law of evidence

Presumption in general

LAW OF EVIDENCE-I

PRESUMPTION IN GENERAL

SUBMITTED TO:SUBMITTED BY:Dr. Dr. PKVS. RAMA RAO PRANAV KUMARAssistant Professor (Law) ROLL NO- 773Chanakya National Law University4TH SEM, 2ND YEAR,B.A.LLB(HONS.)

CONTENTS

ACKNOWLEDGEMENT1. INTRODUCTION2. PRESUMPTION IN GENERAL3. LAST SEEN TOGATHER 4. MAY PRESUMPTION, SHALL PRESUMPTION AND CONCLUSIVE PROOF.......5. PRESUMPTION OF DOWERY DEATH6. PRESUMPTION AS TO DOCUMENT7. PRESUMPTION OF SURVIVOURSHIP8. CONCLUSIONBIBLIOGRAPHY

ACKNOWLEDGEMENT

Its a fact that any research work prepared, compiled or formulated in isolation is inexplicable to an extent. This research work, although prepared by me, is a culmination of efforts of a lot of people .Firstly, I would like to thank our teacher for the subject of Family Law, Dr. Dr. PKVS. RAMA RAO for giving such a topic i.e. PRESUMPTION IN GENERAL for the project work which assisted me in acquiring further knowledge in the field of Family Law. I would like to thank him for his valuable suggestions towards the making of this project.Thereafter, I would also like to express my gratitude towards our seniors who played a vital role in the compilation of this project work.I cannot ignore the contributions made by my classmates and friends towards the completion of this project work. And I would also like to express my gratitude towards the library staff of my college which assisted me in acquiring the sources necessary for the compilation of my project.Last, but not the least, I would like to thank the Almighty for obvious reasons. --- PRANAV JHACHAPTER- 1INTRODUCTION

A presumption is an acceptance of a fact as true or existent based upon its strong probability evident from the circumstances. For example, if a man has not been heard from for 7 years by his closest relatives, the court may believe in that the man is dead. This is a presumption. Thus, when the court presumes the existence of a fact because of its strong probability but without a direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in whose favor the fact is, is relieved of the initial burden of proof. For example, as per Negotiable Instruments Acts, every holder of an instrument is presumed to be a holder for consideration. So if a person A holds a cheque signed by another person B, it is presumed that A has given consideration for the cheque and so A does not have to provide any proof of that consideration. Of course, this presumption only applies at the beginning. The other party is free to provide proof that disproves the presumption. For example, the opposite party can show letters by the person or recent photograph of the person showing that he is still alive.

According to English Law, a presumption can be of two kinds - presumption of fact and presumption of law.

Presumption of FactPresumption of fact are those presumption about things or events that happen in day to day life, which we accept as true due to inference drawn logically and naturally by our mind. Such as, presumption that a man with blood stained clothes and a knife in his hands is the murderer. Such presumptions are rebuttable from further evidence.

Presumption of LawPresumption of law are arbitrary consequences that are annexed by law to particular facts. They are legal fiction. They may not be same as the inferences that we may ordinarily draw but the law prescribes that such inference may be drawn. For example, it is a presumption of law that a child below seven years of age is not capable of committing a crime. Or that a person who has not been heard from for seven years is dead. Such presumptions may or may not be rebuttable depending on the law. For example, the presumption that a child below seven years of age is not capable of committing a crime cannot be rebutted. Law presumes the age of the child as a conclusive proof of his innocence. But the presumption that a person is dead when he is not heard from for 7 years is rebuttable by showing evidence.

May Presume and Shall PresumeProvisions ofSection 4, in a general sense, correspond to the above classification. The first part of this section defines "May Presume" as follows -"May presume" -Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It gives the court a discretionary power to presume the existence of a fact. Which means that the court may regard the fact as proved unless and until it is disproved. For example, in the case ofDr T T Thomas vs Elisa AIR 1987, where a doctor failed to perform an emergency operation due to lack of consent, the court presumed that the consent was there since the patient was brought to the hospital. It was up to the doctor to prove that the consent was not there. The court may also ask for further proof before making the presumption.All the presumptions given inSection 114are of this kind, which says that 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. For example, the court may presume that a man who is in possession of stolen goods soon after theft, is either the thief of has received the goods knowing them to be stolen, unless he can account for his possession.

