SUBMITTED BY- SIDHANT SURI

ROLL NUMBER- 286/16

VIIth SEMESTER
B.COM LLB
SECTION D
LAW OF
EVIDENCE
PROJECT
TOPIC- PRESUMPTION
 INDEX

S.NO PARTICULARS PAGE

NUMBER
1. ACKNOWLEDGEMENT 1.

2. INTRODUCTION 2.

3. SECTION 107 2.

4. SECTION 108 3.

5. SECTION 109 4.

6. SECTION 110 5.

7. SECTION 111 5.

8. SECTION 111-A 6.

9. SECTION 112 6.

10. SECTION 113 7.

11. SECTION 114 8.

12. SECTION 114-A 15.

 ACKNOWLEDGEMENT

I would like to take this opportunity to thank my teacher for her invaluable support,
guidance and advice. I would also like to thank my friends who have always been
there to support me and the library staffs for working long hours to facilitate me
with required materials going a long way in quenching my thirst for education. Last
but not the least, my parents, who made me able to be here and complete my work.
 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.

Presumption of Survivorship or Burden of Proving Death [S. 107]

There is a general presumption of continuity of things. Once a thing is shown to

exist, the law presumes that it continues to exist until the contrary is shown. This
applies to continuity of life also. Section 107 accordingly provides that when a
person is shown to have existed within the last thirty years, the presumption is that
he is still alive and if anybody alleges that he is dead, he must prove that fact.

S. 107- Burden of proving death of person known to have been alive within thirty years - When the
question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the
burden of proving that he is dead is on the person who affirms it.

This presumption is not a very strong one. It may not only be rebutted by slight
evidence to the contrary, for example, seven years' absence, but the court may not
act upon it until positive proof of his being alive is offered.
Presumption of death [S. 108]

Section 108 materially qualifies the operation and effect of the presumption raised
by S. 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 rebuttable
presumption of death.

S. 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.

Presumption of death simpliciter-

The condition for this presumption is that the man who has disappeared and about
whom the question arises whether he is alive or dead, must have remained unheard
of for seven years by those who would naturally have heard of him if he were alive.
The presumption then arises that he is dead so that the burden of proving that he is
still living lies upon the man who says so.

Section 107 and 108 must be read together because the latter is only a provisio 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. These section deal with the procedure to
be followed when a question is raised before a Court, as to whether a person is alive
or dead, but do not lay that the Court could make a presumption that a person was
alive for seven years after, and the onus he was last heard of, it depends on the
circumstances of each case, whether the Court could draw such a presumption or
not.
The Inference of both sections are:
i) After the lapse of seven years, only and only death could be presumed by the
court.
ii) There is no presumption of the time of death under Section 108 of Indian
Evidence Act, 1872.
iii) Time of death has to be proved by independent evidence.
Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent [S. 109]

S. 109- Burden of proof as to relationship in the cases of partners, landlord and tenant, principal
and agent- When the question is whether persons are partners, landlord and tenant or principal
and agent, and it has been shown that they have been acting as such, the burden of proving that
they do not stand, or have ceased to stand, to each other in those relationships respectively, is on
the person who affirms it.

According to this section when a person stands a relationship of partners of a firm or

landlord and tenant or principal and agent it is presumed that such relationship
continues unless the contrary is proved. When certain persons have been shown to
be related to each other, the presumption is that the relationship continues and if
one of them says that they are no more related, he must prove the non-existence of
relationship. The burden of proving sub-letting is on the landlord but if the landlord
proves that the subtenant is in exclusive possession of the suit premises, then the
onus is shifted to the tenant to prove that it was not a case of sub-letting.

A. Partners
Partnership once shown to exist is presumed to continue until the contrary is
proved.
B. Landlord and Tenant
Where the relationship of landlord and tenant is admitted or proved to exist
it will be presumed to continue until it is shown by affirmative proof that it
has ceased to exist. Mere non-repayment of rent, though for many years, is
not sufficient to show that such relationship has ceased. The Landlord claimed
possession of property stating that the tenant had orally surrendered the
same. The burden to prove relationship of landlord and tenant and denial of
ownership of alleged landlord lies on the party who denies the relationship
and ownership.
C. Principal and agent
Where an authority to do an act is once shown to exist, it is presumed to
continue until the contrary is proved.
Burden of proof as to ownership [S. 110]

S. 110- Burden of proof as to ownership- When the question is whether any person is owner of
anything of which he is shown to be in possession, the burden of proving that he is not me owner is
on the person who affirms that he is not the owner.

