Law of Evidence

By Nizam Azeez Sait,

MODULE No. 22

PRESUMPTIONS

This is the 22nd Module of the subject ‘Law of Evidence’. In this module we shall deal with Presumptions – We shall go through the different variants of Presumptions as contemplated in the Evidence Act while explaining the terms ‘May presume’ ‘Shall presume’ and ‘Conclusive proof’ in the Evidence Act. We will also see specific instances of presumptions as to documents and facts as per the the Bharatiya Sakshya Adhiniyam / Evidence Act, including presumptions of fact under Section 119 of the Bharatiya Sakshya Adhiniyam (S.114 of the Evidence Act) and Presumption as to thirty-year-old document produced from proper custody under Section 92.

Introduction

In common parlance, presumption is a supposition or belief previously formed in a person’s mind. Law of evidence in certain circumstances allows the courts to draw certain inferences as to the existence of a fact when some other fact or facts are shown to exist.

In P. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd Edn., at p. 3697, the term “presumption” has been defined as under:

“A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof.

To have a better understanding of the term “Presumption” we will go through some of the observations of English Jurists and the Supreme Court of India.

As per Abbott, C. J., in R. v. Burdett (4 B&Ald 95, 161):

‘A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore, that a presumption of any fact is an inference of that fact from others that are known’

Wills on Circumstantial Evidence, states:

“The word ‘presumption’, inherently imports an act of reasoning — a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we know to be invariably, or commonly, connected with some other related facts.”

Black’s Law Dictionary 5th Edition, 1979, defines ‘Presumption’ as under:

“A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.”

In Sodhi Transport Co. and Others v. State of U.P. and Others, reported in 1986 (2) SCC 486, the Supreme Court observed:

“A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. 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. Then the evidence will determine the true nature of the fact to be established. The rules of presumption are deduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts, and circumstances.”

“A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking, results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made.”

“May presume” “Shall presume’, and ‘Conclusive proof”

The Indian Evidence Act 1872 as well as the Bharatiya Sakshya Adhiniyam employs three kinds of presumptions which are indicated by the phrases “may presume” “shall presume’, and ‘conclusive proof” respectively.

Section 4 of the Evidence Act explained these phrases “may presume” “shall presume’, and ‘conclusive proof”.

Now in the Bharatiya Sakshya Adhiniyam the scope of ‘May presume’ is explained in Section 2(h), ‘Shall presume’ is explained in Section 2(l) and ‘Conclusive proof’ is explained in Section 2(b) as under:

“May presume”. —Whenever it is provided by this Adhiniyam 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 directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

“Conclusive proof” means when one fact is declared by this Adhiniyam 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;

Now we shall deal with each of the above in detail.

MODULE INDEX

Module 22 – Part 1

  1. ‘May presume’ – Presumption of Facts – Discretionary Presumptions
  1. 119, illustration (a) – Case Law
  1. Corpus and the Animus of Possession Must Be Established – Illustration (a) of S 119
  1. Importance of Time Factor in 119 illustration  (a)
  2. Recovery of Stolen Property – Whether Presumption Could be drawn of Theft / Robbery and Murder – Cautious Approach is Required
  3. 119, illustration (b) – Case Law
  1. Accomplice’s Evidence Section 138 and 119 (Section 133 and S.114, illustration (b) of Evidence Act)
  1. 119, illustration (c) – Case Law
  1. 119, illustration (d)
  1. 119, illustration (e) & (f)
  1. 119, illustration (e) Presumption Applies to All Official Acts
  1. Illustration (e) to S.119, Equally Applies to Police Officers
  1. Presumption of Genuineness of Registered Documents
  1. The Registration Of Documents Does Not Per se or Ipso Facto Absolve Proof Of Execution of Will
  2. Presumption Of Truth Of Revenue Record
  1. Probative Value of Entries in Public Record
  1. 119 illustration  (f)
  1. Presumption Relating to Due Service/Delivery in the Case of Letters Issued by Certificate of Posting and Registered Post
  1. 119, illustration (g) & (h)
  1. Parties Cannot Withhold Best Evidence
  1. Withholding of Material Witness – When Adverse Inference Can Be Drawn
  2. When A Party To The Suit Does Not Appear As A Witness – Adverse Inference
  1. 119, illustration (i)
  1. Presumption Under S.119 Are Not Confined To Instances Provided In Illustrations (a) to (i)
  1. Presumption of Marriage in Long Cohabitation
  1. Drawing Inference of Rate / Amount of Use and Occupation Charges by the Court – Permissible Under S 119 of the Bharatiya Sakshya Adhiniyam
  1. Presumption as to Certified Copies of Foreign Judicial Records – S. 88
  1. Presumption as to Books, Maps and Charts – S.89
  1. Presumption as to Telegraphic Messages
  1. Presumption as to Electronic Message – S 90
  1. Presumption As To Ancient Documents S.92
  1. Provision Is Founded On Necessity and Expediency
  2. Presumption is With Respect to Genuineness of Signature, Execution and Attestation And Not As To Truth of Recitals/Contents
  1. The Date Of Computation Of The Elapse Of Thirty Years in S.92
  1. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available To A Will Which Is More Than 30 Years Old
  1. Bharpur Singh v. Shamsher Singh – Held Per incurrium Of Larger Bench Decisions In K. V. Subbaraju v. C. Subbaraju, (3 Judges Bench) (AIR 1968 SC 947)
  1. Presumption As To Abetment Of Suicide By A Married Woman
  1. Ingredients Of S. 117 of the Bharatiya Sakshya Adhiniyam (S.113A Evidence Act )
  2. Case Law Where the Courts Refused to Draw Presumption Under Section 113A (Section 117 of the Bharatiya Sakshya Adhiniyam) – Foundation For Drawing the Presumption Should Be Established
  3. A Cause and Effect Relationship Between the Cruelty and the Suicide
  4. Case Law Where the Courts Drew Presumption Under Section 113A Evidence Act and Convicted the Accused

Module 22- Part 2

  1. Rebuttable Presumptions of Law / ‘Shall Presume’ Proposition – Mandatory Presumptions
  1. Presumption as to Genuineness of Certified Copies – S 78
  1. To Attract the Presumption Of Genuineness The Certified Copy Must Be Issued Substantially In The Form And In The Manner Provided By Law
  1. Certified Copies Of Public Document Prove Contents Of Document With Out Calling Its Maker As A Witness
  1. Presumption as to Documents Produced as Record of Evidence
  1. Certified Copy Of Deposition Of A Party In Another Case Can Be Marked With Out Examining Such Party
  1. Confession Duly Recorded By A Magistrate Can Be Received In Evidence With Out Examining The Magistrate
  2. Memorandum Of Identification Parade Proceedings by A Magistrate Has To Be Proved – Section 79 of the Bharatiya Sakshya Adhiniyam Is Not Applicable
  3. Presumption as to Gazettes, Newspapers, Private Acts of Parliament etc
  1. Facts Stated in Gazette Admissible under S. 29 Read With S. 80 Of The Bharatiya Sakshya Adhiniyam
  1. News Paper Reports Is Hearsay – Fact Has to Be Independently Proved
  2. Presumption as to Gazettes in Electronic Forms
  1. Presumption as to Document Admissible in England Without Proof of Seal or Signature – Section 82 of the Evidence Act (omitted)
  1. Presumption as to Maps or Plans Made by Authority of Government
  1. Presumption as to Collections of Laws and Reports of Decisions
  1. Presumption as to Powers-of-Attorney
  1. Meaning / Definition of Power of Attorney
  1. Authentication – Meaning
  1. Presumption – Person Who Executed The POA Complying Section Section 84 of the Bharatiya Sakshya Adhiniyam Had The Authority To Do So For The Company
  2. Presumption under Section 84 of the Bharatiya Sakshya Adhiniyam as to Powers-of-Attorney is Mandatory but Rebuttable
  1. Attestation Not Mandatory For A Power Of Attorney
  1. Presumption Of Regularity Of Notarial Acts
  1. Notary Public Includes Notary Public Of Foreign Countries
  1. Notification Under S.14 of the Notaries Act,1952 Whether Mandatory for Recognising Foreign Notarial Acts and Application of Presumption Under S.85 of the Evidence Act – Conflicting Views
  2. “Jaldhi Overseas” to be Correct and Pragmatic and “Rei Agro Limited” Appears to be Hyper Technical and Per incurrium
  1. Presumption as to Electronic Agreements
  1. Presumption as to Electronic Records and Digital Signatures
  1. Presumption as to Electronic Signature Certificate
  1. Presumption as to Due Execution, etc., of Documents Not Produced After Notice to Produce
  1. Application Of Presumption Under S 89 When Notice Under S 64 is Dispensed
  1. Presumption as to dowry death – Section 118 of the Bharatiya Sakshya Adhiniyam (Section 113B of the Evidence Act)
  1. Dowry Death – Definition
  1. Legislative Intent of Ss 80 and 85 of the Bharatiya Nyaya Sanhita, 2023 (S.304 – B, 498 – A, IPC), Ss 117 and  118 of the Bharatiya Sakshya Adhiniyam (S. 113 – A and 113 – B of the Indian Evidence Act)
  1. Scope of Section 118 of the Bharatiya Sakshya Adhiniyam (S 113 B Evidence Act)
  1. Cruelty and Demand For Dowry Must Be Proved For Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam S.113 B of the Evidence Act
  1. Standard of Proof of Cruelty required for Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam (S.113 B of the Evidence Act)
  1. “Soon before” is a Relative Term and no Strait – Jacket Formula Can Be Laid Down as to the Time Frame
  1. Standard of Proof for Rebutting the Presumption under S 113 B (Section 118 of the Bharatiya Sakshya Adhiniyam) is Preponderance of Probabilities’
  2. Summary of Law of Section 80 of the Bharatiya Nyaya Sanhita and Section 118 of the Bharatiya Sakshya Adhiniyam (S.304 – B IPC and S.113 – B of the Evidence Act)
  3. Presumption as to absence of consent in certain prosecution for rape – Section 120
  1. Corroboration of Prosecutrix / Victim’s Evidence Is Not Generally Insisted In Rape Cases
  1. Presumption Under Section 120 of the Bharatiya Sakshya Adhiniyam (S.114A Evidence Act) is Not Available For Offence Under S 64(1) of the Bharatiya Nyaya Sanhita, 2023 (376(1) IPC) and Available Only In Offence under S. 64(2) (376(2) IPC)
  1. 114A (Section 120 of the Bharatiya Sakshya Adhiniyam) Adds Weight and Credence to the Statement of the Victim Woman
  1. There Should Be Proof Of Sexual Intercourse For Drawing Presumption under S 114A (Section 120 of the Bharatiya Sakshya Adhiniyam)
  1. Instance of Rebuttal of Presumption under S 114 A of the Evidence Act – (Section 120 of the Bharatiya Sakshya Adhiniyam) – Case Law
  2. Presumptions of Law Under Negotiable Instruments Act
  1. Rebuttal of Presumption of Law under S.118 (a) of N I Act
  2. Rebuttal of Presumption under Section 139

Module 22 – Part 3

  1. Irrebuttable Presumptions of Law/‘Conclusive Proof’ Proposition
  1. Presumption of paternity
  1. Acceptability of DNA Test to Disprove Paternity; Recent Trend
  2. When DNA Test can be allowed

Module 22 – Part 1

1. ‘May presume’ – Presumption of Facts – Discretionary Presumptions

The Presumptions falling under this category are referred as presumptions of fact or discretionary presumptions. Here the court is not bound to draw the presumption and has the discretion to draw the presumption or not to. Such presumptions are rebuttable presumptions. When the court presumes a particular fact in favour of a party he is relieved of the initial burden of proving that fact. When the Court draws such presumption and regard the fact as ‘proved’ the party against whom presumption is drawn has the right to adduce evidence to dislodge or rebut the presumption.