The second part of the section for defines "Shall Presume" as follows -"Shall presume" -Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces the court to presume a fact that is specified by the law unless and until it is disproved. The court cannot ask for any evidence to prove the existence of that fact but it may allow evidence to disprove it. For example,Section 90provides that where any document, purporting or proved to be thirty years old, is producedfrom any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Presumption about abetment of suicide of a married woman (S. 113A) and Presumption about dowry death of a woman (S. 113B) are of this kind.

Third part of the section defines "Conclusive Proof" as follows -"Conclusive proof" -When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. For example, birth during marriage (S. 112) is a conclusive proof of legitimacy.

Presumption and Burden of ProofJustice Venkataramiah, of SC observed the following, in the case ofSodhi Transport vs State of UP, 1986- A presumption is not evidence in itself but only makes a prima facie case for party in whose favor it exists. It indicates the person on whom the burden of proof lies. When the presumption is conclusive, it obviates the production of any evidence, but when it is rebuttable, it only points out the party on whom lies the duty of going forward with evidence on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over.

Presumption about abatement of suicide by a married woman

Section 113 A -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 113 B -Presumption as to dowry death -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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.Explanation -For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code.

CHAPTER-2Presumption in general "May presume" Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it "Shall presume" Whenever it is provided by this Act that the Court shall presume a fact, it may either regard such fact as proved, unless and until it is disproved "Conclusive proof" When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.Related Cases / Recent Cases / Case Law Devinder @ Kala Ram and Others Vs The State of Haryana, Criminal Appeal No. 636 of 2009, Supreme Court of India judgement dated October 18, 2012Other Sections from the Act Section 79: Presumption as to genuineness of certified copies Section 80: Presumption as to documents produced as record of evidence Section 81: Presumption as to Gazetteers newspapers, private Act of Parliament and other documents Section 82: Presumption as to document admissible in England without proof of seal or signature Section 83: Presumption as to maps or plans made by authority of Government Section 84: Presumption as to collections of laws and reports of decisions Section 85: Presumption as to powers of attorney Section 86: Presumption as to certified copies of foreign judicial records Section 87: Presumption as to books, maps and charts Section 88: Presumption as to telegraphic messages Section 89: Presumption as to due execution, etc., of document not produced Section 90: Presumption as to documents thirty years old Section 90A: Presumption Document custody in court

Read more:http://www.lawnotes.in/Section_4_of_Indian_Evidence_Act,_1872#ixzz2zKEWZO79

