner killed the deceased with a malicious intention, the
prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter
what the charge or where the trial, the principle that the prosecution must prove the guilt is part
of the common law of England and no attempt to whittle it down can be entertained.”

Burden of proving defence. - Section 105 clearly cast the burden of proving a difference or
any of the exceptions upon the accused. Everybody is presumed to intend the natural
consequences of his conduct. The underlying principles have been restated by the Supreme
Court in the Dayabhai v. State of Gujarat AIR15: “ the doctrine of burden of proof in the context
of the plea of insanity may be stated in the following propositions : (1) The prosecution must
prove beyond reasonable doubt that the accused has committed the offence with the requisite
mens rea : and the burden of proving that always rest on the prosecution from the beginning to
the end of the trial; (2) There is a rebuttal presumption that the accused was not insane when
he committed the crime: the accused may rebut it by placing before the Court all the relevant
evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher

14
AIR 1936
15
1964 SC1563
 P a g e | 13

than that which rest upon a party to civil proceedings; (3) even if the accused was not able to
establish conclusively that he was in same at the time when he committed the offence, the
evidence placed before the court may raise reasonable doubt in the mind of the court as regards
one or more of the ingredients of the offence, included mens rea and in that case the court
would be entitled to acquit the accused. “

In case of Elavarasm v. State16, A person had Leslie killed his child and injured his wife and
mother. He was working as a government servant. Witnesses were produced from his office
side as well at home. But none were able to testify to his being mentally unwell. Thus the
defence of insanity was held to be not proved.
Though the onus to prove unsoundness of mind is on the accused, he is not required to prove
the same beyond all the reasonable doubts but merely satisfy the preponderance of
probabilities.

In reference to the burden that lies only accused to prove his defence, the Supreme Court laid
down certain principles, which were restated by FAZAL ALI in Rabindra Kumar Dey v. State
of Orissa17: “the accused in this case was prosecuted under the Prevention of Corruption
Act,1947, for keeping the Government money with him for the period of six months. His
explanation was that he was given the money for the purpose of distributing it among villagers
whose land has been acquired. The villagers did not accept the money in protest. Efforts were
afoot to persuade them to except and, in order to avoid repeated formalities of deposit and
withdrawal he did not pay back the money into the Treasury. His explanation was rejected. His
conviction was opposed by the High Court. But own appeal to Supreme Court, he was
acquitted. “
The restated main principles included

1. that the onus lies affirmatively on the prosecution to prove its case beyond reasonable
doubt and it cannot drive any benefit from weakness or falsity of the defence version
white proving its case;
2. that in a criminal trial the accused must be presumed to be innocent unless he is proved
to be guilty; and

16
AIR 2011 SC 2816
17
AIR 1976 4 SCC 233
 P a g e | 14

3. that the onus of the prosecution never shifts.

Sec 106. Burden of proving fact especially within the knowledge. -When any fact is
especially within the knowledge of any person, the burden of proving that fat is upon him.

Comment. - This section applies only two parties to a suit. This section does not cast anybody
on any accused person to prove that no crime was committed by proving facts specially within
his knowledge; nor does it warrant the conclusion that if anything is unexplained which the
Court thinks the accused could explain, he ought therefore to be found guilty.

It does not affect the onus of proving the guilt of the accused. That onus rests on the prosecution
and is not shifted on the accused by reason of this section. (Crown v. Santa Singh 1945).

In case of Sh. Gulab Chand Dhot v. Sh. P.N. Aggarwal18 it was held that where there was a
question of identity of vehicle involved in the accident, the burden of proof was on the claimant
and his failure in this respect would not shift the burden on the opening to prove the negative.
The burden of proving go to face lies upon the party who alleges it.

Cases
In case of the Secretary of State for India in Council v. Dwarka Prasad 1927 in this case a suit
was against a railway company based on the allegation that certain property belonging to the
plaintiff being at the time near the railway line, had been destroyed by the reason of sparks
flying from the engine, it was held that it was on the railway company to show that they had
taken proper precautions to avoid damage to property adjacent to the line by reason of sparks
from engines.

Where the corpus delicti (dead body) was not found but there was the direct evidence of the
eye witnesses that the victim was killed by the accused persons before they took away the dead
body. No explanation was offered by the accused persons as to what they had done with the
dead body. The court therefore said that they could be convicted by drawing the presumption

18
AIR 1994
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that they had a reason to cause disappearance of the dead body and that the reason have been
that the death which was caused by them. This was drawn from the case of Ram Gulam
Chaudhary v. State of Bihar, 2001.