Black’s Law Dictionary explains the term ‘Rebut’ as under:

“When a plaintiff in an action produces evidence which raises a presumption of the defendant’s liability, and the defendant adduces evidence which shows that the presumption is ill – founded, he is said to “rebut it.”

The main provision in the Bharatiya Sakshya Adhiniyam which permits the court to draw presumption of fact is Section 119 (S.114 of the Evidence Act), which along with illustrations reads as under:

  1. (1) The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations. The Court may presume that—

(a) a man who is in possession of stolen goods soon, after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(c) a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

(d) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) judicial and official acts have been regularly performed;

(f) the common course of business has been followed in particular cases;

(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

(i) when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

(2) The Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:—

  • as to Illustration (a)—a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
  • as to Illustration (b)—A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
  • as to Illustration (b)—a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
  • as to Illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A’s influence;
  • as to Illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
  • as to Illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
  • as to Illustration (f)—the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
  • as to Illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
  • as to Illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
  • as to Illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

In addition to the above Section 119, sections 88, 89, 92, 117 (section 114, Sections 86 to 88, 90, 113A of the Evidence Act) deal with other instances of presumption of fact.

Under section 119, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to –

  1. the common course of natural events,
  2. human conduct, and
  3. public and private business,

in their relation to the facts of the particular case.

Section 119 provides the Bharatiya Sakshya Adhiniyam ( section 114 of the Evidence act) specific illustrations from (a) to (i) where court could draw presumptions. Now let us see the illustrations one by one along with a few case laws.

2. 119, illustration (a) – Case Law

Illustration (a) reads as:

The Court may presume–

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

3. Corpus and the Animus of Possession Must Be Established – Illustration (a) of S 119

In Baladev Khes and another v State of Orissa 1992 CriLJ 2059, Orissa High Court analysed illustration (a) and observed:

So as to draw the presumption under S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) … it is necessary that the prosecution discharges the initial onus on it that the person charged with the offence had possession of the stolen goods soon after the theft. Thus the two essential elements necessary to be established are his possession of the articles and that the possession is soon after the incident. So far as the possession is concerned, it implicitly suggests exclusive possession of the charged person, i.e. to the exclusion of all others. Possession indicates both physical as well as a mental act so that the person who possesses has the consciousness of physical possession over the property. In other words, the two elements of possession, i.e. both the corpus and the animus, are to be established by the prosecution before the presumption can be drawn. So far as concealment of the properties by the charged persons is concerned, it must be of such character that the accused had concealed the property in a manner so as to get exclusive control over the same with reasonable expectation that others would not be able to interfere with his possession. It follows that the place of concealment may not be necessarily his own house or land but may be a place otherwise accessible to the public, but if the concealment has been done in such manner so as to shield the articles from the public gaze and so hide it as to gain exclusive knowledge of the same, the element of possession can be taken to have been established (See also  In re Kirukku Mayandi AIR 1958 Mad. 384 : 1958 CriLJ 1042) 

4. Importance of Time Factor in 119 illustration  (a)

In Tulasiram Kanu v State AIR 1954 SC 1: 1954 CriLJ 225 (M. H. Kania, C. J. I. ; M. Patanjali Sastri; S. R. Das) , the Supreme Court observed:

The important factor which appear to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn under S.114, illu. (a), Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of a person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption may not be permitted to be drawn having regard to the circumstances of the case.

In Virumal Mulchand and Another v. State of Gujarat AIR 1974 SC 334: 1974 (3) SCC 565, the Supreme Court observed:

 The appellants were found in possession of the goods within two days of the theft. In the circumstances, illustration ‘a’ to S.114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) applies directly to the facts of the present case. According to that illustration, if a man is found in possession of stolen goods soon after the theft, the court may presume that he is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. As already mentioned, the appellants have not been able to furnish any explanation for the possession of the stolen goods.

5. Recovery of Stolen Property – Whether Presumption Could be drawn of Theft / Robbery and Murder – Cautious Approach is Required

In Sanwat Khan and Another v. State of Rajasthan AIR 1956 SC 54:1956 CriLJ 150 (Mehr Chand Mahajan; S. R. Das; N. H. Bhagwati, JJ), the Supreme Court observed:

In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof.

State of Orissa v Bishnu Charan Mudul 1985 CriLJ 1573, Orissa High Court observed:

The articles had been recovered and seized from the possession of this appellant not long after the occurrence. Under S.114(a) of the Evidence Act, a presumption can be drawn not only with regard to the commission of an offence of theft, but also regarding the commission of murder or dacoity in appropriate cases from the fact of recovery of articles belonging to the deceased who had been murdered or belonging to the person in respect of whose articles dacoity has been committed. In this connection, reference may be made to the principles laid down in AIR 1971 SC 196: 1971 CriLJ 260, Shivappa v. State of Mysore.

Prem Bahadur Rai v State of Sikkim, 1978 CriLJ 945 a division bench of Sikkim High Court observed:

“…the law deducible from S.114. Illustration (a) of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) is fairly well settled and the law appears to be, as settled by a series of authorities, that – (a) under Illustration (a) to S.114 of the Indian Evidence Act, the Court may, but not that it must, make the presumption therein mentioned; (b) even if the Court makes the presumption under Illustration (a) to S.114 of the Indian Evidence Act, (Section 119 of the Bharatiya Sakshya Adhiniyam) the onus on the general issue is still on the prosecution, and (c) it is not the law that if the accused fails to account for his possession of the goods said to be stolen, he must be convicted, if the other facts on record do not predicate his guilt. (See Division Bench decision of the Calcutta High Court in Keshab Deo Bhagat v. Emperor, AIR 1945 Cal. 93: 1946 CriLJ 465 where the law on the point was summarised by S. R. Das, J. (as his Lordship then was, Lodge, J. concurring with him).

In Balla v. State, AIR 1958 Madhya Pradesh 192: 1958 CriLJ 902 Madhya Pradesh High Court held:

“A dead body is not a person. Removal of ornaments from a dead body is not taking ornament out of the possession of a person”.

6. 119, illustration (b) – Case Law

Illustration (b) reads as:

The Court may presume–

xxx

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

7. Accomplice’s Evidence Section 138 and 119 ( Section 133 and 114, illustration (b))

An accomplice is a guilty associate or partner in the commission of crime. He is a “Participiscriminis”

Section 138 of the Bharatiya Sakshya Adhiniyam (Section 133 of the Evidence Act) provides that “An accomplice shall be a competent witness against an accused person”.

Sections 343 and 344 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Sections 306 and 307 of the Criminal Procedure Code) provides for tendering pardon to a person supposed to have been directly or indirectly concerned in or privy to an offence. As per S.306 CrPC Pardon may be granted with respect to (a) any offence triable exclusively by the Court of Session and (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

Pardon is granted with a view to obtaining the evidence of such accomplice against his associates in crime. When pardon is accepted by the accomplice, he becomes an approver.

The law relating to the credibility of the evidence of the Accomplice/Approver is dealt with in Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam (Sections 133 and 114 illustration (b) of the Evidence Act).

Section 138 of the Bharatiya Sakshya Adhiniyam (S.133 of the Evidence Act) in positive terms declares that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Whereas illustration (b) to Section 119 of the Bharatiya Sakshya Adhiniyam (S.114 of the Evidence Act), marks a caution on the credibility of the evidence of the accomplice. Relevant portion of Section 119 reads as follows:

The Court may presume–

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

Apparently the above two provisions lay down somewhat contradictory assertions. Section 138 makes it clear that the evidence of an accomplice is substantive evidence and conviction solely on its basis is not illegal. S.119(b) is an illustration of an optional presumption of fact which authorizes the Court to draw a presumption as above. It is rather a rule of prudence. Regarding the interplay between S.133 and S.114(b) of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) and the requirement and nature of corroboration the Privy Council in Bhubon Sahu v. The King (AIR 1949 PC 257) observed as under:

“..the rule requiring corroboration for acting upon the evidence of an accomplice is a rule of prudence. But the rule of prudence assumes great significance when its reliability on the touchstone of credibility is examined. If it is found credible and cogent, the Court can record a conviction even on the uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony of an accomplice, the proposition that an accomplice must be corroborated does not mean that there must be cumulative or independent testimony to the same facts to which he has testified. At the same time, the presumption available under S.114 of the Evidence Act (Sections 119 (b) of the Bharatiya Sakshya Adhiniyam) is of significance. It says that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in “material particulars”.”

In Sarwan Singh v. State of Punjab, AIR 1957 SC 637, a 3 judges bench of the Supreme Court laid down the theory of “double test” in the scrutiny of the evidence of an approver, in this regard the Supreme Court held:

“There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars………. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver.”

In Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420, the Supreme Court observed:

“…if we read S.133 of the Evidence Act with illustration (b) of S.114 of the Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S.133 illustration (b) to S.114 of the Evidence Act lays down “that an accomplice is unworthy of credit, unless he is corroborated in material particulars”. A combined reading of the two provisions that is S.133 and illustration (b) of S.114 of Evidence Act (Sections 138 and 119 (b) of the Bharatiya Sakshya Adhiniyam) go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) a conviction is “not illegal or in other words not unlawful ” merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S.114 of the Evidence Act (119 (b) of the Bharatiya Sakshya Adhiniyam) with a view to emphasise that the rule contained therein as well as in S.133 (Sections 138 of the Bharatiya Sakshya Adhiniyam) are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature.”

The law on the above lines has been reiterated in many subsequent decisions including, Francis Stanly v. Intelligence Officer N.C.B, AIR 2007 SC 794 and Sitaram v. State of Jharkand AIR 2008 SC 391 where in the Court held as follows:

“The Statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) to S.114 of the Evidence Act ( Sections 119 of the Bharatiya Sakshya Adhiniyam) strikes a note of warning cautioning the Court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. In other words, the rule is that the necessity of corroboration is a matter of prudence except when it is safe to dispense with such corroboration must be clearly present in the mind of the Judge.”

The Court further held that

“Although S.114 illustration (b) (Section 119 (b)of the Bharatiya Sakshya Adhiniyam) provides that the Court may presume that the evidence of an accomplice is unworthy of credit unless corroborated, “May” is not must and no decision of Court can make it must. The Court is not obliged to hold that he is unworthy of credit. It ultimately depends upon the Court’s view as to the credibility of evidence tendered by an accomplice.”

 Hidayatulla, J. sounded the note of caution in Haroom Haji v. State of Maharashtra (AIR 1968 SC 832) thus:

“This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to almost the” standing of a rule of law”. A Constitution Bench of the Supreme Court has laid down in State v. Basawan Singh (AIR 1958 SC 500) that even in respect of an accomplice all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. “Corroboration need not be by direct evidence that the accused committed the crime, it is sufficient even though it is merely circumstantial evidence…….”.

The same principle has been reiterated by the Supreme Court in Jadav v. State (AIR 1966 SC 821) and many other subsequent decisions.

In Somasundaram @ Somu v. State rep. by the Deputy Commissioner of Police AIR 2020 SC 3327: 2020 (7) SCC 722, a three judges bench of the Supreme Court comprising, Rohinton F. Nariman; K. M. Joseph; V. Ramasubramanian, JJ, surveying through the precedents laid down as under:

To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows:

The combined result of S.133 read with illustration (b) to S.114 of Evidence Act (Sections 138 read with 119 (b) of the Bharatiya Sakshya Adhiniyam) is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused

8. 119, illustration (c) – Case Law

Illustration (c) reads as:

The Court may presume–

xxx

(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;

This presumption should be read along with presumptions of law under Section 118 of the Negotiable Instruments Act. These are exceptions to the rule that consideration for a contract should be pleaded and proved. These presumptions with respect to Negotiable Instruments are of course rebuttable. Presumption under illustration (c) of S.119 (S. 114 of Evidence Act) is a presumption of fact and the court is not bound to draw the presumption whereas presumption under S.118(a) is a presumption of law and the court is bound to draw the presumption.

In, Official Receiver, Kanpur and Another v. Abdul Shakoor and Others AIR 1965 SC 920 (P. B. Gajendragadkar, C. J. I.; J. C. Shah; N. Rajagopala Ayyangar, JJ.), the Supreme Court observed:

“S.114 of the Indian Evidence Act (Section 119 (b)of the Bharatiya Sakshya Adhiniyam) authorises the Court to 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. Under the third illustration of S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) the Court may presume that a bill of exchange accepted or endorsed was accepted for good consideration. But the section provides, that the Court shall also have regard to other material facts in considering whether the maxim does or does not apply in the particular case before it, it is therefore open to the Court to consider in its proper setting, the fact that the drawer of a bill of exchange was a man of business, and the acceptor was a young and ignorant person completely under the former’s influence. This is one illustrative fact which the Court may consider in raising the presumption. There may be other circumstances which may also justify the Court in declining to raise the presumption. Mr. Pathak for the respondents urged that the Indian Evidence Act was enacted in 1872 and the Negotiable Instruments Act having been enacted in 1881, and as the two provisions conflict or overlap, S.118 of the Negotiable Instruments Act must supersede S.114 of the Evidence Act(Section 119 of the Bharatiya Sakshya Adhiniyam). We are unable to accept that contention. Undoubtedly S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam)is a general provision which enables the Court to presume, though not obliged to do so, that a bill of exchange or a promissory note was founded on a good consideration. S.118 of the Negotiable Instruments Act, however, enacts a special rule of evidence which operates between parties to the instrument of persons claiming under them in a suit or proceeding relating to the bill of exchange and does not affect the rule contained in S. 114 of the Evidence Ac(Section 119 of the Bharatiya Sakshya Adhiniyam)t, in cases not falling within S.118 of the Negotiable Instruments Act.”

9. 119, illustration (d)

Illustration (d) reads as:

The Court may presume–

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;

In Salem Municipality v P Kumar and Others, 2019 (13) SCC 307, the Supreme Court observed:

It is no doubt true that under S.114 of the Evidence Act (Section 119 (b)of the Bharatiya Sakshya Adhiniyam), there is a presumption of continuance of a state of affairs once shown to have prevailed. It is open to the court under S.114 (Section 119 (b)of the Bharatiya Sakshya Adhiniyam) to presume the continuity of any fact once shown to have prevailed. Such presumption of continuity can be drawn not only forward but backward also. Court can presume that such state of affairs might have existed in past also unless discontinuity is proved. In the instant case, it is not shown by any affirmative evidence on record in the form of revenue record that the plaintiff’s vendor was in possession on the date of abolition and thereafter plaintiff remained in possession at any point of time. This Court has observed in Sir Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi and Ors., AIR 1973 SC 1299 that by stray entry no such presumption arises.

10. 119, illustration (e) & (f)

Illustrations (e) and (f) read as:

The Court may presume–

xxx

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

‘Omnia presumption right solemnitur esse acta’ is a latin legal maxim,

which means all acts are presumed to have been done rightly and regularly. This principle is embodied in Illustrations (e) and (f) of section 114 of the Evidence Act(Section 119 of the Bharatiya Sakshya Adhiniyam).

The presumption under Illustration (e) to S.114, Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), is that judicial and official acts have been regularly performed. “Regularly performed” can only mean performed in accordance with form and procedure. Generally, it cannot be implied that the officer or the Judge had authority to perform an act which is not ordinarily within his competence.

Presumption arises on the premises that generally public officers perform his duties promptly. This presumption could be dislodged / rebutted with cogent contra evidence.

11. 119, illustration (e) Presumption Applies to All Official Acts

This presumption applies in the case acts of Revenue officers, Registrar of Documents, Public Analysts, Police officers, and all such other officers (See Sonawati v Sri Ram AIR 1968 SC 466, Krishna Kumari v State of Haryana. AIR 1999 SC 854, Babulal Hargovindas v State of Gujarat, AIR 1971 SC 1277)

In Ratanlal Agarwal Jorhat v State of Assam, (U. L. Bhat, C. J.; R. K. Manisana; D. N. Baruah) (Guwahati High Court), in the context of a food adulteration case, it was held:

The Local (Health) Authority is a public official. The act of the Local (Health) Authority in despatching a copy of the report with necessary intimation or information is an official act. When the act has been shown to have been performed, it is open to the court in its discretion to draw the presumption that the act has been performed regularly. There is acceptable evidence to show that the Local (Health) Authority has forwarded the document, by virtue of Illustration (v) to S. 114 of the Indian Evidence Act, 1872(Section 119 of the Bharatiya Sakshya Adhiniyam), the court may presume that it was forwarded regularly, that is, as required in S. 13(2) of the Act and R.9 – A of the Rules. There can also be no difficulty in invoking S. 27 of the General Clauses Act, 1897 in appropriate cases to draw appropriate presumption. (See also the five Judges bench judgment of the Kerala High Court in Mahtukutty v. State of Kerala, 1987 (2) FAC 293 : 1988 CriLJ 898 and State of Himachal Pradesh v Narendra Kumar , AIR 2004 SC 2711)

In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey and Others AIR 1966 SC 1931 (K. Subba Rao; V. Ramaswami, JJ), the Supreme Court observed:

Exhibit 1 purports to have been given in favour of Brown Wood, the then Deputy Commissioner of Santhal Pargana, on behalf of the Court of Wards representing the Rohini Ghatwali Estate for the purpose of erecting dwelling houses under S.1 and 2 of Act V of 1859. The only flaw pointed out by the learned counsel is that there is nothing in the Act to indicate that a Deputy Commissioner can grant a lease of a Ghatwali land on behalf of the Court of Wards. But the document was ex facie executed by the Deputy Commissioner on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee and his successors in interest have been in possession of the lands all these years. In such circumstances the presumption under S.114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) can readily be drawn. Under that section;

“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.” Under illustration (e) the Court may presume that judicial and official acts have been regularly performed. If an official act is proved to have been done, it will be presumed to have been regularly done. In this case it has been proved that the lease was executed on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the aid lands for many years. Indeed, the plaintiff in the plaints does not allege that the Deputy Commissioner was not legally authorised to act on behalf of the Court of Wards: his only objection is that the document was not countersigned by the Commissioner of Bhagalpur Division. But that condition was only applicable to a lease executed by a Ghatwal and not by the Court of Wards. In the circumstances, we think it is a fit case where the Court can reasonably presume that the Deputy Commissioner, under appropriate rules, was duly authorised to act on behalf of the Court of Wards.

In, R S Nayak v A R Antulay, 1986 (2) SCC 716 : 1986 SCC (Cri) 256 : AIR 1986 SC 2045 : 1986 CriLJ 1922, the Supreme Court held:

“…there must be an assumption that whatever is published in the Government owned paper correctly represents the actual state, of affairs relating to Governmental business until the same is successfully challenged and the real state of affairs is shown to be different from what is stated in the Government publication.” (See Also Harpal Singh v. State of Himachal Pradesh, 1981 (1) SCC 560: (AIR 1981 SC 361)).

