The word Presume
, according to grammar is verb
transitive and intransitive
both arid mean for granted, to take for granted, to assume beforehand. The
, is noun according to grammar and means supposition, a ground for
presuming, that which is supposed to be true without direct proof, the
conclusion or inference that a fact exists.
The term presumption
as - is a rule of law, statutory or judicial in its
largest and most comprehensive signification may be defined, where in the
absence of actual certainty of the truth of a fact or proposition, an inference
affirmative of that truth is drawn by a process of probable reasoning from
something which is taken for granted or proved.
According to Black's Law Dictionary a presumption
, is a rebuttable assumption
of fact, resulting from a rule of law which requires such fact to he assumed
from another factor group of facts found or otherwise established in the action
that need to be expressly proved.
The burden of proof deals with presumption. A presumption is not evidence in
itself. It is either rebuttable or conclusive.
Every rebuttable presumption is
S. 113-A. presumption as to abetment of suicide by a married woman (Presumption
- a presumption affecting the burden of producing evidence or
- a presumption affecting the burden of proof.
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.
It states that upon proof of the relevant facts predicate, a court in an
abetment of suicide case 'may presume, having regard to all the other
circumstances of the case,' that the victim's suicide was abetted by the
The use of the phrase 'may presume' in section 113-A signifies the presence of a
Section 4 presumption of fact. Presumptions of this kind reflect "those natural
inferences which the 'common course of natural events,' human conduct, and
public and private business suggest to us. Discretion has been given to the
Court to presume a fact or refuse to raise such a presumption.
If it refuses to exercise discretion, then it may call upon the parties to prove
the fact by leading evidence or if the Court finds that it is a fit case for
raising presumption, in that event, such fact stands proved unless and until it
is disproved by other side or may call for further proof of it.
In this respect, it is "permissive, optional and discretionary. The presumption
raised under Section 113-A does not necessarily shifts the burden of persuasion;
it necessarily shifts only the burden of going forward with evidence.
Presumption of fact requires a court, in the absence of evidence to the
contrary, to draw the conclusion specified in the statute. But, if evidence to
the contrary is presented, the presumption does not compel a particular result.
It is permissive in this respect. The function served by the presumption of fact
is this: it compels a party who might otherwise remain silent to speak. If the
party against whom the presumption is raised wishes not to have the point
decided against him, he must come forward with evidence.
Section 113 B: Presumption as to dowry death as to presumption of law:
Under Section 113B of Evidence Act, the legislature has chosen to use the
expression 'shall presume' is a presumption of law, which indicates that it is
mandatory and obligatory for the Court to draw the inference and no option is
left. But it is rebuttable, though at the same time it is not lightly to be
repelled. The evidence for the purpose of rebutting or repelling it must be
strong, distinct, satisfactory and of a conclusive nature.
As per section 4 of the Indian Evidence Act, whenever word conclusive proof is
used then it can be interpreted that, when one fact is declared by this Act to
be conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it. And thereby allocated burdens of persuasion in
prosecutions under section 304-B.
The Court is bound to take the fact of dowry death where it is shown that a
woman was subjected to cruelty in connection with demand of dowry before her
death as proved until very strong, cogent and positive evidence is given in
rebuttal by the accused, that the person has not committed dowry death.
Where the death of the wife was concurrently found to be unnatural viz. by
strangulation, and there was demand for dowry and also there was cruelty on the
part of the husband, the presumption under sec. 113B must be held to be rightly
drawn. (Hemchand vs. State of Haryana
AIR 1995 SC 120).
Burden of proof:
The concise Dictionary of Law, Oxford Paperbacks has defined 'burden of proof'
as- Burden of proof means the duty of a party to litigation to prove a fact or
facts in issue.
Generally the burden of proof falls upon the party who substantially asserts the
truth of a particular fact (the prosecution or the plaintiff). If distinction is
drawn between the persuasive (or legal) burden, which is carried by the party
who as a matter of law will lose the case if he fails to prove the fact in
issue; and the evidential burden (burden of adducing evidence), which is the
duty of showing that there is sufficient evidence to raise an issue fit for the
consideration of the Trier of fact, As to the existence or non-existence of a
fact in issue.
The responsibility to prove a thing is called burden of proof. When a person is
required to prove the existence or truthfulness of a fact, he is said to have
the burden of proving that fact.
In a case, many facts are alleged and they need to be proved, before, the Court
can base its judgment on such facts. The burden of proof is the obligation on a
party to establish such facts in issue or relevant facts in a case to the
required degree of certainty in order to prove its case.