CHAPTER-3 last seen togetherIn short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.-Justice Krishna Iyer, V.R. One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty.Article 11 of the Universal Declaration of Human Rights, 1948 provides that everyone charged with a penal offence had the right to be presumed innocent until proved guilty according to law. Presumption of innocence is a human right as envisaged under Article 14 of the International Covenant on Civil and Political Rights. India is a signatory to the Covenant. Right to fair trial and presumption of innocence, are the twin essentials of administration of criminal justice. Once if a person is held to be not guilty of a criminal charge, he enjoys the benefits of such presumption of innocence which could be interfered with by the Courts only for compelling reasons and not merely because another view was possible on appreciation of evidence. Theburden of proofin a criminal case lies on the State. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The policy has been that let thousand criminals be acquitted one innocent must not be punished. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. However, with the development ofLast seen together, principle, the investigation system and the courts have been a little bit relieved of the burden of proof. When the principle could be invoked, the burden of proof would be shifted to the accused to explain any intervening facts after the last seen together with the victim of any criminal offence. In this paper an attempt is made to analyze the principleinter aliawith the help of the latest case law.Circumstantial EvidenceAccording toSir Alfred Wills the following rules are to be specially observed relating to circumstantial evidence: the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum[fact to be proved]; the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits; in order to justify the inference of guilt, the inculpatory facts [facts that lead to indicate guilt] must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.InArun Bhakta @ Thulu v. State of West Bengal, speaking through Dr. Arijit Pasayat, J the Court held thatfor a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, i.e., the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the facts in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.It was opined that the presence of the accused at the place of the offence or his being seen last with the deceased were also relevant. This is sometimes referred to as the test of last seen together as a piece of circumstantial evidence.Last Seen TogetherThe theory of last seen together is one where two persons are seen together alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime. Last seen together principle is one of the latest principles which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case the person last seen with the victim is presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an alibi. The foundation of the theory is based on principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime? There must be something more establishing connectivity between the accused and the crime! There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that eitherthe accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. InState of Maharashtra v. Suresh, the accused respondent was already an accused in another rape caseof an 8 yrs. old girl and got acquitted. He went to the house of deceased Sneha @ Gangu 4 yrs. old. The deceased was then playing near the gate of her house. After the respondent left the house, no one in that house had seen Gangu alive. There was evidence that the respondent took Gangu to the shop of Mahadeo, and later to the shop of Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death. The spot was pointed out by the respondent [after his arrest] wherefrom the dead body of Gangu was traced out. The accused could not give any explanation whatsoever for the injuries on his private parts. The Supreme Court reversed the Lower Courts judgment and convicted the respondent basing on last seen principle as there was other circumstantial and medical evidence.InJoseph s/o Kooveli Poulov. State of Kerala, the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company. On the information furnished by the appellant, the jewels of the deceased which were sold by the appellant, were seized.The Court had convicted the accused for the offence of murder basing on the last seen together principle but gave the benefit of doubt to the accused for the offence under S. 376 as there was no other incriminating evidence to prove the offence of rape.InMohibur Rahman and anr. v. State of Assam, the Apex Court considered three pieces of incriminating circumstantial evidence against the main accused Taijuddin viz., i) the deceased Rahul was last seen in the company of the accused Taijuddin ii) He gave a false explanation about the whereabouts of the deceased and iii) the accused was having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being subjected to deadly violence) being buried- coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances- to hold sufficient to fasten the liability of murder on the accused. The Court on the other hand held that merely because the other accused/appellant Mohibir was last seen with the deceased a few unascertainable number of days before the death of the deceased, he cannot be held liable for the offence of having caused the death of the deceased without any further evidence to establish the crime. Therefore, Taijuddins conviction was upheld and Mohibir was acquitted by the apex court.InJaswant Gir v. Punjab] the Apex Court observed that in the absence of any other links in the chain of circumstantial evidence, it was not possible to convict the appellant solely on the basis of the last-seen evidence.InState of Goa v. Sanjay Thakran the deceased couple arrived in Goa from Mumbai for their honeymoon and stayed in a hotel. the couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver. He had also taken them for the sight-seeing trip a day earlier as well. However, in the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused have been rightly given the benefit of doubt by the courts below.It is interesting to note that the State even on appeal could not prove the case as it merely based on the last seen together and the other evidence was not convincing.InRavindra Reddy v. Shaik Masthan and ors,[ A1, A2 and the deceased were last seen together going on a scooter by PW 9. Later the deceased was found dead. In pursuance of A1s confession, knives were recovered from the house of A-3 apart from seizing the Bajaj scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold chain were recovered. There was also evidence that the accused had purchased the two knives used for the offence. The trial Court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Courtas there was additional evidence besides the evidence of last seen together.Shivaji @ Dadya Shankar Alhat v. State of MaharashtrA was a gruesome rape murder case of tiny young girl aged 9 yrs studying 5thclass. As the accused, [a B.A., B.Ed., teacher,] offered fuel wood, the deceased had gone with him together to the Hills. She was last seen in the company of the deceased and injury on the abdomen and the rope by which the deceased was strangulated were recovered at the instance of the accused and the fact that the accused had absconded and was arrested from a place where he was hiding and the