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

property, the presumption is that he is the owner of that property. If anybody
denies his ownership, burden lies on him to prove that he is not the owner of the
property. This section gives effect to the principle that possession is prima facie
evidence of complete title; anyone who intends to overthrow the possessor must
establish a right to do so. This is so presumed from lawful possession until the want
of title or a better title is proved. In a suit for possession based on title the plaintiff
has been able to create a high degree of probability so as to shift the burden on the
defendant. It is for the defendant to discharge his burden and in the absence
thereof the burden of proof lying on the plaintiff shall be held to have been
discharged so as to amount to proof of the plaintiff’s title.

Proof of good faith in transactions where one party is in relation of active

confidence. [S. 111]

S. 111- Proof of good faith in transactions where one party is in relation of active confidence.
Where there is a question as to the good faith of a transaction between parties, one of whom
stands to the other in a position of active confidence, the burden of proving the good faith of the
transaction is on the party who is in a position of active confidence.
Illustration
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client.
The burden of proving the good faith of the transaction is on the attorney
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by
the son. The burden of proving the good faith of the transaction is on the father.

Where the parties to a case are so related that one of them occupies the position of
active confidence, the law requires that the party enjoying confidence must act in
good faith towards the other and the burden lies upon him to prove that he did act
in good faith. Where, for example, a father has bought property from his child or an
advocate from his client, the relation being of trust and confidence and the bona
fide of the transaction is in question the burden of proving that the transaction was
entered into in good faith lies upon the father and the advocate respectively.
Relations of trust and confidence include those of parent and child, lawyer and
client, spiritual guru (adviser) and his follower, director and company, principal and
agent, partner and firm, doctor and patient, persons in authority and those over
whom he exercises his authority. In all such cases the law imposes the duty of good
faith upon the person occupying the position of trust and confidence, and he will
have to prove that he acted in good faith before he can enforce the transaction
against the other party. Initially the plaintiff has to prove that there was a fiduciary
relation or a relationship of active confidence. The burden of proving good faith at
the transaction would then shift to the other party. Until then the plaintiff has to
prove his allegations of fraud, etc.

S. 111A: Presumption as to certain offences.—

(1) Where a person is accused of having committed any offence specified in sub-section (2)
in:-
a) any area declared to be disturbed area under any enactment, for the time being in
force, making provision for the suppression of disorder and restoration and
maintenance of public order; or
b) any area in which there has been, over a period of more than one month, extensive
disturbance of the public peace,
and it is shown that such person had been at a place in such area at a time when
firearms or explosives were used at or from that place to attack or resist the members
of any armed forces or the forces charged with the maintenance of public order acting
in the discharge of their duties, it shall be presumed, unless the contrary is shown, that
such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely –
(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian
Penal Code (45 of 1860);
(b) Criminal conspiracy or attempt to commit, or abatement of, an offence under
section 122 or section 123 of the Indian Penal Code (45 of 1860).

Birth during marriage, conclusive proof of legitimacy. [S.112]

S.112- Birth during marriage, conclusive proof of legitimacy. -The fact that any person was born
during the continuance of a valid marriage between his mother and any man, or within two
hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive
proof that he is the legitimate son of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have been begotten.
The essential conditions for the presumption to arise are :
1. The child should have been born during the continuance of a valid marriage,
or if the marriage was dissolved, within 280 days after its dissolution, 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.
‘Conclusive evidence’ and ‘conclusive proof’ not different
In Somwanti v. State of Punjab It was held that, there is no difference between
‘conclusive evidence’ and ‘conclusive proof’, the aim of both being to give finality to
the establishment of the existence of a fact from the proof of another.
DNA Test
In Shaik Fakruddin v. Shaik Mohammed Hasan it was held that, The DNA test cannot
rebut the conclusive presumption envisaged under section 112 of the Indian
Evidence Act. The parties can avoid the rigor of such conclusive presumption only by
proving non-access which is a negative proof. The DNA Test for proving paternity of
the child can be ordered in exceptional and deserving cases only if it is in the
interest of child. DNA Test cannot be ordered as a matter of course in every case. It
is permissible in exception case. The use of DNA test can be resorted to only if such
test is eminently needed. Order for DNA Test by the Women’s Commission is
proper.