Ram Gopal v State of Maharashtra (1972) 4 SCC 625:
Facts: The appellant Ram Gopal was charged with the murder of Zingrooji Sita
Ram. It was established that Sita Ram was poisoned and died on his way to the
hospital. The prosecution argued that Ram Gopal had administered the victim some
insecticide in kerosene oil either with tea or in water and it was a result of
the poisonous insecticide that Sita Ram died. The post-mortem report suspected
death by poisoning and a chemical analyst's report confirmed the presence of an
organo chloro compound in the viscera of the deceased. The prosecution argued
that the defendant's motive to murder Sita Ram was established by the fact that
prior to his death.
Sita Ram had sold a piece of land to Ram Gopal. However Ram Gopal had not paid him anything but had promised to pay the amount within six weeks of the
execution of the sale deed. Despite constant pestering, Ram Gopal kept putting off
Sita Ram on some pretext or the other.
The prosecution's case relied on the post-mortem chemical analysis
of the viscera which showed the presence of an organo-chloro compound. It argued
that the deceased had sickened and died after a visit to the accused.
Opportunity and the means of death had been established.
Ram Gopal was sentenced to death by the Sessions Judge Nagpur and this was
confirmed by the High Court of Bombay (Nagpur Bench). In appeal to the Supreme
Court against the death sentence the Apex Court stated that the prosecution's
case had too many gaps. There was no evidence to show that the accused was ever
in possession of any organo-chloro compound. It was improbable that such a large
dose of a kerosene-based poison that was fatal could have been consumed by the
victim without noticing it and other possibilities like suicide had not been
ruled out. This was sufficient to give the accused the benefit of doubt and the
Apex Court reversed the verdict of the lower courts.
The case is illustrative of
the need to keep in mind that not only must every fact be established along with
the mens rea required, but that the prosecution must be able to link the
sequence of events and rule out other probable causes for the occurrence. Here
the Supreme Court felt that there may have been other causes for the death of
the victim and therefore the beyond reasonable doubt degree of proof had not
Kali Ram v State of Himachal Pradesh AIR 1973 SC 2773:
Kali Ram was convicted of two murders. He appealed his conviction in the Supreme
Court. The prosecution's case rested on three pieces of evidence.
witness testified that Kali Ram had spent the night near the victims' residence,
and on the evening of the crime was seen heading toward the victims' house.
Second, the prosecution asserted that they had a written confession from Kali
Ram which he had mailed to the police station.
Third, the prosecution asserted
that Kali Ram made an oral confession to a witness. Noting that the accused was
entitled to the presumption of innocence requiring the prosecution to establish
guilt beyond a reasonable doubt, the Supreme Court reviewed the prosecution's
First, the Court concluded that the evidence that Kali Ram was headed toward the
victims' house on the night of the crime was unreliable because the testifying
witness had waited for over two months to come forward, despite knowing of the
incident, since the crime's occurrence. The Court found that the prosecution did
not offer a cogent explanation as to why the witness was silent for so long.
Second, the Court held that the prosecution had not verified the authenticity of
the letter of confession nor displaced the possibility that it could have been
fabricated. It was necessary for the prosecution to do that before the letter of
confession had evidentiary value. Third, the Court found the testimony of the
witness regarding the oral confession highly questionable, as the police had
hired this witness to testify. Having found all the prosecution's primary
evidence questionable, the Court reversed the conviction, explaining that the
prosecution did not rebut the accuser's presumption of innocence.
In Shamlal vs. State of Haryana: AIR 1997 SC 1830:
The Supreme Court had occasion to deal with sec. 113-B. It stated that it is
imperative, for invoking the presumption under sec. 113-B, to prove that 'soon
before her death' she was subjected to such cruelty or harassment.
the prosecution could only prove that there was persisting dispute between
the two sides regarding the dowry paid or to be paid, both in kind and in
cash, and on account of the failure to meet the demand for dowry, the wife
was taken by the parents to their house about one and a half years before
her death and further that an attempt was made to patch up between the two sides
for which a panchayat was held in which it was resolved that she would go back
to the nuptial home pursuant to which she was taken back by the husband in his
house about 10-15 days prior to the occurrence, but there was nothing on record
to show that she was either treated with cruelty or harassed with the demand for
dowry during the period between her having been taken to the parental home and
her death, it is not permissible to take recourse to the legal presumption under
Irrespective of the fact whether the accused has any direct
connection with the death or not, he shall be presumed to have committed dowry
death provided the ingredients of the section have been proved.
Gurbachan Singh vs. Satpal Singh
: 1990 Crl LJ 562 (SC),
the circumstantial evidence showed that the wife was compelled to take
the extreme step of committing suicide as the accused person had subjected
her to cruelty by constant taunts, maltreatment and also by alleging that she
had been carrying an illegitimate child. The suicide was committed within
seven years after the marriage. The Supreme Court held that presumption
under sec. 113-B could be drawn.
Written By: Kaustubh Singh