presence of blood on his cloth was a relevant factor. The plea of alibi set up has not been established. Supreme Court speaking through Justice (Dr.) Arijit Pasayat had confirmed death penalty.In Anil Kumar v. State Rep. by Inspector of Police[24]the Sessions Court relying primarily on the evidence of P W.2 (P W.1 having turned hostile) and P W.3 the Doctor and the recovery of the murder weapon, a knife, at the instance of the appellant, and the fact that the deceased and the appellant had been last seen together in the van, convicted the appellant. The conviction was affirmed by the High Court.But, theApex Court held that the Lower Courts conviction could not be sustained as the medical evidence far from supporting the prosecution story destroys its very substratum.InSk. Yusuf v. West Bengal, the Supreme Court has reiterated its observation inState of U.P. v. Satish that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It was held that where there is a long time-gap between last seen together and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of last seen together ]. Even if time gap is less and there is no possibility of others intervening, it is safer to look for corroboration. Md.Mannan @ Abdul Mannan v. State of Bihar, was another ghastly rape murder case of an 8 years old girl. The appellant was working as Mason in the House of Devi Kant Jha, grand- father of deceased (PW-8); He had sent the deceased Kalyani Kumari to the betel-shop to get betel. He had proceeded towards the betel-shop few minutes after the deceased left. He was last seen with the deceased going together on a bicycle. He made a confession leading to the recovery of dead body from a field. The dead body of Kalyani Kumari had injury on the private parts, her nails were munched and there were marks of bruises all over the body. The rape and murder by the appellant on the victim girl has been proved by medical evidence. The Apex Court conceded that it was the rarest of the rare cases and confirmed the death penalty.Interestingly, the judgment ofChandramauli Kr. Prasad, J.,quoted no judicial precedents at all Rajendra Pralhadrao Wasnik v. The State of Mahrashtra, was yet another brutal, gruesome rape murder case of a 3 year old girl. The accused had taken the victim Vandana from her home on the pretext of purchasing her biscuits. Neither Vandana nor the accused returned to the house. The accused was seen with the deceased at the bus stand. Thereafter, the nude body of Vandana was found in the field, the next day. The Apex Court held that on the basis of the `last seen together theory and other direct and circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. The Court opined that the accused had committed the crime in the most brutal manner and, thereafter,he opted not to explain any circumstancesand just took up the plea of false implication, which is unbelievable and unsustainable. The Court found no justifiable reason to interfere with the judgment of the High Court confirming the death penalty.Thus, the Courts have been requiring the accused to explain any intervening fact after the last seen together with the deceased whenever there was medical or other evidence corroborating with the last seen together.InShanmughan v. State of Kerala the victim Raji was sleeping on the fateful day in the bed room with her husband- the appellant. There was evidence of mal-treatment of the deceased by the appellant. Nobody was present in the bed room where the appellant and the deceased were sleeping as husband and wife. The victim admittedly screamed at about 2 a.m. That attracted the inmates of the house to rush to the bed room to find the victim dead as a result of administering of poison. This was not in dispute. The victim died of cyanide poison which is a highly corrosive poison. The presence of lacerated wounds on the lips, contusions in the ear and abrasions in the chest clearly shew that some force was used while administering the poison. Without any force these injuries could not be there in a case of suicidal poison. The injuries were fresh injuries and cannot be sustained by fall on a hard substance. PW 7 also deposed that the injuries could be because of forcible administration of poison. At the time of his statement under Section 313 Cr.P.C also, the attention of the accused appellant was specifically drawn by the trial court to the injuries on the deceased. To that the appellant did not give any answer. Therefore, taking all these facts and also the concurrent findings of the two courts, the Supreme Court was not inclined to interfere in the appeal. The appeal was accordingly dismissed.InShyamal Ghosh v. State of West Bengal, there were eye-witnesses who had seen the scuffling between the deceased and the accused on demand of money and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the lastseen together theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body was quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard and were therefore held liable.In the accused Jagsir Singh took the deceased Jagjit Singh @ Jagga, 10 year old boy, to accompany him for plucking flowers from the field. The boy accompanied him and did not return home. He was last seen with the accused persons; the accused had made extra-judicial confessions; the dead body of the deceased was recovered from the field of the father of the accused; the weapon used in the crime was also recovered on the basis of the confession; the report of Forensic Science Laboratory, the weapon used, spade, was found stained with human blood; and the post mortem report clearly stated that the injuries found on the body of the deceased could be caused by the seized weapon.. the accused could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. Thus, the Court convicted the accused basing on last seen principle besides other corroborating evidence.InKulvinder Singh & anr v. State of Haryana as both the appellants had been seen immediately before the occurrence at the place of occurrence and the deceased had come there shortly thereafter, the Apex Court observed that the accused had an opportunity to kill the deceased Amardeep. After the occurrence, they were seen running together from the place of occurrence. Such a conduct, if examined, with another circumstance i.e. the extra-judicial confession made by the appellants before an independent witness [Phool Singh (PW.10)], held completed the chain of circumstances pointing to the guilt of the appellants-accused.In the recent ArvindkumarAnupalal Poddar v. State of Maharashtra[36]case, the deceased and the accused were last seen together on 06.12.2001. Later, body of the deceased was recovered at the instance of the appellant. The recovery of knife from the place of occurrence, the frequent quarrels between the deceased and the accused, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, the death was homicidal and that the injuries could have been caused with the weapon marked in the case , that the appellant wanted to flee from the town itself and that the clothes seized from the appellant were found containing human blood- established the guilt of the appellant. The Apex Court quotedPrithipal Singh & ors v. State of Punjab [an illegal detention and death case] where it has been held that a fact which is especially in the knowledge of any person then the burden of proving that fact is upon him and that it is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. The Supreme Court has upheld the conviction of the accused.

