Burden of Proof

Sections.101 to 103
 Distinction
Burden of proof and onus of proof-
Burden of proof lies upon a person who has to
prove the fact and which never shifts.
Onus of proof shifts and such a shifting of onus is a
continuous process in the evaluation of evidence.
The burden of establishing remains throughout the
entire case exactly where the pleadings originally
place it. It never shifts.
The burden or onus of proof in the sense of
introducing evidence may shift constantly as
evidence is introduced by one side or the other
side or the other as the one scale or the other
preponderates.
 Contd.
• Lachman Uttamchand V Meena, AIR 1964 SC 40-
• It was held that burden of proof on pleadings
should not be confused with the burden of
adducing evidence which is called shifting.
Burden of proof on pleadings never shifts. It
remains constant.
• Initial burden of proving a prima facie case is cast
upon the plaintiff’s case, onus shifts on the
defendant to adduce rebutting evidence to meet
the case made out by the plaintiff.
• As the case continues to develop onus may shift
back again to the plaintiff.
• It is not easy to decide at what particular stage in
the course of evidence the onus shifts from one
side to the other.
 Sec-101
• 101. Burden of proof:
Whoever desires any Court to give judgment 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.
• Illustrations
• (a) A desires a Court to give judgment that B shall be
punished for a crime which A says B has committed.
• A must prove that B has committed the crime.
• (b) A desires a Court to give judgment that he is
entitled to certain land in the possession of B, by
reason of facts which he asserts, and which B denies,
to be true.
• A must prove the existence of those facts.
 Sec-101
• Deals with the burden of proof in the first
sense of establishing the case:
• Whoever desires any court to give judgment
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.
 Analysis
• Acc to sec-101- general rule in legal proceeding is
that he who asserts a fact or a claim has to prove
it. It is called burden of proof.
• Burden of proving a fact rests on the party who
substantially asserts the affirmative of the issue
and not upon the party who denies it.
• Burden of proof in this section is used to mean
the burden of establishing a case.
 Contd.
• ex: Party relying on a document has to prove
that the transaction is bona fide and genuine.
Thereafter only onus is placed on defendant
prove that it is a bogus and sham transaction
• Burden of proof may shifted by presumption
of law or fact- A party may get the benefit of a
rebuttable presumption. Onus is cast upon his
adversary to rebut that presumption.
 Points
• Harendra V state (2008) 9 SCC 204-
• It was held that “ It must be borne in mind that
wherever parliament intended to lay down a
different standard of proof in relation to certain
offences or certain patterns of crimes, it did so.
• In such a case subject to establishing some
primary fact, the burden of proof has been cast
on the respondents.
• There are a large number of statutes where the
doctrine of reverse burden has been applied.
Save and except those cases where parliamentary
statutes apply the doctrine of reverse burden, the
courts, should not employ the same which per se
would not only be violative of the UDHR but also
Art-21 of constitution of India.
 Sec-102
• Sections 102 and 103 deal with burden of
proof in the second sense of introducing
evidence.
• Sec-102 : 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.
• This section lays down a test for
determination as to upon whom burden of
proof lies.
• The test is that burden lies upon a party
whose suit will fail if no evidence is tendered
by either side. This is evidential burden.
 Analysis
• The best tests for ascertaining on whom the
burden of proof lies, are, to consider-
• first-which party would succeed if no
evidence were given on either side;
• Secondly-what would be the effect of striking
out of the record the allegation to be proved.
• The onus lies on whichever party would fail, if
either of these steps were pursued.
 Illustration to sec-102
• A) A sues B for land of which B is in possession,
and which, as A asserts, was left to A by the will
of C, B’s father.
• If no evidence were given on either side, B would
be entitled to retain his possession.
• Therefore the burden of proof is on A.