12. Illustration (e) to S.119, Equally Applies to Police Officers

The Presumption that an officer acts honestly, applies equally to a police officer, and it is not a judicial approach to distrust or suspect them without credible grounds. (See Devender Pal Singh v State of N C T Delhi, AIR 2002 SC 1661, Karamjith Singh v State (Delhi Administration) AIR 2003 SC 1311, Aher Raj Khima v State of Saurashtra AIR 1956 SC 217)

13. Presumption of Genuineness of Registered Documents

There is a long line of decisions holding that registered document carries with it a presumption that it was validly executed and the burden shifts to the party who challenges the genuineness of the transaction. The presumption under Illustration (e) to S.114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) is available to a registered document.

Following are some of the Supreme Court decisions, which held that the registered document carries with it a presumption that it was validly executed:

In Prem Singh v Birbal, AIR 2006 SC 3608, the Supreme Court Observed:

“There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption”.

In Abdul Rahim v Abdul Zabar, AIR 2010 SC 211, the Supreme Court Observed:

Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed.

(See also Piara v Fatnu AIR 1929 Lah 711)

In Jamila Begum v Shami Mohd AIR 2019 SC 72 the Supreme Court Observed:

A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law.

In Rattan Singh and Others v. Nirmal Gill and Others AIR 2021 SC 899, the Supreme Court relied on Prem Singh v Birbal and reiterated the above proposition.

Presumption of validity and correctness of registered document was again upheld in Majumder v Dipak Kumar Saha, AIR 2023 SC 506 and the judgment was authored by Justice B V Nagaratna.

14. The Registration Of Documents Does Not Per se or Ipso Facto Absolve Proof Of Execution of Will

It is a settled proposition that the registration of Will Per se or Ipso Facto absolve proof of execution of Will or other document required to be attested by law.

In Bagat Ram and another v Suresh and others, 2003 (12) SCC 35: AIR 2004 SC 436, the Supreme Court inter alia considered the issue   Whether registration of a Will or codicil dispenses with the need of proving the execution and attestation of Will in the manner required by S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam)? The Court held:

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam). Under S.58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

(1)  the date, hour and place of presentation of the document for registration;

(2) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;

(3) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and

(4) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

 A presumption by reference to S.114 [Illustration (e)) of the Evidence Act (Section 119 (illustration e) of the Bharatiya Sakshya Adhiniyam) shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation, within the meaning of S.63(c) of the Succession Act or S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only (see Kunwar Surendra Bahadur Singh v. Thakur Behari Singh (AIR 1939 PC 117)). On account of registration of a document, including a Will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

Again in, Om Prakash (Dead) Thr. His Lrs. v. Shanti Devi and Others AIR 2015 SC 976: 2015 (4) SCC 601, the Supreme Court observed:

S.68 (Section 67 of the Bharatiya Sakshya Adhiniyam) prescribes that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. S.123 of the Transfer of Property Act, 1882 mandates that a Gift Deed pertaining to immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. S.17 of the Registration Act, 1908 also requires that instruments of gift of immovable property “shall be registered.” S.34, thereafter, requires the executants or their authorised representatives of the document executed for registration appear before the registering officer. However, the witnesses to a document need not also be the witnesses to its registration. The pandect being Part X, comprising S.47 to 50 of the Registration Act would next be required to be adverted to. S.47 adumbrates that the registered document will take effect from the date of its execution. S.48 is indeed significant in that it clarifies that a registered document will probatively prevail over oral agreements, except for an agreement or declaration which does not itself mandatorily require registration provided the oral agreement is accompanied by delivery of possession. The preeminent S.49 declares that if any document despite requiring registration is not so done it shall not be received in evidence or attain any legal efficacy, except in the context of a suit for specific performance, or if it is intended to be used to prove any collateral transaction. We have ventured into this lengthy and arguably avoidable analysis to accentuate on two aspects – (a) the imperative necessity to produce in evidence a written instrument where it exists; and (b) that the registration of documents does not per se, ipso facto, render it impervious to challenge or and make its reception automatic in curial proceedings.

15. Presumption Of Truth Of Revenue Record

In Vishwasrao Satwarao Naik and Others v. State of Maharashtra 2018 (6) SCC 580 the Supreme Court observed:

Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption.

16. Probative Value of Entries in Public Record

Section 29 of the Bharatiya Sakshya Adhiniyam (Section 35 of the Evidence Act) deals with Relevancy of entry in public record made in performance of official duty.

Section 29 reads as follows:

An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record or an electronic record is kept, is itself a relevant fact.

Relevancy and Admissibility, doesn’t mean that the Court would accept all relevant and admissible piece of Evidence as credible/reliable.  Genuineness, veracity or reliability or value of the evidence is seen by the Court only after it passes the test of relevancy and admissibility, this is the realm of Appreciation of Evidence. The Court would decide how much weight is to be attributed to such relevant evidence by the process of appreciation of evidence.

For instance, a given document may be admissible under Section 29 of the Bharatiya Sakshya Adhiniyam (S.35 of the Evidence Act) as entry in public record made in performance of official duty but the Court is still not barred from verifying the authenticity of the entries made therein.

Section 29 deals with relevancy and not probative value. Probative value depends on the facts and circumstances of each case. Generally, it must be taken along with other evidence. The Court generally presumes that the public officer did his duty duly and based the entries on materials the accuracy of which he was satisfied. Basis on which entry was made would be relevant in considering its probative value. (See Shyam Prathap Singh v Collector of Etawah, AIR 1946 PC 103)

The reason why entry made by a public servant in a public or other official book, register or record stating a fact in issue or a relevant fact has been made relevant, is that, when a public servant makes it himself, in the discharge of his official duty, the probability of its being truly and correctly recorded is high. It is the public duty of a person who keeps the register to make such entries after satisfying himself of the truth and that entries in register of birth, death or marriage are at least prima facie, though they may not always be conclusive evidence. It is not always necessary to prove who made the entries and what was the source of his information. [see Chellammal v. Angamuthu and others, 1978 CriLJ 752 (Mad)]

In Madan Mohan Singh and others v. Rajni Kant and another, AIR 2010 SC 2933 : 2010 AIR SCW 4932, it has been held as under;

…..a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in Ram Prasad Sharma v. State of Bihar, AIR 1970 SC 326; Ram Murti v. State of Haryana, AIR 1970 SC 1029; Dayaram and Ors. v. Dawalatshah and Anr., AIR 1971 SC 681; Harpal Singh and Anr. v. State of Himachal Pradesh, AIR 1981 SC 361; Ravinder Singh Gorkhi v. State of U.P. 2006 (5) SCC 584: AIR 2006 SC 2157: 2006 AIR SCW 2648; Babloo Pasi v. State of Jharkhand and Anr., 2008 (13) SCC 133: AIR 2009 SC 314: 2008 AIR SCW 7332; Desh Raj v. Bodh Raj, AIR 2008 SC 632 and Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and Anr., 2009 (6) SCC 681: AIR 2009 SC 2805: 2009 AIR SCW 4261. In these cases, it has been held that even if the entry was made in an official record by the concerned official in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. “

In Radha Krishna Singh v State of Bihar, AIR 1983 SC 684, while dealing with an old revenue document which was held admissible under Section 35 of the Evidence Act (Section 29 of the Bharatiya Sakshya Adhiniyam), Justice S. Murtaza Fazal Ali, observed:

We may not be understood, while holding that Ex. J. is admissible, to mean that all its recitals are correct or that it has very great probative value merely because it happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.

In short Certified Copy of public document does not absolutely establish the truth of the contents of the document, though weight could be attached to it considering the manner in which it is made and, on the facts, and circumstances of particular cases.

17. 119 illustration  (f)

The Court may presume–

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(f) that the common course of business has been followed in particular cases;

This presumption of course of business having been followed applies more strongly in the case of public officers. This illustration has to be read with Section 14 of the Bharatiya Sakshya Adhiniyam (S.16 of the Evidence Act), which provides that when there is a question whether a particular act was done, the existence of a common course of business according to which it naturally would have been done is a relevant fact. S. 14 deals with relevancy and illustration (f) is presumption of fact.

18. Presumption Relating to Due Service/Delivery in the Case of Letters Issued by Certificate of Posting and Registered Post

Now it is settled that by virtue of S.27 of the General Clauses Act and Illustration (f) to S. 114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), when a letter is shown to have been properly addressed and duly posted and is shown to have not been returned to the Dead Letter Office, it is presumed that the letter has been delivered to the addressee. This presumption is rebuttable.

In Har Charan Singh v. Shiv Rani and Others 1981 (2) SCC 535: AIR 1981 SC 1284, (V. D. Tulzapurkar; D. A. Desai; A. P. Sen, JJ) the Supreme Court observed:

S.27 of the General Clauses Act, 1897 deals with the topic – ‘Meaning of service by post’ and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document. and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under. Illustration (f) to S. 114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) where under it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under S. 27 of the General Clauses Act as well as under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under S.27 of the General Clauses Act as well as under S. 114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam)  is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under S.27 of the General Clauses Act 1897 and S. 114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam).

( See also Green View Radio Service v Laxmibai Ramji AIR 1990 SC 2156, Puwada Venkateshwara Rao v C V Ramana AIR 1976 SC 869, D Vinod Shivappa v Nanda Belliappa, AIR 2006 SC 2179, Alavi Haji v Palapetty Muhammed, (2007) 6 SCC 555. )

19. 119, illustration (g) & (h)

Illustrations (g) and (h) read as:

The Court may presume–

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(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

One fundamental principle in Law of Evidence is that best available evidence should be produced before the court. If a party purposely withholds evidence, in appropriate cases the court may draw adverse inference.

20. Parties Cannot Withhold Best Evidence

The Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 (A), observed:

“A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough – they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordships’ opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”

This rule was again reiterated in Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 PC 95(B).

This view was quoted with approval by the Supreme Court in Hiralal and others v Badkulal and others AIR 1953 SC 225

In the case of Gopal Krishnaji v. Mohd. Haji Latif, AIR 1968 SC 1413, it is held that even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue. It is not in our opinion a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court, the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 (K. Subba Rao; Raghubar Dayal; J. R. Mudholkar, JJ), a 3 Judges bench of the Supreme Court observed as follows:

Under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), “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.” Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under S.118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact.