Where the prosecution proved that there was a strong motive for the crime, that the deceased
woman was last seen alive in the company of the accused and that the death was unnatural and
homicidal, it was held that the burden to account for the circumstances of the death was shifted
to the person in whose care the woman met her death. As he alone must be in possession of the
knowledge of those circumstances which caused death. This was held by Punjab and Haryana
High Court in the case of Amarjit Singh v. State of Punjab 1989.

In State of Maharashtra v. Shivaji Anandrao, 2002 there was proof that the accused husband
ill-treated his wife. His presence at the place of occurrence was also proved. His wife was last
seen his in his company. The accused had sustained nail injuries. He made an admission in his
explanation of his injuries. The court said that this could be taken into consideration to convict
him. Each and every circumstance were pointing the accused to be guilty for murder.

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 with 30
years, the burden of proving that he is dead is on the person who affirms it.

Sec 108. Burden Of proving that a 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.

Comment. - 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.

There is no presumption in law that a person was alive for seven years from the time when he
was last heard of. The sections deal with the procedure to be followed when a question is raised
before the court, as to whether a person is alive or dead, but do not laid down any presumption
as to how long a man was alive or what time he died.
 P a g e | 16

Assuming that the court could make a presumption that the person was alive for seven years
after he was last heard of, it depends on the circumstances of each case, whether the court could
draw such a presumption or not. (Veeramma v. Chenna Reddi,19)

Presumption of survivorship- Burden of proving death (Section 107).- This section provides
that if it appears that a person, whose present existence is in question, was alive with 30 years,
and nothing whatever appears to suggest the probability of his to be dead, the court is bound to
regard the fact of his still being alive as proved.

Dealing with the facts of the case the Supreme Court observed that in the view of the fact that
Sardul Singh was alive on May 24, 1960, it shall be presumed that he was not dead on May 24,
1970. The appellant has alleged that Sardul Singh was dead on that day. The onus to prove that
fact shall be on him. The presumption is not a very strong one. It may be rebutted even by a
slightest evidence to the contrary, for example, seven years absence. The court may not act
upon it until positive prove of the person being still alive is offered.

In R. v. Lumley20: the prisoner, a woman, was prosecuted for bigamy. She married a man in
1836, left him after seven years in 1843 and married another in 1847. Nothing was heard of her
first husband after she left him. The prosecution gave no evidence of his age, or of the fact that
he was still alive. But even so the judge felt that because he was alive just four years before the
marriage, there was the presumption that he was still alive and consequently the Presnall was
convicted. But on appeal the conviction was quashed. LUSH J., Who delivered the judgement
of the court, laid down: “In an indictment for bigamy, it is incumbent on the prosecution to
prove that the husband or the wife, as the case may be, was alive at the date of the second
marriage. This is purely a question of fact. The existence of a party at an antecedent date may,
or may not, afford a reasonable inference that he is living at the subsequent date. If, for
example, it was proved that he was in good health on the day preceding the marriage, the
inference would be strong, almost irresistible, that he was living on the later day but if, on the
other hand, it was proved that he was then in a dying condition, and nothing further was proved,
the court would probably refuse to draw that inference. The question is entirely a question of
fact. The law makes no presumption either way. “

19
1021 37 Mad 440
20
AIR 1869
 P a g e | 17

In Surjit Singh v. Jhujhar Singh21 where A person was known to be a live up to 1960, the Punjab
and Haryana High Court held that it must be presumed that he would be live up to 30 years
from that date. If his wife wanted to remarry, she must prove that he is no longer alive or has
remained unheard of for seven years. All that she was able to show what is that two of their
relatives knew that he had gone to Indonesia and more than seven years had passed and he had
neither written any letter nor otherwise heard of by anybody since then. This was held to be
not sufficient to create the presumption of death. Her marriage was declared to be void.

Certificate of death issued on the basis of this presumption, is liable to be cancelled on husband
appearing this was held in the case of N. Prem Ananthi v. Tahsildar, Coimbatore22.

Presumption of death (Section 108). - If a person has not been heard of for seven years, there
is a presumption of law that he is dead, and the burden of proving that he is alive is shifted to
the other side.

Section 108 materially qualifies the operation and effect of presumption raised by section 107.
The essence of the section is that if a person is not heard of for seven years, the presumption is
that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus,
seven years absence creates a rebuttal presumption of death.

