MOHD YUSUF

17BALL023
GK-3467
LAW OF EVIDENCE-II
TUTORIAL TEST
09/05/2020

WHAT DO YOU MEAN BY WORD ‘PRESUMPTION’? EXPLAIN PRESUMPTION IN ‘RAPE CASE’

WITH REFERENCE TO CASE LAWS.

Presumption is an inference of fact drawn from other known or proved facts. It is a rule which
treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of
law that Courts shall draw a particular inference from a particular fact or from a particular
evidence, unless and until the truth of such inference is disproved. Presumptions help in
determining the probative force of evidence by bringing the estimation of probative force under
some inflexible rules excluding judicial discretion.
There are two kinds of presumptions:
(i) May Presume: Presumption of fact are permissive in the sense that the Court has discretion to
draw or not to draw them. They are also rebuttable as their evidentiary value may be negatived by
contrary proof. Thus these presumptions afford a provisional proof. That a person found in
possession of stolen property soon after the theft is either the thief or has received the goods
knowing them to be stolen is a presumption of this type.

(ii) Shall presume: They are always obligatory; and a judge cannot refuse to draw the presumption.
Such presumptions are either (i) rebuttable, or (ii) irrebuttable. Rebuttable presumptions of law are
indicated by the expression 'shall presume'. They hold good unless and until there is contrary
evidence, e.g., the Court shall presume the genuineness of every Government publication (section
84).

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PRESUMPTION IN RAPE CASES
114A. Presumption as to absence of consent in certain prosecutions for rape- In a prosecution
for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of
sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), 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 she States in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent.

According to section 114A, where the question before the Court is whether an intercourse between
a man and woman was with or without consent and the woman states in the Court that it was
against her consent, the Court shall presume that there was no consent. The burden of proof shifts
to the accused. If he is not able to prove that there was a consent, he becomes guilty. Section 114A
was introduced because of the increasing number of acquittals of accused when the victim of rape
is an adult woman. If she was really sopped, it was very difficult for her to prove absence of
consent. The new provision (inserted in 1983) has brought about a radical change in the Indian law
relating to rape cases. This presumption would apply not only to rape cases, but also to cases of
"attempted rape", as for instance, when the victim was disrobed and attempts were made to rape
her, which however could not materialize because of intervening circumstances; Fagnu Bhoi v.
State of Orissa, in a recent case of alleged 'gang rape' of a girl above 16, the F.I.R. was lodged 7
days after the occurrence. The girl admitted that she was desirous of marrying one of the accused,
and the chemical examiner's report ran counter to any sexual intercourse, in the circumstances, it
was held that the presumption under section 114A could not be invoked; Shatrughan v. State of
Madhya Pradesh.

SOMAWANTI CASE
In Somawanti v. State of Punjab, the Supreme Court defined the difference between 'conclusive
evidence' and 'conclusive proof'. In the instant case, the land belonging to the appellants was
acquired by the Government of Punjab on the grounds of 'public purposes', after a notification in
the Official Gazette. The petitioners contended that the said action violate their fundamental rights

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under article 19 to possess said land carry on their trade, etc. And, the Governmental declaration
is 'conclusive evidence' only of a need and nothing more, and is not a 'conclusive proof'. The
contention of the State Government was that its opinion about 'public purposes' was a 'conclusive
proof' and Court cannot go behind the question. The question, is when a fact is only 'conclusive
evidence' as to existence of another fact, other evidence as to the existence of other fact is shut out
or not. The Supreme Court observed: The object of adducing evidence is to prove a fact. Since an
evidence means and includes all statements which the Court permits, when the law says that a
particular kind of evidence would be conclusive as to existence of a particular fact, it implies that
fact can be proved either by that or some other evidence which the Court permits. Where such
other evidence is adduced, the Court could consider whether upon that evidence, the fact exists or
not. On the other hand, when evidence which is made conclusive is adduced, the Court has no
option but to hold that fact exists. Otherwise, it would be meaningless to call a particular evidence
as 'conclusive'. A 'conclusive evidence' shuts out any other evidence which would detract from the
conclusiveness of that evidence. The concept of 'conclusive proof' is defined under section 4: 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. In substance, therefore, there is no difference between 'conclusive evidence' and
'conclusive proof'. In each, the effect is same, i.e., making a fact non-justiciable (irrebuttable). The
aim of both being to give finality to the establishment of existence of a fact from the proof of
another. In the present case, thus, the opinion or declaration of State Government is conclusive
proof or conclusive evidence, and any further judicial probe is barred. The petitioner cannot lead
to disprove the irrebuttable presumption.

HAROOM HAZI CASE

In Haroom Haji Abdulla v. State of Maharashtra, the appellant Haroon is the sole appellant from
a batch of 18 persons who were tried jointly before the Chief Presidency Magistrate, Esplanade
Court, Bombay for offences under section 120B of the Indian Penal Code read with section 167(81)
of the Sea Customs Act and certain offences under the Foreign Exchange Regulations Act, 1947.
Of the remaining accused who were convicted, Haroon alone is before us. His appeal to the High
Court of Bombay was dismissed but he obtained special leave under Article 136 of the Constitution
and brought this appeal. The Supreme Court observed that: No doubt both Bengali and Noor

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Mohammad retracted their statements alleging duress and torture. But these allegations came
months later and it is impossible to heed them. The statements were, therefore, relevant. Both
Bengali and Noor Mohammad were jointly tried with Haroon right to the end and all that remained
to be done was to pronounce judgment. Although Bengali was convicted by the judgment, the case
was held abated against him after his death. The Supreme Court further held:
The law as to accomplice evidence is well settled. The Evidence Act, in section 133 provides that
an accomplice is a competent witness against an accused person and that a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this
provision is that the Court trying an accused may legally convict him on the single evidence, of an
accomplice. To this there is a rider in illustration (b) to section 114 of the Act which provides that
the Court may presume that an accomplice is unworthy of credit unless he is corroborated in
material particulars. This cautionary provision incorporates a rule of prudence because an
accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please
the prosecution, weave false details into those which are true and his whole story appearing true,
there may be no means at hand to sever the false from that which is true. The argument here is that
the cautionary rule applies, whether there be one accomplice or more and that the confessing co-
accused cannot be placed higher than an accomplice. Therefore, unless there is some evidence
besides those implicating the accused in some material respect, conviction cannot stand. Reliance
is placed in this connection upon the observations of the Judicial Committee in Bhuboni Sahu v.
Emperor, a case in which a conviction was founded upon the evidence of an accomplice supported
only by the confession of a co-accused. The Judicial Committee acquitting the accused observed:
The High Court has very searchingly examined the evidence of Kashinath and applied to it the
checks which must always be applied to accomplice evidence before it is accepted. There is
corroboration to the evidence of Kashinath in respect of Haroon from the confession of Bengali
given independently and in circumstances which exclude any collusion or malpractice. Regard
being had to the provision of section 133 of the Evidence Act, we do not think that we should
interfere in this appeal by special leave, particularly as we hold the same opinion about the veracity
of Kashinath. Thus, the Supreme Court dismissed the appeal.

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