CHAPTER-4May presumption, shall presumption, and conclusive proof

A presumption is an acceptance of a fact as true or existent based upon its strong probability evident from the circumstances. For example, if a man has not been heard from for 7 years by his closest relatives, the court may believe in that the man is dead. This is a presumption. Thus, when the court presumes the existence of a fact because of its strong probability but without a direct or conclusive proof, it is called as presumption. When a court presumes a fact, the party in whose favor the fact is, is relieved of the initial burden of proof. For example, as per Negotiable Instruments Acts, every holder of an instrument is presumed to be a holder for consideration. So if a person A holds a cheque signed by another person B, it is presumed that A has given consideration for the cheque and so A does not have to provide any proof of that consideration. Of course, this presumption only applies at the beginning. The other party is free to provide proof that disproves the presumption. For example, the opposite party can show letters by the person or recent photograph of the person showing that he is still alive.

According to English Law, a presumption can be of two kinds - presumption of fact and presumption of law.

Presumption of FactPresumption of fact are those presumption about things or events that happen in day to day life, which we accept as true due to inference drawn logically and naturally by our mind. Such as, presumption that a man with blood stained clothes and a knife in his hands is the murderer. Such presumptions are rebuttable from further evidence.

Presumption of LawPresumption of law are arbitrary consequences that are annexed by law to particular facts. They are legal fiction. They may not be same as the inferences that we may ordinarily draw but the law prescribes that such inference may be drawn. For example, it is a presumption of law that a child below seven years of age is not capable of committing a crime. Or that a person who has not been heard from for seven years is dead. Such presumptions may or may not be rebuttable depending on the law. For example, the presumption that a child below seven years of age is not capable of committing a crime cannot be rebutted. Law presumes the age of the child as a conclusive proof of his innocence. But the presumption that a person is dead when he is not heard from for 7 years is rebuttable by showing evidence.

May Presume and Shall PresumeProvisions ofSection 4, in a general sense, correspond to the above classification. The first part of this section defines "May Presume" as follows -"May presume" -Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it. It gives the court a discretionary power to presume the existence of a fact. Which means that the court may regard the fact as proved unless and until it is disproved. For example, in the case ofDr T T Thomas vs Elisa AIR 1987, where a doctor failed to perform an emergency operation due to lack of consent, the court presumed that the consent was there since the patient was brought to the hospital. It was up to the doctor to prove that the consent was not there. The court may also ask for further proof before making the presumption.All the presumptions given inSection 114are of this kind, which says that 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. For example, the court may presume that a man who is in possession of stolen goods soon after theft, is either the thief of has received the goods knowing them to be stolen, unless he can account for his possession.

The second part of the section for defines "Shall Presume" as follows -"Shall presume" -Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. It basically forces the court to presume a fact that is specified by the law unless and until it is disproved. The court cannot ask for any evidence to prove the existence of that fact but it may allow evidence to disprove it. For example,Section 90provides that where any document, purporting or proved to be thirty years old, is producedfrom any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Presumption about abetment of suicide of a married woman (S. 113A) and Presumption about dowry death of a woman (S. 113B) are of this kind.

Third part of the section defines "Conclusive Proof" as follows -"Conclusive proof" -When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. For example, birth during marriage (S. 112) is a conclusive proof of legitimacy.

CHAPTER- 5presumption on dowery death The problem of dowry is increasing day by day. The dowry death is the most heinous crime in this earth. In this crime, a man kill his for the money.