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
280 days after its resolution, 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 has
no access to each other at any time when he could have been begotten.

Presumption of legitimacy. - An illustration of a conclusive presumption of law is to be found

in the provisions of section 112. It deals with the presumption of the legitimacy of a child. The
effect of the provision is that a child born to a married parent is conclusively presumed to be

21
AIR 1980
22
AIR 1989 Mad 249
 P a g e | 18

their child. The same presumption arises where the marriage was dissolved and the child was
born within 280 days after the resolution, the mother remaining unmarried in the meantime.

The essential conditions for the presumption to arise are:

1. The child should have been born during the continuance of a valid marriage, or is the
marriage was dissolved, within to80 days after its resolution, the mother remaining
unmarried.
2. The parties to the marriage should have had access to each other at any time when the
child could have been begotten.

During the subsistence of valid marriage. - Both these requirements are fully satisfied by the
very fact of marriage and of living together. When a child is born in wedlock, there is a
presumption in favour of its legitimacy.

As legitimacy involves sexual intercourse between husband and wife, there is therefore, a
presumption when a child is conceived and born during the marriage that such intercourse took
place at a time when according to the laws of nature, the husband could be the father of the
child.

A woman cohabited with the deceased for 33 years and was also recognised by neighbours as
his wife. Voter list, bank accounts carried her name as that of wife. She was also addressed
with his surname. The fact of the adopted son was acknowledged in letters. The Supreme Court
said that the presumption of marriage raised on such facts was just and legal therefore it could
not be disturbed under Article 136 of the Constitution. This was observed in Kardela
Parthsardhi v. Gangula Ramanamma23.

Access to each other. - The decision of the Madras High Court in Sethu v. Palani, I.L.R. 1925
is an illustration in. the woman was married to S in October 1903. She was divorced by him in
June 1904. She married another man, T, in July 1904 and gave birth to a son in September 1904
therefore, the conception was formed when she was the wife of one and birth took place when
she was wife of another. The child was held to be the legitimate child of the second husband,

23
AIR 2015 SC 891
 P a g e | 19

the court relying upon the fact that no proof was available of the fact that T did not have access
to her even when she was the wife of S. On the contrary., The evidence showed that T was
carrying on an intrigue with the woman at the time when the child could have been begotten.
Thus, the marriage of the mother to one person is not considered to be a proof of the lack of
access to any other person. The court concluded: if a man marries a woman not knowing that
she is pregnant, he could, by showing that he did not have had access to the woman when the
pregnancy commenced, make out that the child is not his. But if a person knowing that that the
woman is pregnant marries her, the child of the woman though born immediately after the
marriage becomes the legitimate child of that man unless the man proves that he had no access
to the woman when he could have been begotten.

The Supreme Court considered the meaning of the word “access” in Kamti Devi v. Poshi Ram
AIR 2001. Sam High Court held that the word access means actual sexual intercourse between
the spouses. How are ever, the controversy came to a rest when the Privy Council held in
Karapaya Servai v. Mayandi AIR 1934, that the word access connotes only existence of
opportunity for marital intercourse.

In Ramroop Rathore v. Rajkumari AIR 2009, The presumption under section 112 was not
dispelled as the husband could not prove that there was no consummation with the wife who
left her husband after 8 days of marriage, and had a child from another man.

DNA test for Parental Responsibility. -

The woman claimed maintenance from her husband for herself and her child. The husband
denied relationship and resorted to wild allegations about her moral character. The court
allowed her prayer for DNA test. (Maya Ram v. Kamla Devi AIR 2008)

In reference to the scientific test, such as a DNA for the purpose of collecting evidence, the
Delhi High Court in Kanchan Bedi v. Gurpreet Singh AIR 2003 held that no party to legal
proceeding can be subjected, on the mail asking of the opposite party, to any such test against
his or her will. It infringes his or her right to privacy.

In Chinta Madhu Sadhana Rao v Chinta Naga Lakshmi AIR 2015 DNA test is not to be directed
as a matter of routine. It is only in deserving cases that such a direction can be given. The court
did not a direct DNA test offer claimant to the property of a deceased person only because one
 P a g e | 20

of her brothers was saying that she was the daughter of their fathers’ brother. The Supreme
Court further said in this case that the conclusive presumption under the section cannot be
undone through the process of DNA test. There must be proof of non-access during the relevant
period.

In Narinder Kumar v. Tej Ram AIR 2016 DNA test considered to be necessary for saving the
child from being regarded as illegitimate.