Gestation

The period of gestation mentioned is this section is 280 days. It does not mention any
maximum period of gestation. If a child born after 280 days and after dissolution of
marriage, “the effect of the section being merely that no presumption in favour of
legitimacy is raised, and the question must be decided simply upon the evidence for
and against legitimacy.” A child born within 280 days of the husband’s death is a
legitimate child.

If we go through the case laws, on this point, it is led enough that different Courts
have different views regarding this issue. If we look into ‘Medical Jurisprudence and
Toxicology’, under heading, ‘The Maximum Period of Pregnancy’, various periods
have been mentioned, starting from 315 days to a period of about 349 days. Another
jurisprudential authority by Dr. Lyon in ‘Medical Jurisprudence for India’, it is stated
that;
‘What is the longest period, which in natural human gestation, may be:

1. That this may be 296 days.

2. Most authorities agree in considering that the interval may be as long as 44 weeks
or 308 days; but it might also extend to 311 days.

Some of the authorities consider that the interval may extend to 46 weeks-315 to
322 days.

Proof of cessation of territory [S. 113]

S. 113- Proof of cessation of territory- A notification in the official Gazette that any portion of
British territory has before the commencement of Part III of the Government of India Act, 1935 (26
Geo. 5, ch. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid
cession of such territory took place at the date mentioned in such notification. A Government
notification as to cession of territory to any other State is a conclusive proof that a valid cession of
such territory has taken place at the date mentioned in such notification.
S. 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 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.
Explanation- For the purposes of this section "cruelty" shall have the same meaning as in section
498A of the Indian Penal Code (45 of 1860).]

Section 113A deals with the presumptions of abetment of suicide of a married

woman either by her husband or any of his relatives. The court has mentioned few
essentials to check that whether a suicide executed by married women is
inconsistent with the essentials mentioned under the provision, and if they are
consistent to it then the court in such cases will presume that such suicide has been
abetted either by the husband or his relative.
The essentials of this provision are:
(i) The incident of suicide was committed within a period of seven years from the
date of her marriage; and
(ii) Her husband, or his relative, has subjected her to cruelty as according to the
Section 498A of IPC.
S. 113-B. Presumption as to dowry death.-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 been
subjected to by such person to cruelty or harassment for, or in connection with, any demand for
dowry, the court shall assume that such person had caused the dowry death.
Explanation-For the purposes of this section, "dowry death", shall have the same meaning as in S.
304-B of the Indian Penal Code.

Dowry death is defined in S. 304-B of I.P.C. It covers a kind of death which is not
natural, occurring within seven years of marriage and is preceded by cruelty or
harassment in connection with dowry. Where a wife was last seen alive in the
company of her husband and her death was unnatural and homicidal, the husband
became under a responsibility by virtue of the provision in S. 106 of the evidence to
account for the circumstances of death because he alone must have known about
them.
Objects and reasons
The increasing number of dowry deaths is a matter of serious concern The extent of
the evil has been commented upon by the Joint Committee of the Houses. The
Committee examined the working of the Dowry Prohibition Act, 1961. Cases of
cruelty by the husband and relatives of the husband which culminate in suicide by,
or murder of, helpless woman concerned, constitute only a small fraction of the
cases involving such cruelty. It is therefore, proposed, to amend the Indian Penal
Code, the Criminal Procedure Code and the Indian Evidence Act suitably to deal
effectively not only with cases of dowry death, but also cases of cruelty to married
women by their in-laws.
Soon before death
The presumption as to dowry death operates only in cases in which the prosecution
proves that soon before her death the victim was subjected to cruelty or
harassment for dowry demand. The expression does not indicate any fed period. It
depends upon the application of the proximity test. There should be existence of
proximate and live link between the death as an effect of the cruelty. In reference to
the meaning of the words "Soon before" as used in Section 113-B, the Supreme
Court observed that their scope cannot be limited to a fixed time limit. The
expression should normally imply that the interval between cruelty, harassment and
death should not be such as to interrupt a close live link. The cruelty should not have
become too stale before the event. There must be proximate and live-link between
the effect of cruelty based on dowry demand and the death in question.
Court may presume existence of certain facts. [S.114]