The requirements of Section 304 B are as following: That the death of a woman be caused by burns, bodily injury or otherwise than in normal circumstances within seven years of her marriage. Soon before her death, she was subjected to cruelty or harassment by her husband or her husbands family or relatives. That such harassment was in relation to a demand for dowry.

Once these three ingredients are satisfied, death shall be treated as dowry death and once a dowry death occurs, such husband or relative shall be presumed to have caused her death. Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is not only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law. Apex Court, in the case of Bansi Lal vs State of Haryana[(2011)11 SCC 359)], while analyzing the provisions of Section 304 B of the Indian Penal Code, held as under:

In such a fact situation, the provisions of Section 113-B of the Evidence Act, 1872 providing for presumption that the accused is responsible for dowry death, have to be pressed in service.

It may be mentioned herein that the legislature in its wisdom has used the word shall thus, making a mandatory application on the part of the court to presume that death had been committed by the person who had subjected her to cruelty or harassment in connection with any demand of dowry. It is unlike the provisions of Section 113-A of the Evidence Act where a discretion has been conferred upon the court wherein it had been provided that court may presume abetment of suicide by a married woman. Therefore , in view of the above, onus lies on the accused to rebut the presumption and in case of Section 113-B relatable to Section 304-B IPC, the onus to prove shifts exclusively and heavily on the accused.

Therefore , in case the essential ingredients of such death have been established by the prosecution, it is the duty of the court to raise a presumption that the accused has caused the dowry death.

CHAPTER- 6Presumption as to document

90. Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person' s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.-- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. Illustrations.(a)A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.(b)A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody is proper.(c)A, a connection of B, produces deeds relating to lands in B' s possession which were deposited with him by B for safe custody. The custody is proper. CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE CHAPTER VI OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCEA legal presumption is a conclusion based upon a particular set of facts, combined with established laws, logic or reasoning. It is a rule of law which allowing a court to assume a fact is true until it is rebutted by the greater weiht (preponderance) of the evidence against it.Examples of legal presumptions, among others, include:1. A child born of a husband and wife living together is presumed to be the natural child of the husband.2. A person who has disappeared and not been heard from for seven years is presumed to be dead.3. An accused person is presumed innocent until proven guilty.These presumptions may be rebutted by proof such as:1. a DNA test conclusively proving the husband is not the father,2. the missing person is found alive, and3. a verdict based upon the evidence at trial convicts the defendant.A legal presumption is distinguished from a presumption of fact, which is an argument of a fact from a fact; an inference as to drawn regarding an unknown fact based upon a known fact. This inference may derive from a past history of their connection; assuming the truth or real existence of something despite a lack of direct or positive proof of the fact, but grounded on circumstantial or probable evidence which makes it believable.For example, in comparing the two concepts, one court has stated that "'Constructive notice' is a presumption of law, making it impossible for one to deny the matter concerning which notice is given, while 'implied notice' is a presumption of fact, relating to what one can learn by reasonable inquiry, and arises from actual notice of circumstances, and not from constructive notice. Charles v. Roxana Petroleum Corporation, C.C.A.Okl., 282 F. 983, 988.The distinction between a presumption of law and a presumption of fact is defined in Vol. 9, Ency. of Evidence, 882, as follows:"The distinction usually drawn between these two classes of presumptions is that a presumption of law is an arbitrary rule of law that when a certain fact or facts appear a certain other fact is, for the purposes of the case, deemed to be established, either conclusively or until contrary evidence is introduced; while a presumption of fact is merely a logical inference or conclusion which the trier of the facts is at liberty to draw or refuse to draw."

CHAPTER- 7conclusion

In thelawofevidence, apresumptionof a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebuttable or conclusive presumption. The invocation of a presumption shifts theburden of prooffrom one party to the opposing party in a court trial. Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts. In the United States, mandatory presumptions are impermissible in criminal cases, but permissible presumptions are allowed.The ancient Jewish law code, theTalmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as "One does not ordinarily pay a debt before term."The same concept was found in ancientRoman law, where, for example, if there was doubt as to whether a child was really the issue of someone who had left money in a will, the presumption was in favour of the child. Medieval Roman andcanon lawgraded presumptions according to strength: light, medium or probable, and violent.[3]These gradings and many individual presumptions were taken over intoEnglish lawin the seventeenth century byEdward Coke.There are two types of presumption:rebuttable presumptionandconclusive presumption. An example of presumption without basic facts ispresumption of innocence.An example of presumptionwithbasic facts isDeclared death in absentia, e.g., the law says if a person has been missing for seven years or more (basic fact), that person is presumed deaL