The proposition in Kundan Lal Rallaram v. Custodian, Evacuee Property, was quoted with approval in M S Narayana Menon Alias Mani v State of Kerala and Another, AIR 2006 SC 3366

21. Withholding of Material Witness – When Adverse Inference Can Be Drawn

Generally, it is the prosecution to decide which all witnesses are to be examined. If the Court forms an opinion that material witness is withheld from examination by the prosecution purposely to mask the truth, in appropriate cases court would draw adverse inference. If it is indicative of the fact that probably the occurrence did not take place as put up by the prosecution or the prosecution intents to cover up some fact, the court would be justified in drawing adverse inference. Adverse inference cannot be drawn in a mechanical way.

A witness whose evidence is essential for unfolding the truth of the case further, is a material witness.

To draw adverse inference under s 114(g) (Section 119(g) of the Bharatiya Sakshya Adhiniyam), the prosecution must have deliberately withheld material witnesses from the Court. But, at the same time, it should be borne in mind that the prosecution is not bound to multiply witnesses after witnesses on the very same point.

Case Law

In Bava Hajee Hamsa v. State of Kerala, AIR 1974 SC 902: 1974 CriLJ 755 it is laid down as follows:

“It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised.”

In Masalti v. State of U. P., AIR 1965 SC 202: 1965 (1) CriLJ 226, the Supreme Court laid down as follows:

“It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he had been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice.”

(See also Darya Singh v. State of Punjab, AIR 1965 SC 328: 1966 (1) CriLJ 350)

In State of U. P. v. Jagoo, AIR 1971 SC 1586: 1971 CriLJ 1173, the Supreme Court held that production of a witness for cross – examination by the accused cannot be prevented by merely alleging that a witness has been won over. The Prosecution must call him as a witness so that the accused could cross – examine him whenever such witness is a material witness.

Who is a material witness has been dealt with by the Supreme Court in Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51: 1954 CriLJ 338 and in Bakhshish Singh v. State of Punjab, AIR 1957 SC 904: 1957 CriLJ 1459. It is held therein that a witness whose evidence is essential for unfolding the truth of the case further, is a material witness.

Whenever there is more than one eye – witness, it is for the prosecution to choose its witnesses and decide to examine whom and decide how many to be examined and the Court cannot direct the prosecution to examine such and such witnesses or such and such number of eye – witnesses.

In Sarwan Singh v. State of Punjab, AIR 1976 SC 2304: 1976 CriLJ 1757 the Supreme Court held thus:

“It is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the Court that the witnesses, who had been withheld, were eye – witnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than quantity of the evidence that matters.”

“The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The Court cannot compel the prosecution to examine one witness or the other as its witness.”

In Harpal Singh v Devinder Singh AIR 1997 SC 2914: 1997 CriLJ 3561

The Supreme Court speaking through Justice K. T Thomas reiterated the law as under:

“In Darya Singh v. State of Punjab, AIR 1965 SC 328, a Bench of three Judges (Gajendragadkar, Wanchoo and Dasgupta, JJ.) has observed that in murder cases it is primarily for the prosecutor to decide which witness he should examine in order to unfold the prosecution story. “If a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient from the witness box.” The same view has been followed in a number of cases. [vide Masalti v. State of U.P., AIR 1965 SC 202, by a Bench of four Judges (Gajendragadkar, C. J., Wanchoo, Dasgupta and Raghubar Dayal, JJ.); Gurmej Singh v. State of Punjab, AIR 1992 SC 214, by a bench of three Judges; Rai Saheb v. State of Haryana, 1994 SCC (Cri) 239; Rajbir v. State of Haryana, 1996 SCC (Cri) 178; Girish Yadav v. State of M.P., 1996 SCC (Cri) 552; Ram Sanjiwan Singh v. State of Bihar, 1996 SCC (Cri) 701 : (1996 AIR SCW 2300); Malkan Singh v. State of U.P., 1995 SCC (Cri) 893 : (1994 AIR SCW 880)].

  No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. We do not see any justification, in this case, in drawing such an adverse inference due to non-examination of Randeep Rana. [vide State of Karnataka v. Moin Patel, 1996 SCC (Cri) 632: (1996 AIR SCW 1411)].

In Dalbir Kaur and another v State of Punjab, AIR 1977 SC 472: 1977 CriLJ 273, (A. C. Gupta; S. Murtaza Fazal Ali, JJ.) the Supreme Court distinguished Habeeb Mohammad v. The State of Hyderabad, and held as under:

Strong reliance was placed by counsel for the appellants on the decision of this Court in Habeeb Mohammad v. The State of Hyderabad. 1954 SCR 475 = (AIR 1954 SC 51). In that case what had happened was that the only witness examined to prove the firing by the accused was a police Jamadar whereas a very senior police officer who is said to be present at the time when the accused gave orders for firing was not produced and what was more was that no explanation for the omission to examine this witness was given. In view of these circumstances and the other infirmities appearing in that case generally, this Court held that such an omission to produce a material witness was sufficient to throw doubt on the prosecution case. In this connection this Court observed thus:

“In this situation it seems to us that Biabani who was a top-ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth ……… In our opinion, not only does an adverse inference arise against the prosecution case from his non production as a witness in view of illustration (g) to S.114 of the Indian Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial.”

The facts of that case are clearly distinguishable from the facts of the present case. To begin with, in that case, excepting the interested witness the police Jamadar there was no other eye witness to support the occurrence. Secondly, this Court clarified its observations that an adverse inference could be drawn only if no explanation for the non-examination was given or if no allegation was made that the witness if produced would not speak the truth. Thirdly, it appears that although an application was made to the Trial Court for examination of the witness concerned under S.540 of the Code of Criminal Procedure, the Court did not accede to this prayer. In the instant case the prosecution has given very reasonable explanation for not examining these witnesses and there is nothing to show that the accused filed any application before the Trial Court or even before the High Court for examining these witnesses as the Court witnesses nor did they choose to examine them as the defence witnesses. The Public Prosecutor in his statement before the Sessions Judge clearly stated thus at page 57 of Paper Book No. II:

“I give up Inder Singh and Sandhu Singh PWs as the uncles of Dalbir Singh, accused, Mohinder Singh as maternal uncle of Dalbir Singh I also give up Mukhtar Singh, Nazir Masih, Pursan Masih, Chanan Singh and Ravinder Singh PWs as having been won over by the accused. They are not likely to speak the truth and they are present in Court.”

The reasons given by the Public Prosecutor are quite understandable, because the, witnesses had been given up either on the ground that they were relatives of the appellant Dalbir Singh or that they had been won over by accused and were not likely to speak the truth. This statement of the Public Prosecutor which was recorded by the Trial Court on June 3, 1974 clearly takes the case out of the ambit of the ratio of the decision in Habeeb Mohamad’s case (supra).

22. When A Party To The Suit Does Not Appear As A Witness – Adverse Inference

When a party to the suit does not offer himself as a witness the court may in appropriate cases drew adverse inference. It is the duty of the party who is directly well conversant with the facts of the case to give evidence.  In this regard the Supreme Court in Vidhyadhar v Manikrao and another, 1999 (3) SCC 573: AIR 1999 SC 1441 observed:

Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh (AIR 1927 PC 230 : 32 CWN 119). This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh (AIR 1930 Lah. 1 : ILR 11 Lah. 142) and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh (AIR 1931 Bom 97 : 32 Bom LR 924). The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat (AIR 1970 MP 225 : 1970 MPLI 586) also followed the Privy Council decision in Sardar Gurbakhsh Singh case (AIR 1927 PC 230 : 32 CWN 119).

The Allahabad High Court in Arjun Singh v. Virendra Nath (AIR 1971 All 29) held that if a party abstains from entering the witness box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand (AIR 1974 P&H 7) drew a presumption under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), 1872 against a party who did not enter the witness box.

But when the burden of proof is entirely on the opposite party failure to give evidence cannot give rise to adverse inference.

23. 119, illustration (i)

Illustration (i) which is self-explanatory  reads as:

The Court may presume–

xxx

(i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

In Citi Bank N A v Standard Charter Bank and others 2004 (1) SCC 12: AIR 2003 SC 4630, the Supreme Court relied on the decision of the Privy Council in Chaudhri Mohammad Mehdi Hasan Khan v. Sri Mandir Das, [L.R. 39 Indian Appeals 184, and observed:

Further the return of two BRs (Bankers Receipts) with the stamp of the SCB on its reverse duly signed by the officer of the SCB also amounts to discharge of the BRs. This was the mode of discharge of BRs. The discharged BRs being in possession of the Citi Bank would raise a presumption in law under S.114 illustration (i) of the Evidence Act, 1872 (Section 119 of the Bharatiya Sakshya Adhiniyam), that the BRs stood duly discharged. S.114 provides 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. Illustration (i) provides that Court may presume that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. The two BRs were in the custody of the Citi Bank. The possession of two BRs with the Citi Bank would raise a rebuttable presumption of discharge of the two BRs. Onus to rebut the presumption was upon the SCB. SCB has failed to rebut the presumption by leading any evidence that the obligation under the two BRs did not stand discharged.

(See also Mahendra Mohanlal Mistry v M/S Mehta Mohanlal Mathurdas AIR 1988 Guj. 110)

24. Presumption Under S.119 Are Not Confined To Instances Provided In Illustrations (a) to (i)

Illustrations (a) to (i) are merely illustration and are not therefore exhaustive of S.119 (S 114 of the Evidence Act). 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.

25. Presumption of Marriage in Long Cohabitation

From the times of Privy Council, in appropriate cases the courts in India have invoked section 114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) and drawn presumption in favour of valid marriage man and a woman had lived together for long years as husband and wife.

In Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil Valsan and Others AIR 2022 SC 2841, Supreme Court held:

It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam). Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place. (See also Andrahennedige Dinohamy and Anothr v. Wijetunge Liyanapatabendige Balahamy and Others, AIR 1927 PC 185, Mohabbat Ali Khan v. Mohd. Ibrahim Khan, AIR 1929 PC 135, Badri Prasad v. Dy. Director of Consolidation and Others, (1978) 3 SCC 527:AIR 1978 SC 1557,S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others, (1994) 1 SCC 460 : AIR 1994 SC 133, Gokul Chand v. Parvin Kumari – AIR 1952 231, ) Tulsa and Others v. Durghatiya and Others, (2008) 4 SCC 520 : AIR 2008 SC 1193; Challamma v. Tilaga and Others, (2009) 9 SCC 299, Madan Mohan Singh and Others v. Rajni Kant and Another, (2010) 9 SCC 209 : AIR 2010 SC 2933 : and Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755: AIR 2014 SC 309.)