S. 114- Court may presume existence of certain facts.The Court may presume the existence of any
fact which it thinks likely to have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation to the facts of the
particular case.
Illustrations
The Court may presume-
(a) That a man, who is in possession of stolen goods soon after the theft is either the has received
the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good
consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter
than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be! unfavourable to the
person who withholds it;
(h) That, if a man refuses to answer a question which he is not compelled to answer by law, the
answer, if given, would be unfavourable to him:;
(i) That when a document creating an obligation is in the hands of the obligor the obligation has
been discharged.
But the Court shall have also 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 shopkeeper 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 using 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 arrangement, Scribes precisely what was done, and admits and explains the common
carelessness of A and himself;
As to illustration (b).-A crime is committed by several persons. A,B and C three of the criminals, are
captured on the spot and kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner as to render previous
concert highly improbable;
As to illustration (c).-A, the drawer of a bill of exchange, was a man of business, B, the acceptor
was a 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;
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 of
small importance on which he is sued, but which might also injure the feelings and reputation of
his family;
As to illustration (h).-A man refuses to answer a question which he is not compelled by law to
answer, but the answer to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked;
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.

Presumption as to existence of certain facts

This section has given enough discretionary power to the court to draw certain
inference from the facts. The presumption under the section is discretionary and not
mandatory. Presumption can be drawn only from certain set of facts and not from
other presumptions. A presumption can be drawn only from facts, and not from
after presumption by a process of probable and logical reasoning. The presumptions
are ‘may presume’ in nature and “rebuttable.” This is the final conclusion to be
drawn from the facts. The term of the section are such as to reduce to their proper
position of mere maxims, which are to be applied to facts by the Courts in their
discretion, a large number of presumptions to which English law gives, to a greater
or less extent, an artificial value. Nine of the most important of them are given by
way of illustrations.
Common course of natural events
This expression signifies that an event can take place only when certain
circumstances become favourable or unfavourable. What is most common depends
upon the facts and circumstances. For example, period of gestation, continuance of
life etc. Human conduct Human conduct means the conduct found only in human
being who can judge what is right and wrong. The expression of such conduct may
either be positive or negative and that can be determined by his actions. Example: if
a man and woman are living as husband and wife for a longtime, the presumption is
they are married.
Public and private business
In order to presume certain fact the court under section 114 of the Evidence Act,
has to have regard to the common course of natural events, human conduct and
public and public business. “It is necessary that the common course of natural
events, human conduct and public and private business in so far as it relevant to the
facts in issue in particular case must be established.” A catalogue which embodies a
statement of the firm regarding the price at which it is prepared to sell its articles is
not hearsay and is admissible in evidence in proof of the price. There is a
presumption that every person in his private character does his duty and unless the
contrary is proved, it is presumed that all things are rightly and regularly done.
Presumption of Mens rea.
There is a presumption that mens rea or guilty intent is an essential ingredient of
offences created by law maker. But the legislature may create an offence with
absolute liability requiring neither mens rea nor any other state of mind.
Accomplice [ Illustration (b)]
This illustration enables the court to presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars. The court is not compellable
to raise this presumption. It is wholly in the discretion of the court. This
presumption was not raised where the testimony of the accomplice was not bereft
of reassuring circumstances.
Presumption of consideration in negotiable instruments [Illustration (c)]
The illustration says that the court may presume that a bill of exchange accepted or
endorsed was accepted or endorsed for good consideration. Though this illustration
talks only of bills of exchange, Section 118 of the Negotiable Instruments Act, 1881
extends the presumption to all kinds of negotiable instruments. The heading of the
section is "Presumptions as to negotiable instruments. Clause (a) of the section
provides for presumption of consideration. Every negotiable is presumed to have
been made or drawn for consideration. When a bill of exchange has been accepted
the presumption is that it has been accepted for consideration. When an instrument
has been endorsed, negotiated or transferred, the presumption is that it was
endorsed, negotiated or transferred for consideration. Thus, virtually all types of
transaction which take place with reference to a negotiable instrument as such are
presumed to be for consideration. Where an instrument is dealt with not as a
negotiable instrument; but as an ordinary contract and is transferred not by way of
negotiation but by assignment, this presumption does not apply.
Continuity of things [Illustration (d)]
The court may presume that a thing or state of things which has been shown to be