• B) A sues B for money due on a bond. The
execution of the bond is admitted, but B says that
it was obtained by fraud, which A denies. If no
evidence were given on either side, A would
succeed, as the bond is not disputed and the
fraud is not proved. Therefore the burden of
proof is on B.
 Palika sathiraju V P.S.Matheswara
• 1999 (5) Andh LT 442 (AP)- It was observed that:
• It is no doubt true that the legal burden is on the
plaintiff who filed the suit for eviction pleading
that the defendant is their watchman, but when
the defendant has taken a specific plea that he is
a tenant the evidentiary burden is upon him.
• If he is able to discharge the burden either by
direct evidence or by the circumstantial evidence
or even by raising some presumptions the burden
 Contd.
• Shift to the plaintiffs on who always lies and
remains constant legal burden. It is only the
evidentiary burden that shifts from time to
time…….under section-102 of Evidence Act
even if there is no evidence on the side of the
plaintiff, if the defendant fails to prove the
specific plea taken by him, he would fail.
 Example
• Plea of plaintiff that properties were ancestral
in nature, burden of prove it would be on
plaintiff and not on defendant to prove that it
was self-acquired property. Once preliminarily
it was proved by plaintiff that suit properties
were ancestral then burden shifts to other
party to disprove it.
 Analysis of sec-103
• Sec-103: The burden of proof as to any particular
fact lies on that person who wishes the court to
believe in its existence, unless it is provided by
any law that the proof of that fact shall lie on any
particular person.
• This section shows that whoever asserts a
particular fact, in whatever form it may be,
positive or negative or denying, must prove it
unless there is a rule of law either in the evidence
Act or in some other statute that the burden in
that particular case lies upon another person.
• In fact, sections 104 to 112 are such rules set out
in the Act, where the burden of proof or of
introducing evidence about a particular fact is
laid on a specified person.
 Exceptions to general rule
• Sec-104:Burden of proving fact to be proved to
make evidence admissible-the burden of proving
any fact necessary to be proved in order to
enable any person to give evidence of any other
fact is on the person who wishes to give such
evidence
• Illustration:-
• (a) A wishes to prove a dying declaration by B, A
must prove B’s death.
• (b) A wishes to prove, by secondary evidence, the
contents of a lost document. A must prove that
the document has been lost.
 Analysis
• No one shall be entitled to give evidence of
any fact without first showing that he is legally
entitled to do so.
• When, in order to render some evidence
admissible it is necessary to prove some fact,
the burden of proving that fact is on the
person who wants to give that evidence.
 Contd.
• 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 I.P.C, or within any special
exceptions 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.
 Analysis
• When under this provision an accused in his
defence relies on any of the exceptions
contained in I.P.C or in any other law defining
the offence, the burden of proving the
existence of all circumstances bringing his case
within any of such exceptions shall be on the
accused.
• The court shall raise a presumption that such
circumstances do not exist.
• An accused is presumed to be innocent until
the prosecution proves his guilt beyond
reasonable doubt.
 Illustrations
• (a) A, accused of murder, alleges that, by reason of
unsoundness of mind, he did not know the nature of
the act.
• The burden of proof is on A.
• (b) A, accused of murder, alleges that, by grave and
sudden provocation, he was deprived of the power of
self-control.
• The burden of proof is on A.
• (c) Section 325 of the Indian Penal Code provides that
whoever, except in the case provided for by section
335, voluntarily causes grievous hurt, shall be subject
to certain punishments.
• A is charged with voluntarily causing grievous hurt
under section 325.
• The burden of proving the circumstances bringing the
case under section 335 lies on A.
 Woolmington V Directo of public
prosecution(1932 AC 462)
• Their lordships observed that the prosecution has
not merely to prove that the accused had caused
the death and ask the court to presume that it
was murder, they must prove every ingredient
that makes killing a murder.
• It is not for the accused to prove his innocence
but it if for the prosecution to establish his guilt.
There is no burden of proof on the accused to
prove his innocence and it is sufficient to raise a
doubt as to his guilt and he is not bound to satisfy
the court of his innocence.