A number of presumptions are found in mostcommon lawjurisdictions. Examples of these presumptions include: Thepresumption of death. A person who has been absent for seven years without explanation and "gone to parts unknown" is presumed dead at common law.The time period it takes for the presumption to arise has often been modified by statute.[7] Thepresumption of innocence, which holds that the prosecution bears the burden of proof in a criminal case, and that the accused has no obligation to introduce evidence until the prosecution has made aprima faciecase. Thepresumption of legitimacyorpresumption of paternity, which presumes that a husband is thebiological fatherof a child born to his wife during the marriage, or within nine months after the marriage is ended by death,legal separation, ordivorce.Some jurisdictions also hold that a presumption of paternity arises when a father accepts a child into his home, or publicly represents that he is the child's father. Apresumption of survivorshiphas referred to a number of different presumptions. The term is sometimes used to refer to presumptions that one or another of two persons lived the longer when they died together in the same accident.The presumption that two or more people who establish ajoint accountintend for the survivors to have the assets put into the fund upon the death of one of the joint account holders has also been called the "presumption of survivorship". Thepresumption of mailingpresumes that a properly addressed letter delivered to the post office or acommon carrierwas in fact delivered and received by the addressee. The presumption offraudorundue influencearises where a person in a position oftrustover another, such as aguardianor the holder of apower of attorneyapplies the other person's assets to his or her own benefit. Thepresumption of validityis another way of expressing a burden of proof: the official acts of courts are presumed valid, and those who would challenge them must overcome this presumption.]This is also termed thepresumption of regularity. In the law of the United States, thepresumption of constitutionalitypresumes that all statutes are drafted in accordance withFederalandstateconstitutional requirements. The party challenging the constitutionality of a statute bears the burden of proof, and any doubts are resolved against that party. If there are two reasonable interpretations of a statute, one of which is constitutional and the other not, the courts choose the path that permits upholding the statute.

CHAPTER- 5END NOTE1. Transnational principle used in international commercial arbitration:Trans-Lex.org2. Jump up^LH Hoffmann & DT Zeffertt, The South African Law of Evidence, 4th ed., p. 5893. Jump up^http://www.pub.umich.edu/daily/1997/jun/06-04-97/news/news3.html4. Jump up^Massachusetts Courts, jury instructions, Direct and Circumstantial Evidence"Circumstantial evidence ... may have an advantage because it comes from several different sources, which can be used as a check on each other."5. Jump up^Eyewitness Evidence: A Guide for Law Enforcement, U.S. Department of Justice, 1999 "Even honest and well-meaning witnesses can make errors, such as identifying the wrong person or failing to identify the perpetrator of a crime."6. Jump up^How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent Americans on Death Row.Rob Warden, Executive Director, Center on Wrongful Convictions, Northwestern University School of Law, 20017. Jump up^New York State Courts, Criminal Jury Instructions, Circumstantial Evidence"If there is a reasonable hypothesis from the proven facts consistent with the defendant's innocence, then you must find the defendant not guilty." citingPeople v Morris, 36 N.Y.2d 877 (1975)1. "CAN DNA DEMAND A VERDICT?|".Learn Genetics. The University of Utah. Retrieved 2011-12-12.2. Jump up^Printer forensics to aid homeland security, tracing counterfeiters3. Jump up^Discovery Channel:: News:: Computer Printers Can Catch Terrorists4. Jump up^Chemistry Homepage - Denison University5. Jump up^YiZhen Huangand YangJing Long (2008)."Demosaicking recognition with applications in digital photo authentication based on a quadratic pixel correlation model".Proc. IEEE Conference on Computer Vision and Pattern Recognition: 18.6. Jump up^"Drug Identification Unit".Law Enforcement Services. Wisconsin Department of Justice. Retrieved 2011-12-12.

BIBLIOGRAPHYBOOKS: Dr. Kirshna brahmachari lawof evidence Chief justice M.monir, the law of evidence

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