In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik24 held that, The DNA test should be
resorted to, only if it is eminently needed. The Supreme Court has held that the DNA test
prevails over the presumption of conclusive proof under section 112. In a claim for
maintenance, the DNA test showed that the claimant’s daughter was not her father is biological
daughter. Non-access to wife became is stabs list. Thus, he could not be compelled to bear the
fatherhood of a daughter who is not scientifically his and asked to maintain her.

In Kamalanantha v. State of Tamil Nadu25 the experts who handled the DNA test on a dead
foetus to establish paternity in the rape cases gave a positive report. It was a concurrent finding
of exports. Allegations of contamination were considered and rejected.

Sec 113. Proof of cessation of territory. - Notification in the official gazatte that any portion
of British territory has before the commencement of part three of the Government of India Act,
1935 been seeded to any Native State, Prince, or Ruler, shall be conclusive proof that are valid
cession of such territory took place at the date mentioned in such notification.

Comment. -A government notification as to cession of territory to any other state is the

conclusive proof that are valid cession to such territory has taken place at the date mentioned
in such notification.

Presumption. - When the Court presume the existence of a fact that is known as a presumption.
The effect of a presumption is that a party in whose favour of factors presumed is relieved of

24
AIR 2014 SC 932
25
AIR 2005 5 SCC 2132
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initial burden of proof. The court presume the existence of the fact in his favour and may act
on it unless the contrary is shown.

Presumptions are either of law or fact. Presumption of law are arbitrary consequences expressly
annexed by law to particular facts; and may be either conclusive, as that a child under a certain
age is incapable of committing any crime; or rebuttle, as that a person not heard of for seven
years is dead, or a bill of exchange has been given for value. Presumptions are the result of
human experience and reason as applied to the cause of nature and the ordinary flow of life. If
a man and woman or find a loan in suspicious circumstances the law presumes that they were
not there to say their prayers and divorce laws would take this as evidence of adultery.
Presumptions of fact or inferences which the mind naturally and logically draw from the given
facts, irrespective of the legal effect. Not only are they always rebuttable, but either the trier of
fact male fuse to make the usual or natural inferences notwithstanding that there is no rebutting
evidence.

In Avtar Singh v. State of Punjab26, bags of poppy husk seized from vehicle, no presumption
that the person driving the vehicle was in possession of those bags.

Presumptions and Burden of proof

VENKATRAMIAH J., of the Supreme Court in the case of Sodhi Transport Co. v. State of
U.P. 1986 2 S.C.C. 486 observed:” A presumption is not in itself evidence but only makes a
prima facie case for a party in whose favour it exists. It indicates the person on whom the
burden of proof lies. When presumption is conclusive, it obviates the production of any other
evidence. But when it is rebbutable it only points out the party on whom lies the duty of going
forward with the evidence on the fact presumed and when that party has produced the evidence
fairly and reasonably tending to show that the real fact is not as presumed, the purpose of
presumption is over. “
Section 4. “May Presume”. - Whenever it is provided by this Act that the Court may presume
a fact, it may either regard such fact as proved, until and unless it is disproved, or may call for
proof of it:
“Shall presume”. - Whenever it is directed by this Act that the court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.

26
AIR 2002 SC 3343
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“Conclusive proof”. - When one fact is declared by this Act to be conclusive proof of another,
the Court shall, on proof of the one fact, regards the other is proved, and shall not allow
evidence to be given for the purpose of disproving it.

The first two parts of section 4 deal with presumption of fact. The first gives the court the
discretionary power to presume the existence of fact, that is to say, that the Court may regard
the fact as proved unless disproved.

Where a doctor gave an injection for determination of pregnancy which resulted in miscarriage
and death of the woman, it was held that the doctor could be presumed to know the side-effects
of the medicine as doctors are generally informed of such effects by the manufacturers of the
medicines. [Akhil Kumar(dr.) v. State, 1992]

Sec 113-A. Presumption as to abetment of suicide by a married woman.- When the

question is whether the commission of suicide by a woman had been abetted by her husband
or any relative of her husband and it is shown that she had committed suicide within a period
of seven years from the date of your marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may presume, having regard to all other
circumstances of the case, that such suicide had been abetted by her husband or by such relative
of her husband.

Explanation. - For the purposes of this section, ‘cruelty’ shall have the same meaning as in
section 498A of the Indian Penal Code.

Comment. - The word is having regard to all other circumstances of the case in this section
give wide powers to the “to appraise evidence and come to conclusion whether there was some
extraneous cause for a woman to commit suicide.