 Contd.
• Karali bauri V subhas das musib,1983 Cr.L.J
1474:-where the burden of proving the
existence of circumstances bringing the case
within the exceptions lies on the accused,
onus on the accused is however not that rigid
as on prosecution to prove their case beyond
reasonable doubt.
• M.S. Reddy V state Inspector of
Police,A.C.B,Nellore,1993 Cr.L.J 558 (AP):-Even
though the onus of proving the circumstances
lies, fails to prove the existence of such
circumstances bringing his case within any of
 Contd.
• General exceptions, the prosecution is neither
absolved of its onerous responsibility of
proving the guilt of the accused beyond
reasonable doubt nor the prosecution case is
there by improved.
• The prosecution cannot take advantage of the
weakness of the defence and cannot take
advantage of the inconsistent stand taken by
the accused from time to time. The
prosecution must stand on its own legs basing
on the evidence that has been let in.
 Presumption and rebuttal
• Section 4-"Shall presume": Whenever it is
directed by this Act that the Court shall
presume a fact, it shall regard such facts as
proved unless and until it is disproved.
• "Proved"-A fact is said to be "proved" when
after considering the matters before it, the
Court either believes it to exist, or considers
its existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it exists.
 Contd.
• "Disproved"-A fact is said to be disproved when,
after considering the matters before it, the Court
either believes that it does not exist, or considers
its non-existence so probable that a prudent man
ought, under the circumstances of the particular
case, to act upon the supposition that it does not
exist
• Section 101--Whoever desires any Court to give
judgment as to any legal right or liability
dependent on the existence of fact 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.
 Contd.
• It is a fundamental principle of criminal
jurisprudence that an accused is presumed to
be innocent and, therefore, the burden lies on
the prosecution to prove the guilt of the
accused beyond reasonable doubt.
• The prosecution, therefore, in a case of
homicide shall prove beyond reasonable
doubt that the accused caused death with the
requisite intention described in s. 299 of the
Indian Penal Code. This general burden never
shifts and it always rests on the prosecution.
 Contd.
• But, as s. 84 of the Indian Penal Code provides
that nothing is an offence if the accused at the
time of doing that act, by reason of
unsoundness of mind was incapable of
knowing the nature of his act or what he was
doing was either wrong or contrary to law.
• This being an exception, under s. 105 of the
Evidence Act the burden of proving the
existence of circumstances bringing the case
within the said exception lies on the accused;
and the court shall presume the absence of
such circumstances.
 Contd.
• Under s. 105 of the Evidence Act, read with
the definition of "shall presume" in s. 4
thereof, the court shall regard the absence of
such circumstances as proved unless, after
considering the matters before it, it believes
that said circumstances existed or their
existence was so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that they did exist.
 Contd.
• In other words, the accused will have to rebut the
presumption that such circumstances did not exist, by
placing material before the court sufficient to make it
consider the existence of the said circumstances so
probable that a prudent man would act upon them.
• The accused has to satisfy the standard of a "prudent
man". If the material placed before the court. such as,
oral and documentary evidence, presumptions,
admissions or even the prosecution evidence, satisfies
the test of "prudent man", the accused will have
discharged his burden.
• The evidence so placed may not be sufficient to'
discharge the burden under s. 105 of the Evidence Act,
but it may raise a reasonable doubt in the mind of a
judge as regards one or other of the necessary
ingredients of the offence itself.
 Dayabhai V State of Gujarat(AIR 1964
SC 1563)
• The doctrine of burden of proof in the context
of the plea of insanity may be state in the
following propositions:
• 1. The prosecution must prove beyond
reasonable doubt that the accused had
committed the offence with the requisite
mens rea and the burden of proving that
always rests on the prosecution from the
beginning to the end of the trial.
 Cond.
• 2. there is a rebuttal of presumption of 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 than that rests upon
a party to civil proceedings.