in existence within period shorter than that within which such things or state of
things usually cease to exist, is still in existence. The presumption is that things
remain where they were in their original state. Where a person is shown to be a
member of a joint family, is continuity in that position will be presumed unless the
contrary is shown. Property which was shown to be ancestral would be presumed to
continue in that state unless the contrary is shown.2 A person is known to be a
partner of a firm or agent of a particular person, a presumption arises that he
continues to be there unless the contrary is shown. A person who is shown to be
alive at any time during the last thirty years, is presumed to be still alive unless the
contrary is shown (S. 107, Evidence Act.]
Presumption of validity of judicial and official acts (S. 114(e))
The presumption under this section, though it is optional is that when a judicial or
official Act has been done it may be presumed to be regularly done. The rule is
based on the maxim that all acts are presumed to be rightly and regularly done. The
statement of facts happened at the hearing and recorded in the judgment of the
court is presumed to be correct.
The Illustration (e) means that if an official act is proved to have been done, it would
be presumed to have been regularly done. Where official acts are regularly
performed and if satisfied that the action in question is traceable to a statutory
power, the courts will upload such state action.
Similarly, same presumption is applicable to the official acts where the procedure
adopted by the selection committee was based on merits and marking was given
accordingly it was presumed that the official acts were genuine. In a private
establishment also where the course of dealing is systematic and regular similar
presumption may apply. The presumption as to correctness of entries in revenue
records has to be rebutted by leading evidence to the contrary. An entry of such
nature does not become rebutted by the mere statement of fact made in the
written statement. A marriage between a Catholic Christian wife and a Hindu
husband was in question. The wife was converted to Hindu before marriage
according to Vedic Rites. The marriage cannot be said to be void. It can be presumed
that the priest must not have performed marriage without conversion.
Recovery of Stolen Property (S. 114 (a))
Unexplained possession of a recently stolen property has been held by the Supreme
Court to be sufficient to create a presumption of guilt.
In reference to illustration (a) of the section the Supreme Court has observed that
the question whether a presumption should be drawn under Illustration (a) of S. 114
is a matter which depends upon the evidence and circumstances of each case. The
nature of the recovered articles, the manner of their acquisition by the owner, the
nature of the evidence about their Identification, the manner in which the articles
were dealt with by the accused, the place and the circumstances of their recovery,
the length of the intervening period and the ability of the accused to explain their
recovery, are some of those circumstances.
In the present case, a gold ring was recovered at the suggestion of the accused
within six days of the fact of murder and robbery. The ring was recovered along with
a handkerchief and currency notes, both of which bore the finger impressions of the
accused. The court held that all this was not merely a proof of robbery but a
presumptive evidence of the charge of murder as well.
Nature of property
Where the stolen articles were recovered from the accused on the basis of
disclosures made by him and that being the only evidence against him, the Supreme
Court said that no presumption as to his culpability in the original crime was to be
raised. The availability of such presumption also depends upon the nature of
property recovered. If the property is such that it can readily change hands, the
presumption under Section 114(a) would not be available. The articles recovered
were either cash, or other small things or vehicles. Such properties can easily change
hands. The accused could not be convicted merely on the basis of possession.
Withholding of evidence (S. 114 (g)
The Illustration deals with the presumption arising from withholding evidence. It
enables the court to presume that where evidence is withheld by the party, it goes
against him. "The presumption under section 114(g) is only permissible inference
and not a necessary inference". Merely because some important material which has
not been examined in the case, the court would not draw inference that if the
witness had been examined he would have given contrary, Where the anti
adulteration authorities did not produce the sample which was submitted to
analysis, it created presumption that there was something in the sample against
them. When a person is very much available and alive, attempt to prove signature or
handwriting by examining third person as a witness would have its own drawback.
An inference as provided for CL (g) of Section 114 would come into play. Where the
state did not produce the merit list despite Supreme Court's directions, presumption
is that no merit list was prepared Where a copy of the statement of an accomplice
recorded by the police was not given to the defense an adverse inference was
drawn against him testimony. Non production of witness created an adverse
presumption would ipso facto vitiate the whole trial. The question relates to
determination of consent or implied consent for surgical operation. The patient
denied to have consented to surgery excision of tumour, whereas the doctor
concerned in written submissions appended copy of consent form of the hospital
but not the actual consent taken from the patient and no evidence was produced on
part of the doctor. It raised presumption against the hospital and the attending
doctor as held by the Supreme Court. It was held that in essence of surgery consent
given for excision biopsy could ot by inference be taken to be consent for surgery.