26. Drawing Inference of Rate / Amount of Use and Occupation Charges by the Court – Permissible Under S 119 of the Bharatiya Sakshya Adhiniyam

In Dayanand Rajan and another v Ramlal Khattar AIR 2018 Del. 104,  Delhi High Court, speaking through Justice Valmiki J. Mehta,  held:

Learned counsel for the appellant no.1 qua this appeal further argued that the trial court in the impugned judgment has wrongly allowed a sum of Rs.2000/- as mesne profits / damages although no evidence was led, but this argument in my opinion is misconceived because though no doubt evidence has not been led, trial court yet was justified in the facts of this case in drawing an inference of rate / amount of use and occupation charges of two rooms at Rs.2000/- per month. Though trial court has not referred to S.57 and S.114 of the Indian Evidence Act (Sections 52 and 119 of the Bharatiya Sakshya Adhiniyam), courts can however in view of these provisions draw inferences and take judicial notice with respect to rate of rent and use and occupation charges which are payable, and therefore I do not find any illegality in reasoning and conclusion of the trial court given in para 18 of the impugned judgment for ordering payment of damages at Rs.2000/- per month.

27. Presumption as to Certified Copies of Foreign Judicial Records – S. 88

Section 88 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 86 of the Evidence Act) relating to Presumption as to certified copies of foreign judicial records, reads as:

(1) The Court may presume that any document purporting to be a certified copy of any judicial record of any country beyond India is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

(2) An officer who, with respect to any territory or place outside India is a Political Agent therefor, as defined in clause (43) of section 3 of the General Clauses Act, 1897, shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.

In Swanthantra Arora v Rajendra Kumar Bali, 2019 KHC 3142: AIR 2019 NOC 261, in the context of production of a photo copy of judgement of dissolution by the husband in a petition for restitution of conjugal right. The Delhi High Court, speaking through justice Rajiv Sahai Endlaw observed:

“….mention may also be made of S.74 of the Indian Evidence Act, 1872 (Section 74 of the Bharatiya Sakshya Adhiniyam) defining public documents as including documents forming the acts or record of the acts of judicial officers of a foreign country and S.78(6) of the Indian Evidence Act (Section 77(f) of the Bharatiya Sakshya Adhiniyam) providing for proof of public document of any other class in a foreign country by production of original or a copy certified by a legal keeper thereof with a certificate under the seal of Notary Public or a diplomatic agent that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. Though S.76 of the Act (Section 75 of the Bharatiya Sakshya Adhiniyam) obliges the public officer having custody of the public document to issue certified copy thereof and S.77 of the Act (Section 76 of the Bharatiya Sakshya Adhiniyam) provides for proof of public document by production of certified copies but since S.76 of the Act (Section 75 of the Bharatiya Sakshya Adhiniyam) does not bind foreign Courts, proof of foreign judgments cannot under S.77 of the Act (Section 76 of the Bharatiya Sakshya Adhiniyam) be by mere production of certified copy thereof and has to be in accordance with S.78(6) (Section 77(f) of the Bharatiya Sakshya Adhiniyam) as aforesaid. Mention in this regard may also be made of S.86 of the Evidence Act (Section 88 of the Bharatiya Sakshya Adhiniyam) which again entitles the Court to presume that any document purporting to be a certified copy of judicial record of any country not forming part of India is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in such country to be the manner commonly in use for certification of copies of judicial records. Thus a foreign judgment is to be proved, not by mere production of certified copies thereof, but such certified copies must be further certified by the diplomatic agent of India in that country in the manner provided in S.78(6) and S.86 of the Indian Evidence Act. (Sections 77(f) and 88 of the Bharatiya Sakshya Adhiniyam

In Y. Narasimha Rao v. Y. Venkatalakshmi 1991 (3) SCC 451. the Supreme Court referred to S.86 as also S.63(1) & (2), 65(e) & (f) and 74(1)(iii) and 77 of the Indian Evidence Act (Sections 88, 58, 60, 74 and 76 of the Bharatiya Sakshya Adhiniyam), and observed as follows:

“The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of decree was not admissible in evidence. The High Court is not correct in its reasoning. Under S.74(1)(iii) of the Indian Evidence Act (hereinafter referred to as the “Act’) documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under S.76 read with S.77 of the Act (Section 75 and 76) of the Bharatiya Sakshya Adhiniyam, certified copies of such documents may be produced in proof of their contents. However, under S.86 of the Act (Section 88 of the Bharatiya Sakshya Adhiniyam) there is a presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification.

S.63(1) and (2) read with S.65(c) and (f) of the Act (Sections 58(1) and(2) read with 60(c) and (f) of the Bharatiya Sakshya Adhiniyam) permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A Photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of S.76 of the Act (Section 75 of the Bharatiya Sakshya Adhiniyam) and also in the manner required by the provisions of the said section. Hence the photostat copy perse is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by S.86 of the Act (Section 88 of the Bharatiya Sakshya Adhiniyam). The expression ‘certified copy’ of a foreign judgment in S.14 of the Code has to be read consistent with the requirements of S.86 of the Act (Section 88 of the Bharatiya Sakshya Adhiniyam).”

See also Badat and Co Bombay v East India Trading Company, AIR 1964 SC 538 (K. Subba Rao; Raghubar Dayal; J. R. Mudholkar, JJ).

28. Presumption as to Books, Maps and Charts – S.89

Section 89 of the Bharatiya Sakshya Adhiniyam (Section 87 of the Evidence Act) relating to Presumption as to books, maps and charts, reads as:

The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.

In Biseswar Danpat v Saraswathi Dei and others AIR 2014 Ori. 97, Orissa High Court observed:

The maps in question are prepared by the Revenue Department and the same are sold by the State Government pursuant to letter of Board of Revenue in Annexure – 5 and more so the same is published by the Government and offered for sale. The maps in question are printed copy of the original purchased from the Government officers on payment of requisite fees. The said printed copy does not contain any certificate with seal and signature as it is not the certified copy. As per the provisions of S.36 of the Indian Evidence Act (Section 30 of the Bharatiya Sakshya Adhiniyam), there are two types of maps, namely, published map or charts offered for public sale and maps and plans made under authority of Government. Therefore, S.36 of the Evidence Act (Section 30 of the Bharatiya Sakshya Adhiniyam) mandates that the statement of the facts in issue made in published maps generally offered for public sale themselves constitute to be a public document and the element of public document as enshrined in S.74 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam)  is well founded. Therefore, under S.83 of the Evidence Act(Section 82 of the Bharatiya Sakshya Adhiniyam), the Court must presume the said maps to be accurate purporting to be made by the authority of any State Government. So far as rejection of the application on the ground that the maps purchased from competent authority cannot be suo motu exhibited without its formal proof when the defendants disputed genuineness of the map is concerned, the contention is that no formal proof is necessary as there is no dispute regarding genuineness of the documents, for the fact is that the document map has been purchased from the various sources of the State Government having competence over the same. The said documents are public document within the meaning of S.74(1)(i) of the Indian Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam). As the said documents forming the Acts of the sovereign authority, the same should have been admitted without any objection as primary evidence under S.62 of the Evidence Act(Section 57 of the Bharatiya Sakshya Adhiniyam). When the competent authority has supplied the printed copy of the original on payment of requisite fees by virtue of letter under Annexure – 5, it can be very well presumed to be accurate and the said printed maps are admissible in evidence as relevant under S.36 and S.83 of Evidence Act (Sections 30 and 82 of the Bharatiya Sakshya Adhiniyam). The printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act. In Secretary of State (AIR 1942 Bom 161) (supra), the Bombay High Court held that the printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act.”

Section 30 and 82 of the Bharatiya Sakshya Adhiniyam (Sections 36 and 83 of the Evidence Act read as under):

Section 30:

Relevancy of statements in maps, charts and plans.

Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government], as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

Section 82 of the Bharatiya Sakshya Adhiniyam (Section 83 of the Evidence Act):

relating to Presumption as to maps or plans made by authority of Government, reads as:

the Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

29. Presumption as to Telegraphic Messages

Section 88 of the Evidence Act relating to Presumption as to telegraphic messages, reads as:

The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the Court shall not make any presumption as to the person by whom such message was delivered for transmission.

No Presumption As To Authorship Of Telegram

In Kishore Chandra Singh Deo v Babu Ganesh Prasad Bhagat and Others AIR 1954 SC 316 the Supreme Court observed:

S.88 of the Evidence Act enacts that while the Court may presume that the message delivered to the addressee corresponds with the message as delivered at the office of transmission, no presumption shall be made as to the person by whom such message was sent. In this case, there is no evidence that it was the defendant who sent Exhibit H-1. On the other hand, he has specifically denied it. Exhibit H-1 must therefore be held to be not proved

In Mubarak Ali Ahamed v State of Bombay, AIR 1957 SC 857, the Supreme Court held:

It is true that under S.88 of the Evidence Act there is a presumption only that the message received by the addressee corresponds with the message delivered for transmission at the office of origin.

There is no presumption as to the person who delivered such a message for transmission. But here again proof of authorship of the message need not be direct and may be circumstantial as has been explained above in the case of letters. The contents of the messages received, in the context of the chain of correspondence may well furnish proof of the authorship of the messages at the dispatching end.

In this internet era telegraph has become outdated and is no more in use hence this provision became otiose and is omitted in the Bharatiya Sakshya Adhiniyam.

30. Presumption as to Electronic Message – S 90

Section 90 of the Bharatiya Sakshya Adhiniyam (Section 88A of the Evidence Act) reads as:

The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.

31. Presumption As To Ancient Documents S.92

Section 92 of the Bharatiya Sakshya Adhiniyam (Section 90 of the Evidence Act) relating to Presumption as to documents thirty years old, reads as:

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. —The Explanation to section 80 shall also apply to this section.

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 shall be proper.

(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession. The custody shall be 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 shall be proper.

On an analysis of the Section, it can be seen that its ingredients are:

(i) the document in question must be purported to be or proved to be ancient document that means it is 30 years old;

(ii) it must be produced from a custody which the Court in the particular case considers proper;

(iii) if the above conditions are satisfied, 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

(iv) in the case of a document executed or attested, the Court may presume that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation to S.92 unequivocally says that 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. It further says that no custody will be 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. It is clear from a reading of the Section and in particular the explanation that the presumption drawable under Section 92 of the Bharatiya Sakshya Adhiniyam (S.90 of the Evidence Act) has a direct bearing on the facts and circumstances in each case.