• 3. Even if the accused was not able to establish
conclusively that he was insane at the time when
he committed the offence, the evidence placed
before the court may raise a reasonable doubt in
the mind of the court as well as regards one or
more of the ingredients of the offence including
mens rea and that case the court would be
entitled to acquit the accused.
 Shrikant Anandrao Bhosale V state of
Maharashtra,AIR 2002 SC 3399
• The accused was charged with the murder of
wife in day light. Defence of insanity u/s 84 of
I.P.C was pleaded. On behalf of the defence
the circumstances proved were
• (i) the accused has family history as his father
was also suffering from psychiatric illness
• (ii) cause of ailment not known, it being
hereditary
• (iii) Appellant was being treated for
unsoundness of mind since 1992 Diagnosed as
suffering from paranoid schizophrenia.
 Contd.
• 4. Within a short span, soon after the incident
from 27th June to 5th December, 1994, he had to
be taken for treatment of ailment 25 times to
hospital.
• 5. Appellant was under regular treatment for the
mental ailment.
• 6. The weak motive of killing of wife being that
she was opposing the idea of the appellant
resigning the job of a Police Constable.
• 7. Killing in day light no attempt to hide or run
away
• The S.C held that the circumstances bringing the
case under S.84 were fully proved.
 Three stages
• 1. the first stage of lifting the initial presumption
raised at the end of sec.105-where the plea of
the accused does not go beyond the first stage
the accused is not entitled to acquittal.
• 2. the second stage is when a reasonable doubt
as to guilt of the accused is created-this stage is
concerned the opinion of the majority is, the
accused is entitled to acquittal by giving him a
benefit of doubt.
• 3. the third stage is of complete proof of the
exceptions pleaded by preponderance of
probabilities, which cover even a slight tilt of the
balance in favour of the accused’s plea-the
accuse of entitled to acquittal
 Siddapal V state, AIR 2009 SC 97
• Unsoundness of mind: Burden of proof how to
be discharged:-
• The onus of proving unsoundness of mind is
on the accused.
• But where during the investigation previous
history of insanity is revealed, it is the duty of
an honest investigator to subject the accused
to a medical examination and place that
evidence before the court and if this is not
done, it creates a serious infirmity in the
prosecution case and the benefit of doubt has
to be given to the accused.
 Contd.
• The onus, however, has to be discharged by
producing evidence as to the conduct of the
accused shortly prior to the offence and his
conduct at the time or immediately
afterwards, also by evidence of his mental
condition and other relevant factors.
• The burden of proof, however, is not so
onerous as that upon the prosecution to prove
that the accused committed the act with
which he is charged. The burden on the
accused is no higher than that resting upon a
plaintiff or a defendant in a civil proceedings
 Sec-106
• Sec-106: when any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him.
• The logic behind the section is, such person is
in a better position to prove the fact, which is
especially within his knowledge, and it is
difficult or rather impossible for the other
party to prove such a fact.
• (a) When a person does an act with some
intention other than that which the character
and circumstances of the act suggest, the
burden of
• proving that intention is upon him.
 Contd.
• (b) A is charged with travelling on a railway without a
ticket. The burden of proving that he had a ticket is on
him.
Shambu Nath Mehra v State of Ajmer,(AIR 1956 SC 404)
• Illustration (b) Indian railway Act
• This section only shifts burden from one side to other
under the circumstances mentioned there in.
• Vikramjit V state, (2006)12 SCC 306: The burden of the
prosecution to prove the case beyond reasonable
doubt always remains. Only when the prosecution case
has been proved the burden in regard to such facts
which was within the special knowledge of the accused
may be shifted to the accused for explaining the same
subject for some statutory exceptions
 Contd.