Refusal to answer questions Illustration (h)

The illustration says that if a man refuses to answer a question, which he is not
compelled to answer by law, the court may presume that the answer, if given,
would be unfavourable to him.
Divorce was sought because of infidelity of wife. There was a specific plea of the
husband that he had no access to her and the child born during that period did not
belong to him. The court said that in such circumstances DNA could be ordered. If
she refused to undergo the test, a presumption could be drawn under Section 114
as to infidelity.

Document in hands of obligor Illustration (i)

The court may presume that an obligation has been discharged where the
document creating the obligation is in the hands of the obligor. Where the
instrument of debt and the security for it are in the hands of the debtor, the
presumption, on the face of things, would be that the debt must have been
discharged and for protecting his interest the debtor chained the document and the
security after discharging the debt.! Where a promissory note is in the hands of the
person who made in the presumption is that he must have paid it off. If the payee of
the instrument says that I was obtained from him unlawfully, burden would lie on
him to prove that fact. In a money suit on a bond the plaintiff alleged that he was
not able to produce the bond because it was stolen away from him. The defendant
admitted the execution of the bond but contended that he had paid it off. Burden
was held to on the defendant to prove the fact of payment either by the production
of the duly discharged bond or otherwise. Where the defendant said that the hundis
(Bills of Exchange) had been destroyed after payment, burden was on him to prove
that fact.
S. 114-A. [Presumption as to absence of consent in certain prosecution for rape.-In a prosecution
for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (1), clause (g), clause
(h), clause (i), clause (), clause (k), clause (l), clause (m) or clause(n)of sub-section (2) of section 376
(45 of 1860) of the Indian Penal Code, where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman
alleged to have been raped and such woman states in her evidence before the court that she did
not consent, the court shall presume that she did not consent
Explanation. In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses
(a) to (d) of section 375 (45 of 1860) of the Indian Penal Code.]

Strengthened presumption of absence of consent

The preceeding provision confined itself to some clauses of Section 376, IPC The
present provision is more broad-based. It covers all the clauses of Section 376(2),
IPC. In other respects, it remains the same as the preceding provision. The section
says that there is a prosecution for rape under clauses (a), (b), (c), (d), (e), (f), (g). (h),
(i), (1. (k), (), (m), of Section 376(2), and sexual intercourse the accused has been
proved. The question is whether it was without the consent of the victim, woman.
She states in her evidence
before the court that she did not consent. The Court has to presume that there was
no consent. The Explanation to the section says that the words "sexual intercourse is
to mean any of the acts in clauses (a) to (d) of Section 375.

Effect of new provision

The effect of the new provision is that where the question before the court is
whether an intercourse between a man and a woman was with or without concert
and the woman states in the court that it was against her consent, the court would
presume that there was no consent. The burden of proving consent becomes shifted
to the accused. If he is not able to prove that there was a consent, he becomes
guilty. The requirements of the presumption are:

1. It is a proven fact that there has been intercourse;

2. The question is whether it was with or without consent;
3. The woman states before the court that she had not consented.
The amendment became necessary partly because of the growing
incidence of rape and partly because of the sensational acquittal in Mathura
rape case.

The alarming frequency of crimes against women led the Parliament to enact the
Criminal Law (Amendment) Act, 1983 to make the law relating to rape more
realistic. Sections 375 and 376, 1.P.C. were amended and certain more penal
provisions were incorporated for punishing such (police) custodians who molest
women under their custody or care. Section 114-A was also added to the Evidence
Act for drawing a conclusive presumption as to
the absence of consent in certain prosecutions for rape. The Criminal Procedure
Code was also amended to provide for in camera trial.