32. Provision Is Founded On Necessity and Expediency

S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities, to prove the execution of an old document, S.90 has been incorporated in the Evidence Act, 1872 (Section 92 of the Bharatiya Sakshya Adhiniyam), which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the document in question is raised from proper custody. It is however, the discretion of the Court to accept the presumption flowing from S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam). There is however, no manner of doubt that judicial discretion under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam) should not be exercised arbitrarily and not being informed by reasons. (See: Laxmi Barvah v. Padma Kanta Lalita (1996) 8 SCC 357: AIR 1996 SC 1253)

33. Presumption is With Respect to Genuineness of Signature, Execution and Attestation And Not As To Truth of Recitals/Contents

Presumption under Section 92 of the Bharatiya Sakshya Adhiniyam (S.90 of the Evidence Act) in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact.

In, Gangamma and others v. Shivalingaiah reported in 2005 (9) SCC 359 Supreme Court observed that:

“A bare perusal of the aforementioned provision would clearly go to show that in terms thereof merely a presumption is raised to the effect that 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 case a document is executed or attested, the same was executed and attested by the persons by whom it purports to be executed and attested.

Section 90 of the Indian Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) nowhere provides that in terms thereof the authenticity of the recitals contained in any document is presumed to be correct …. even if a formal execution of a document is proved, the same by itself cannot lead to a presumption that the recitals contained therein are also correct. The mere execution of a document, in other words, does not lead to the conclusion that the recitals made therein are correct, and subject to the statutory provisions contained in S.91 and 92 of the Evidence Act (Sections 94 and 95 of the Bharatiya Sakshya Adhiniyam), it is open to the parties to raise a plea contra thereto.”

34. The Date Of Computation Of The Elapse Of Thirty Years in S.92

In Om Prakash (Dead) Thr. His Lrs. v. Shanti Devi and Others AIR 2015 SC 976: 2015 (4) SCC 601, Supreme Court observed:  

Under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), before any question of presuming a document’s valid execution can emerge, the document must purport and be proved to be thirty years old. The law surrounding the date of computation of the elapse of thirty – years stands long – settled, since the verdict of the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali, AIR 1936 PC 15, which held that the period of thirty years is to be reckoned, not from the date upon which the Deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the province of proof.

35. Whether The Presumption Under Section 92 of the Bharatiya Sakshya Adhiniyam Is Available To A Will Which Is More Than 30 Years Old

On the issue of whether the presumption under S.90 of the Evidence Act is available to a will which is more than 30 years old, there is conflict of judicial views.

In, Probhat Chandra Kanrar and Others v. Rani Bala Kanrar and Others AIR 1989 Cal. 202, the Calcutta High Court, succinctly laid down the law as under:

The court may in a proper case rely on the presumption contained in S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam). Therefore, the position is fortified that notwithstanding S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam), the court in a proper case can make a presumption under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam). The two provisions, S.68 and S.90 of the Evidence Act(Sections 67 and 92 of the Bharatiya Sakshya Adhiniyam), do not militate against each other. Therefore, the right of the court to presume under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam) is not controlled or curtailed by S.68 of the Evidence Act. We have already observed that whether or not the presumption should be made, will depend upon the facts of the particular case.

A contra view is taken in, Choudhari Budhu Rajwar and Others v. Ramkaran Rang u (died) through L. Rs. and Others 2021 KHC OnLine 4464: AIR 2021 NOC 651 Chhattisgarh High Court held that:

“S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) would have no application in case of Will in view of the strict requirement contained in S.63 (c) of the Indian Succession Act read with S.68 of the Indian Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam),” (See also Manickam N v R Saraswathi and others, AIR 2017 Mad. 35)

In arriving at the above conclusion, the Chhattisgarh High Court relied on, the Supreme Court Judgment in Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766.

With regard to the question as to whether presumption under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) would be applicable in the case of Will, the Supreme Court in the case of Bharpur Singh v. Shamsher Singh, AIR 2009 SC 1766 has held that the provisions of S.90 of the Evidence Act would have no application in the case of Will and observed as under: –

“. … The provisions of S.90 of the Indian Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) keeping in view the nature of proof required for proving a Will have no application. A Will must be proved in terms of the provisions of S.63(c) of the Indian Succession Act, 1925 and S.68 of the Indian Evidence Act, 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam). In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, S.69 and S.70 of the Indian Evidence Act (Sections 68 and 69 of the Bharatiya Sakshya Adhiniyam) providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as S.68 of the Indian Evidence Act postulates (Section 67 of the Bharatiya Sakshya Adhiniyam)that execution must be proved by at least one of the attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. (See: B. Venkatamuni v. C.J. Ayodhya Ram Singh and Others (2006) 13 SCC 449: AIR 2007 SC 311).”

36. Bharpur Singh v. Shamsher Singh – Held Per incurrium Of Larger Bench Decisions In K. V. Subbaraju v. C. Subbaraju, (3 Judges Bench) (AIR 1968 SC 947)

In Narayanan Radhakrishna Menon v Narayanan Sukumara Menon and Others, 2018 (2) KLT 553 (A. Hariprasad, J.), a Single Judge of the High Court of Kerala held that Bharpur Singh v. Shamsher Singh is not a binding decision as it was rendered in contravention to 3 Judges Bench decision in K. V. Subbaraju v. C. Subbaraju, AIR 1968 SC 947. The Court observed:

In Munnalal v. Kashibai, AIR 1947 PC 15 it is contended that a Will more than 30 years old and produced from proper custody should be presumed to be properly executed. Also, the testator should be presumed to be of sound mind at the time of execution. ……. The trial Judge held that the burden rested upon the respondents 1 and 2 to prove the Will. It was also held that though the Court could presume under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) that the Will had been properly executed and attested, the Court could not, under that Section, presume that the testator, when he made his Will, was of sound disposing mind. Accordingly, the Trial Court held that the Will was not proved. In appeal, the High Court held that the presumption which could be drawn under S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam) is extended to the testamentary capacity as well and held the Will stood proved. Noticing Sections 90 and 114 of the Evidence Act (Sections 92 and 119 of the Bharatiya Sakshya Adhiniyam), the Privy Council held thus:

“The Will of Bahadur was more than 30 years old and was produced from proper custody, and both the lower Courts rightly held that the actual execution and attestation of the Will could be presumed under S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam); they differed on the question whether the presumption extended to the testamentary capacity of the testator. A party setting up a Will is required to prove that the testator was of sound disposing mind when he made his Will but, in the absence of any evidence as to the state of the testator’s mind, proof that he had executed a Will rational in character in the presence of witnesses must lead to a presumption that he was of sound mind and understood what he was about. This presumption can be justified under the express provisions of S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), since a Will cannot be said to be “duly” executed by a person who was not competent to execute it; and the presumption can be fortified under the more general provisions of S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam), since it is likely that a man who performs a solemn and rational act in the presence of witnesses is sane and understands what he is about. There was no evidence whatever that Bahadur was not in a perfectly normal state. Their Lordships feel no doubt that on this point the decision of the High Court was right, and that the Will must be presumed to have been duly executed. The view taken by the learned Subordinate Judge would render it impossible, in most cases, to prove ancient wills. This disposes of the first appeal.”

This decision of the Privy Council came up for consideration before a three Judge Bench of the Supreme Court in K. V. Subbaraju v. C. Subbaraju, AIR 1968 SC 947. The principle therein was approved in the following words:

” As aforesaid, the respondents did not produce the original Will but produced only its certified copy …. Since the Will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it. It was undisputed that its scribe and the attesting witnesses were all dead except Daltapati Venkatapathi Raju, DW 4. But the appellants’ contention as regards D. W. 4 was that he was not the same person who attested the will. The High Court appears to have relied upon S.90 of the Evidence Act and to have drawn the presumption that the Will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested. Such a presumption, however, under that section arises in respect of an original document. (See Munnalal v. Mt. Kashibai, AIR 1947 PC 15). Where a certified copy of a document is produced the correct position is as stated in Basant Singh v Brij Raj Saran Singh, 67 Ind App 180 : AIR 1935 PC 132 where the Privy Council laid down that if the document produced is a copy admitted under S.65 (Section 60 of the Bharatiya Sakshya Adhiniyam) as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a Will has been admitted the Court is entitled to presume the genuineness of such Will which purports to be 30 years old. Relying on the words “where any document purporting or proved to be 30 years old” in S.90 (Section 92 of the Bharatiya Sakshya Adhiniyam), the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided. This view has since then been approved of by this Court in Harihar Prasad v. Deo Narain Prasad, 1956 SCR 1 at p. 9) : AIR 1956 SC 305 at p. 309. The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will.”

 Striking difference between the facts in Munnalal and K. V. Subbaraju is that in the former case original Will was produced from proper custody, which was more than 30 years old, but in the latter, a certified copy of Will was produced. In that context, the Supreme Court clearly held that the presumption under Section 90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam)arises in respect of an original document only. The view taken by the High Court in Munnalal that the Will in question, being one more than 30 years old, was duly executed and attested by the person by whom it was purported to have been executed and attested, based on S.90 of the Evidence Act (Section 92 of the Bharatiya Sakshya Adhiniyam), was affirmed by the Privy Council. Further, in Munnalal’s case, it was held that such a presumption under S.90 of the Evidence Act could arise only in respect of an original document. These legal principles were quoted with approval in K. V. Subbaraju.

 Based on the above observations by a three Judge Bench in K. V. Subbaraju, with due respect, I find the declarations of law in Bharpur Singh and M. B. Ramesh (supra) cannot be regarded as binding precedents under Art.141 of the Constitution.

Later, in Narambrath Ramadasan and Others v. N. Leela and Others ILR 2020 (1) Ker. 263, another single judge of the High Court of Kerala observed:

…. a mere production of a document of 30 years old from a proper custody would not itself permit the Court to draw a presumption mechanically. The Courts have to act with extreme caution and with utmost circumspection, having regard to the facts and circumstances of the case, for which the Court must be satisfied that the document produced on its face is free from suspicion and came from proper custody. When it is satisfied, presumption would come into play and if not rebutted, there is no necessity to comply with the mandate under S.68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam) in proof of execution or attestation of a document required by law to be attested including a Will or Codicil.