• Dhyneshwar V State (2007) 10 SCC 445:
• the deceased was found murdered in her
matrimonial home. The evidence or record
ruled out the possibility of any outsider
committing the offence. Held that when the
couple was last seen in a premises to which an
outsider may not have any access, it is for the
husband to explain the ground for unnatural
death of his wife.
 Sucha singh V State, (2001) 4 SCC 375
• It was applicable to cases where the prosecution
had succeeded in proving facts for which a
reasonable inference can be drawn as regards
existence of certain other facts unless the
accused by virtue of special knowledge regarding
such facts failed to offer any explanation which
might drive the court to draw a different
inference.
• In inescapable conclusion, it is submitted, would
be that to what extent sec-106 could be pressed
into service by the prosecution would depend on
the facts of a given case and it is perhaps not the
law that the prosecution can never take the
benefit of sec.106.
Especially within the knowledge of any
person
• The word especially means facts which are pre-
eminently or exceptionally within the knowledge
of the accused or a party to the civil proceedings.
• Jethulal Nanalal V state of Gujarat, AIR 1968 Guj
163: Language of Sec-106 and particularly by the
word ‘especially’ used therein connotes that the
facts must in their nature be such as could be
within the knowledge of the accused and possibly
of no one else. Sec-106 has no application if the
facts are such as are capable of being known by
others also
 Sec-107
• Sec-107: Burden of proving death of the person
known to have been alive within thirty years-The
burden of proving that a person, known to have
been alive within thirty years, is dead is one, the
person who affirms it
• 108. Burden of proving that 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.
 Analysis
• Sections 107 and 108 should be read together in
order to appreciate their full import
• Section.108 is an exception to the rule enacted in
sec.107
• If a person is not heard of for seven years the
presumption u/s 107 ceases to operate.
• Sec-108, subject to its applicability being
attracted, has the effect of shifting the burden of
proof back on the person who asserts the fact of
that person being alive.
• u/s.108 the death is presumed. But there is no
presumption as to the date or time of death.
 Contd.
• Sec-109: The burden of proving the
relationship in the cases of partners, landlord
and tenant, principal and agent lies on the
person who affirms the relationship.
• Sec-110: The burden of proof as to ownership
lies on the person who affirms that the
person, who is shown to be in possession, is
not the owner
 Contd.
• Sec-111: The burden of proof as to the good faith
in a transaction where on party is in relation of
active confidence lies on the party who is in a
position of active confidence
• Sec-114: In case of the presumption of fact the
burden of proof is shifted on the other side.
Under the provisions of section-114 the court has
a discretion to throw the burden of proof on
whichever side it chooses.
• Sec-114-A: Presumption as to absence of consent
of certain prosecutions for rape.
Presumption as to abetment of suicide
by a married women
• Section-113A of the evidence Act which was inserted
by the criminal law (2nd Amendment Act 46 of 83) with
effect from 26-12 1983
• “when the question is whether the commission of
suicide by a woman had been abetment 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”
 Contd.
• Explanation-for the purpose of this section,
Cruelty shall have the same meaning as in
section 498-A of the IPC.
• Sec-113A of the evidence is only a rule of
evidence and sec-498A is a substantive
offence but both shall be read together.
 Contd.
• Presumption u/s.113A would obviously arise
only when the necessary ingredients in order
to attract that provision are established.
• It is required that is should be proved that
suicide has been committed by women and
there should be an allegation of abetment by
her husband or any relative of her husband or
she has been subjected to cruelty and such
presumption is extendable for a period of 7
years from the date of marriage.
• Presumption under sec-113A not conclusive,
but, is rebuttable.
 Nelakantha pati v state of Orissa
‘May presume’
The expression used is ‘may presume’ and not that
rigid as ‘shall presume’
• In view of s.4 of the evidence Act, the import of
the expression ‘may presume’ is that the court
may either regard the fact in question is proved,
unless and until it is disproved, or may call for
proof of it.