The drinking habit of a husband along with late coming and beating his wife was held to be a
cruelty for the purpose of the presumption under this section. For raising the presumption of
abetment of suicide under section113A it must be established that a woman had committed
suicide. (Suresh Raghunath Kochare v. State of Maharashtra 1992).
 P a g e | 23

Where the demand for outstanding items of dowry was met and matter was settled and there
was no evidence of any for the dowry demand or tortured thereafter, but the wife committed
suicide 1.5 months after the demand was met and the matter settled, it was held that the
probability of existence of nexus between cruelty and suicide suffered a setback and it was
unsafe and unjust to invoke presumption of guilt against the accused.(Samir Samanta v.
State,1993)

The wife died by consuming poison. Oral and documentary evidence showed that the accused
has been subjected her to mental cruelty. Her letters showed that he dominated and was treating
her like a chattel. The court said that the conduct of the accused was of such a nature as was
likely to drive his wife to commit suicide. Thus, he abetted suicide. The presumption under the
section prevailed.

Where unmarried woman had committed suicide within one year of her marriage and from the
circumstantial evidence it was established that there was no cruelty or harassment and torture
of the deceased by the accused husband and in-laws for the greed of dowry, presumption under
section 113A was not made.

Retrospective application. - The section embodies a rule of evidence. It would, therefore, also
apply to incidents prior to its enforcement date, i.e., Dec 25,1983. The section is procedural in
nature. It would, therefore, have retrospective operation.

The provisions of the section are applicable to the pre-amendment cases also. In the words of
SABHYASACHI MUKHERJI, of the Supreme Court in the case of Gurbachan Singh v. Satpal
Singh27 observed: “These provisions do not create any new offence, or any substantive right,
but merely a matter of procedure and as such are retrospective an applicable to the present
case.” The presumption against retrospection does not apply to legislation concerned merely
with matters of procedure or of evidence; on the contrary, the provisions of that nature are to
be construed as retrospective unless there is a clear indication that such was not the intention
of Parliament.”

27
AIR 1990 SC 209
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Sec 113-B. Presumption as to dowry death. -When the question is whether a person has
committed dowry death of a woman and it is shown that soon before her that 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.

In Durga Prasad v. State of M.P.28, the Supreme Court held that the cruelty or harassment soon
before death must be proved in relation to demand of dowry. The accused was alleged to have
driven his wife to commit suicide by subjecting her to cruelty. He was prosecuted for
demanding dowry and committing cruelty and harassment in connection with dowry demand.
In this case except for the statement made by the mother and the brother of the deceased no
other evidence was adduced by prosecution to prove such demand and harassment for demand
of dowry by the accused. The prosecution has thus failed to satisfy the requirements of section
304B, IPC and section 113B of Evidence Act. Therefore, the accused was acquitted.

The doctor attending on the injured woman testified that her neighbours brought her to the
hospital and no relative accompanied her; that she was in a serious condition and that on
questioning her she told him that the mother-in-law had burnt her. This was held to be a good
evidence though the doctor did not record it in the medical register. Nothing could be brought
in the cross-examination that he was interested witness. (Krishan Lal v. State of Haryana, AIR
1980 SC 1252)

In Keshab Chandra v. State of Orissa 1995 the essentials for section 113B were raised:

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 section 304B IPC.

28
AIR 2010
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2. The woman was subjected to cruelty or harassment by her husband or any of his
relatives.
3. Such cruelty or harassment was fall, or in connection with any demand for dowry.
4. Such cruelty or harassment was taking place soon before her death.

The provisions of this section, although mandatory nature, simply enjoined upon the court to
draw such presumption of dowry death on proof of circumstances mentioned therein which
amount to shifting the onus on the accused to show that the married woman was not ill-treated
soon before her death in connection with dowry by her husband or any of his relatives. In a
dowry death case, it is a condition precedent to the raising of the presumption that the deceased
married woman was subjected to cruelty or harassment.

Where the facts showed the continuous harassment in connection with demand for dowry it
could be assumed that the harassment existed up to the time soon before her death too.
 P a g e | 26

Bibliography
1. Rattan lal, Dhiraj lal: law of evidence (1994).
2. Avtar singh, Principles of law of evidence (2008) Central Law
Agency, New Delhi.
3. Ameer Ali and Woodroffe- law of evidence, butterworths 18th
edition (2009).
4. The Indian Evidence Act, 1872.