• In s.113A of the evidence Act, the parliament in
its wisdom did not leave it at that by using the
expression ‘may presume’ alone, but has
supplemented the same by using the further
expression “having regard to all the other
circumstances of the case
 Contd.
• ” which casts positive responsibility on the
court to take into consideration all the other
circumstances of the case also, namely the
circumstances which may be there besides the
two basic circumstances mentioned in the
section itself which are suicide within seven
years of marriage and proof of cruelty, in
deciding whether the presumption of
abetment of suicide should be drawn in a
particular case form the proof of cruelty which
itself is separately punishable u/s.498A of I.P.C
 Analysis
• i) the woman committed suicide must be a
married woman;
• Ii) such a woman committed suicide within
seven years of her marriage;
• Iii) her husband or his relatives subjected her
to cruelty.
• Iv) the law presumes that her husband and
has relatives abetted her to commit suicide
 Contd
• V) the cruelty as per section 498A of the IPC
means:-
• (a) any willful conduct which is of such a nature
as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or
health(whether mental or physical) of the
woman; or
• (b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand.
 Contd.
• It is found statistically that most of the dowry
suicides were happened from the marriage
day to up to four or five years of the marriage.
Hence it is fixed seven years as the limitation
period in section 113A of the evidence Act
and section 304B of the I.P.C
• The presumption is rebuttable and is not
mandatory.
• The burden of proof lies on the husband and
his relatives that they had not acted with
cruelty against her.
 Contd.
• Section-306 of the IPC lays down the provision
for abetment of suicide and it says
• “if any person commits suicide, whoever
abets the commission of such suicide, shall be
punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine”.
• It is an independent section and is common
section containing penalty provision and is
applicable to all suicides.
 Ramesh kumar V state of chattisgarh,
2001 Cri.L.J 4724
• The court should not mechanically resort to a
strait-jacket approach in applying the provisions
of sec-113A of the Evidence Act for raising a
presumption of abetment of suicide.
• It may not be a correct approach in all
circumstances that as ‘no other earthly reason’
for commission of suicide was forthcoming
before the court
• there fore , by reason of cruelty a presumption of
abatement of suicide should be drawn against the
husband and the in-laws.
 Contd.
• The court in having recourse to the
presumption u/s.113A of the evidence Act is
circumspect.
• The legislative mandate of that section is that
where a woman commits suicide within seven
years of marriage and it is shown that her
husband or any relative of her husband had
subjected her to cruelty as the terms has been
defined in sec-498A of I.P.C. the court may
presume, having regard to all the other
circumstances of the case that such suicide
had been abetted by such person.
 Kumar choulia V state of W B
• As soon as it is proved that a married woman was
subjected to cruelty at the hands of her husband
or by the relatives of the husband, the
presumption of abetment of suicide will be there
and the onus would then shift to the accused
persons to prove that they did not abet the
suicide.
• Where the prosecution fails to prove the basic
requirement of presumption, the onus never
shifts to the accused persons and as such it is not
at all possible to convict the accused person with
the aid of presumption as to abetment.
 Case law
• Gurbachan singh V satpal singh, AIR 1990 SC
209.
• Facts-satpal singh along with his parents,
Harbhajan singh and kanwal dip kaur, was
charged U/S 306 of IPC for abetting his wife to
commit suicide. The deceased Ravinder kaur
was married to satpal singh in Nov, 1982. She
died on 25th June 1983. She, it was alleged,
committed suicide on account of cruel
behavior of her in-laws soon after the
marriage.
 Contd.
• She used to visit her parents at Amritsar
occasionally and during her visits she used to
narrate that her in-laws were demanding
dowry and were taunting her and also making
the insinuation that she was carrying an
illegitimate child.
• It is alleged that, provoked by aforesaid
conduct and behavior, she committed suicide.
 Contd.
• Additional sessions judge, Amritsar convicted
and sentenced to rigorous imprisonment for
five years.
• The HC of punjab and haryana allowing the
appeal of the accused set aside the conviction
on the ground that the prosecution failed to
establish the charge against the accused
persons.
 Contd.
• S.C. held that, on the consideration of the
circumstantial evidence that she was compelled
to take the extreme step of committing suicide as
the accused persons had subjected her to cruelty
by constant taunts, maltreatment and also
alleging that she has been carrying an illegitimate
child.
• The suicide having been committed within a
period of seven years from the date of her
marriage in accordance with the provision of sec-
113A, the court may presume having regard to all
the other circumstances of the case.”
 Contd.
• The S.C therefore set aside the judgment and
order of acquittal passed by H.C and affirmed
the conviction of the accused of the offence
under section 306 of the I.P.C and sentenced
imposed upon them by the Addl. sessions
judge.
Presumption as to dowry death when
can be raised
• The necessary for insertion of sec-113B of
Evidence Act as also sec-304B of IPC has been
amply analyzed in the law commission of India
in its 91st Report dated 10th August, 1983 on
“dowry deaths and law Reform”.
• Keeping in view the impediment in the pre-
existing law in securing evidence to prove
dowry related deaths, legislature thought it
wise to insert a provision relating to
presumption of dowry death, on proof of
certain essentials.
 Contd.
• It is in this background presumptive sec-113B in
the Act has been inserted.
• As per the definition of dowry death in sec-304B,
IPC and the wording in the presumptive sec-113B
in this Act, on the of the essentials ingredients,
amongst others, in both the provisions is that the
concerned woman must have been(soon before
her death) subjected to cruelty or harassment
(for or in connection with demand of dowry).
• On proof of the essentials mentioned therein. It
becomes obligatory on the court to raise a
presumption that the accused caused the dowry
death
 Presumption as to dowry death
• Section-113B of the evidence Act states that
“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 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”
 Contd.
• Explanation- for the purpose of this section
“dowry death” shall have the meaning as in
section-304B of the I.P.C 1860
• As per section 304B of the I.P.C:-
• Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than
under normal circumstances within seven years
of her marriage and it is shown that soon before
her death she was subjected to cruelty or
harassment by her husband or any relative of her
husband for, or in connection with, any demand
for dowry, such death shall be called dowry death
and such husband or relative shall be deemed to
have caused her death
 Analysis
• i) the death of a woman was caused by burns
or bodily injured or had occurred otherwise
than under normal circumstances;
• Ii) such death should have occurred within
7years of her marriage
• Iii) the deceased was subjected to cruelty or
harassment by her husband or by any relative
of her husband;
 Contd.
• Iv) such cruelty or harassment should be for or
in connection with the demand of dowry; and
• V) to such cruelty or harassment the deceased
should have been subjected to soon before
her death.
• As and when the aforesaid circumstances are
established, a presumption of dowry death
shall be drawn against the accused under sec-
113B of the Evidence Act.
 Points
• It is a rebuttable presumption and onus to
rebut shifts on the accused.
• Section-113B and 304B of I.P.C shall be read
together.
• The burden of proof lies upon the accused(the
husband or his relatives) to prove that they
did not subject the deceased wife and did not
demand dowry.
 points
• The expression ‘shall presume’ imposes a
mandatory obligation on the court to raise a
presumption that the accused has caused the
dowry death.
• Initial burden of proving that circumstances
envisaged by sec-304B, IPC did exist is on the
prosecution to shown that soon before her death
she was subjected to cruelty or harassment in
connection with demand of dowry.
 “soon before her death”
• Prem kanwar V state of Rajastan, AIR 2009 SC
1242-
• It was held that the expression soon before
her death used in the substantive sec-304B of
IPC and sec-113B of Evidence Act is present
with the idea of proximity test.
• No definite period has been indicated and
expression ‘soon before’ is not defined. A
reference to expression ‘soon before’ used in
sec-114, Illustration (a) of Evidence Act is
relevant.
 Analysis
• The expression soon before would normally
imply that the interval should not be much
between the concerned cruelty or harassment
and the death in question.
• There must be existence of a proximate and
live-link between the effect of cruelty based
on dowry demand and concerned death.
• If alleged incident of cruelty is remote in time
and has become stale enough not to disturb
mental equilibrium of the woman concerned,
it would be of no consequence.
Samir sumanta v state, 1993 Cr.L.J 134
• Although the legislature has used the
expression ‘shall presume in sec-113A instead
of “may presume” having regard to all the
other circumstances of the case” as in section
113A of the Act, yet even in sec-113B the
proximity test has been assigned a definite
role for determining whether it is fit case for
invoking the compelling presumption or what
is called the presumption of law as envisaged
in that section.
 Contd.
• The expression “and it is shown that soon before
her death such woman had been subjected by
such person to cruelty or harassment for, or in
connection with any demand for dowry” as used
in sec-113B is pregnant with the idea of proximity
test.
• The cruelty or harassment must have been
committed soon before her death. This reflects
the insignia of proximity test.
• The question of length of time will answer the
requirements of the words, “soon before her
death” may of course depend upon the facts and
circumstances of a case.
 Contd.
• But the legislative intent is very clear that
even the compelling presumption of sec-113B
of the Evidence Act is confined only to cases
where proximity of time by itself lends a safe
assurance about the existence of a proximate
relation between torture over dowry demand
and unnatural death as cause and effect.
 Section-114A
• 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.
 Introduction
• Sec-114A of the Evidence Act has been
introduced by Criminal Law (Amendment Act
43 1983) with effect from 25-12-1983.
• After the sensational case Tukaram V state of
Maharashtra, AIR 1979 SC 185 known as
Madhura case, sec-375 and 376 of the I.P.C
were redrafted and substituted by the Act 43
of 1983
• Facts: the girl by name Mathura was brought
to the police station and she was raped by two
policemen.
 Contd.
• The trial court was of the opinion that the
affair was probably with the consent and
acquitted the accused of the charge of rape.
• The High court on appeal convicted the
accused in view of the fact that passive
submission at a police station cannot be
deemed as consent.
• The S.C on appeal by the accused acquitted
them in view of the following reasons:-
• (i) the alleged affair have been peaceful one as
no injury could be found on the person of the
girl.
 Contd.
• (ii) the victim, after separation from the party,
with whom she was found meekly followed
ganpath(the policeman) and allowed him to
satisfy his lust.
• (iii) the prosecution is required to prove the
offence of rape and to prove that the consent
was obtained by putting her in fear and they
have failed to discharge.
• After the amendment:-
• Sec-114A of the Evidence Act lays down that
in the cases mentioned in the section
 Contd.
• The prosecution has to prove only that there was
sexual intercourse between the accused and the
prosecutrix.
• After that if the prosecutrix states in her evidence
before the court that she did not consent the
court shall presume that the sexual intercourse
was committed without the consent of woman
• then it lies on the accused to prove that he
committed the sexual intercourse with the
consent of woman
• but if he fails to prove the consent of the woman
he shall be committed for the offence of rape
u/s.376 of I.P.C
 Presumption u/s.114A arises only
• When the accused who commits rape is a
police officer,
• a public servant,
• an officer of jail, hospital,
• in the circumstances mentioned in clause (a),
(b), (c) and (d) of sub-section (2) of Sec-376 of
IPC or
• he commits rape on a woman knowing that
she is a pregnant or
• when rape is a gang rape.
 Contd.
• Jamanlal V state of M.P., 2002 Cri.L.J 199
• In a rape case the prosecutrix was more than
16 years of age on the date of occurrence. She
did not disclose the incident to her parents at
the earliest and even she indulged in sexual
intercourse with the accused two or three
times and lodged FIR only after her mother
noticed her five moths pregnancy.
• Held, Sec-114A was not attracted.