The above view expressed in Narayanan Radhakrishna Menon v Narayanan Sukumara Menon and Others, 2018 (2) KLT 553 (A. Hariprasad, J.), appears to be correct and in appropriate cases Section 90 (Section 92 of the Bharatiya Sakshya Adhiniyam) could be invoked to prove a Will.

37. Presumption As To Abetment Of Suicide By A Married Woman

Section 117 of the Bharatiya Sakshya Adhiniyam (Section 113A 0f the Evidence Act) relating to Presumption as to abetment of suicide by a married woman, reads as:

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 86 of the Bharatiya Nyaya Sanhita, 2023.

The relevant provisions of the Bharatiya Nyaya Sanhita (IPC) for reference in the context of Section 117 (Section 113 A of the Evidence Act) are Section 45 (S. 107 IPC) which defines Abetment, Section 108 (S.306 IPC) which makes abetment of suicide punishable and Section 85 and 86 of the Bharatiya Nyaya Sanhita (S.498 A IPC) which makes cruelty punishable and defines cruelty respectively. These provisions are reproduced here under:

“45. Abetment of a thing. –

A person abets the doing of a thing, who–

First.– Instigates any person to do that thing; or

Secondly.– Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.– Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.– A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration:

A, a public officer, is authorised by a warrant from a court to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C  is Z, and thereby intentionally causes A to apprehend C, Here B abets by instigation the apprehension of C.

Explanation 2.– Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Section 108 of the Bharatiya Nyaya Sanhita (306 IPC)reads as: Abetment of suicide.- 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.

Sections 85 and 86 of the Bharatiya Nyaya Sanhita (498A IPC) read as:

Section 85

Husband or relative of husband of a woman subjecting her to cruelty.—

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Section 86:

For the purposes of section 85, “cruelty” means—

(a) any wilful 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.”

38. Ingredients Of S. 117 of the Bharatiya Sakshya Adhiniyam (S.113A Evidence Act )

To attract 117 of the Bharatiya Sakshya Adhiniyam (S.113A of the Indian Evidence Act), the following conditions are required to be satisfied:

(i) The woman has committed suicide,

(ii) Such suicide has been committed within a period of seven years from the date of her marriage,

(iii) The husband or his relatives, who are charged had subjected her to cruelty.

(See, Gurjit Singh v State of Punjab, AIR 2020 SC 1785: 2020 (14) SCC 264 (Navin Sinha; B. R. Gavai, JJ) )

The Courts have consistently held that presumption under S.113A of the Evidence Act (Section 117 of the Bharatiya Sakshya Adhiniyam) is a permissive presumption and it should not be drawn in a mechanical way and the relevant circumstances of the case should be considered before drawing the presumption more over the presumption is a rebuttable presumption.

39. Case Law Where the Courts Refused to Draw Presumption Under Section 113A (Section 117 of the Bharatiya Sakshya Adhiniyam ) – Foundation For Drawing the Presumption Should Be Established

A 3 judges bench of the Supreme Court in Ramesh Kumar v. State of Chhattisgarh, 2001 (9) SCC 618: AIR 2001 SC 3837: 2001 CriLJ 4724. After evaluating the provisions of S.306 of the IPC and S.113A of the Indian Evidence Act, 1872. observed thus:

This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in – laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of S.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) shows that to attract applicability of S.113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression – “the other circumstances of the case” used in S.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) suggests the need to reach a cause – and – effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in S.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) is defined in S.4 of the Evidence Act (Section 2 of the Bharatiya Sakshya Adhiniyam), which says – “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.

40. A Cause and Effect Relationship Between the Cruelty and the Suicide

Supreme Court in Gurjit Singh v State of Punjab, AIR 2020 SC 1785: 2020 (14) SCC 264 (Navin Sinha; B. R. Gavai, JJ), observed:

…. though the prosecution is successful in proving the case under S.498A of the IPC (Section 85 of the Bharatiya Nyaya Sanhita), we are of the view that the prosecution has failed to prove that the cruelty was of such a nature which left no choice to the deceased than to commit suicide. The prosecution has not been in a position to place on record any evidence to establish beyond reasonable doubt that any act or omission of the accused instigated the deceased to commit suicide. There is no material on record to show that immediately prior to the deceased committing suicide there was a cruelty meted out to the deceased by the accused due to which the deceased had no other option than to commit the suicide. We are of the view, that there is no material placed on record to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising presumption.”

The Supreme Court has repeatedly cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

S.498A and S.306 IPC (Sections 85 and 108 of the Bharatiya Nyaya Sanhita) are independent and constitute different offences. Though, depending on the facts and circumstances of an individual case, subjecting a woman to cruelty may amount to an offence under S.498A (Section 85 of the Bharatiya Nyaya Sanhita) and may also, if a course of conduct amounting to cruelty is established leaving no other option for the woman except to commit suicide, amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under S.498A IPC it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned……” (See State of W.B. v. Orilal Jaiswal, 1994 (1) SCC 73)

In Chandra Kumar Sunderdas Taneja, 2017 CriLJ 4148, Bombay High Court observed:

Merely because a married woman met unnatural death due to burn injuries that by itself is not sufficient to attract the presumption as envisaged under S.113 – A of the Indian Evidence Act. In order to attract the said provision the prosecution is obliged to prove that the deceased was subjected to harassment to such an extent that she is driven to commit suicide. Then and then only the said presumption can be pressed into service.

In Mangat Ram v. State of Haryana, 2014 (12) SCC 595: AIR 2014 SC 1782 : 2014 CriLJ 2425 the Court observed thus:

“We have already indicated that the Trial Court has found that no offence under S.304B IPC (Section 80 of the Bharatiya Nyaya Sanhita)has been made out against the accused, but it convicted the accused under S.306 IPC (Section 108 of the Bharatiya Nyaya Sanhita), even though no charge had been framed on that section against the accused. The scope and ambit of S.306 IPC (Section 108 of the Bharatiya Nyaya Sanhita) has not been properly appreciated by the Courts below……

Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under S.306 IPC (Section 108 of the Bharatiya Nyaya Sanhita), abetment must attract the definition thereof in S.107 IPC (Section 45 of the Bharatiya Nyaya Sanhita). Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of S.306 read with S.107 IPC (Section 108 read with 45 of the Bharatiya Nyaya Sanhita) that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.”

In State of Madya Pradesh v Shriram and Another 2019 (14) SCC 430 (N. V. Ramana; Mohan M. Shantanagoudar, JJ), the Supreme Court observed:

….the deceased committed suicide by consuming poison at her in – laws place / matrimonial home, would not itself lead to the presumption that deceased was subjected to physical – mental cruelty, so as to force her to commit suicide. Herein, prima facie burden lies on the prosecution to prove the guilt of the accused / respondents beyond all reasonable doubts. However, there is no cogent or positive evidence on record to prove that the respondents subjected the deceased to any such mental or physical cruelty, so as to force her to commit suicide. Thus, presumption under S.113 – A of the Indian Evidence Act (Section 117 of the Bharatiya Sakshya Adhiniyam) cannot be drawn against the respondents in this case.

In the case of Sanju Alias Sanjay Singh Sengar v. State of M.P., 2002 (5) SCC 371: AIR 2002 SC 1998: 2002 CriLJ 2796 the Supreme Court found that there was time gap of 48 hours between the accused telling the deceased ‘to go and die’ and the deceased ‘committing suicide’. As such, the Court held that there was no material to establish that the accused had abetted the suicide committed by the deceased.

In Heeralal and another v State of Rajastan AIR 2017 SC 2425: 2018 (11) SCC 323 (Rohinton F. Nariman; Mohan M. Shantanagoudar, JJ.), the Supreme Court held that when the accused are absolved of the charge of cruelty, s.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) cannot be invoked. The Court observed:

We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under S.498A, the third ingredient for application of S.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) is missing, namely, that the relatives i.e., the mother –  in –  law and father – in – law who are charged under S.306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in – laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under S.113A (Section 117 of the Bharatiya Sakshya Adhiniyam) would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in – laws to assist the victim to commit suicide.

In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is “abetment of suicide”.

On the facts, therefore, we find, especially in view of the fact that the appellants have been acquitted for the crime under S.498A (Section 85 of the Bharatiya Nyaya Sanhita) of the Code, that abetment of suicide under S.306 (Section 108 of the Bharatiya Nyaya Sanhita)is not made out.

41. Case Law Where the Courts Drew Presumption Under Section 113A Evidence Act and Convicted the Accused

In the case of Thanu Ram v. State of Madhya Pradesh, 2010 (10) SCC 353, the Court by observing that on account of interplay between S.113A of the Indian Evidence Act, 1872 (Section 117 of the Bharatiya Sakshya Adhiniyam) and S.498A, S.107 and S.306 of the IPC (Sections 85, 45 and 108 of the Bharatiya Nyaya Sanhita), held that the appellant was liable for conviction for the offence punishable under S.498A and S.306 of the IPC(Sections 85 and 108 of the Bharatiya Nyaya Sanhita). The Court relied on the dying declaration of the deceased wherein she stated that she had been treated with both mental and physical cruelty. The said dying declaration was corroborated by witness testimony, on the basis of which the Court held that the ill treatment was such which triggered her immediate intention to commit suicide.

In the case of Satish Shetty v. State of Karnataka, 2016 (12) SCC 759: AIR 2016 SC 2689: 2016 CriLJ 3147 the victim was found to have injuries on her person. Though, the deceased and the accused husband had slept together in the same room before she consumed poison, the husband was not able at all to explain the injuries sustained by the victim. In these circumstances, the conviction under S.306 of the IPC (Section 108 of the Bharatiya Nyaya Sanhita), as recorded by the High Court, was upheld by the Supreme Court.

Module 22- Part 2

1. Rebuttable Presumptions of Law / ‘Shall Presume’ Proposition – Mandatory Presumptions

Now we will move on the Rebuttable presumptions of law which are mandatory and articulated by the phrase “Shall presume”.  Presumptions of law are arbitrary inferences, which the law expressly directs the judge to draw from particular known facts. They are based on the principles of natural law or rules of justice or on public policy. Presumptions of law are obligatory. Here the court has no discretion and is bound to draw the presumption. Rebuttable presumptions of law are indicated by the phrase ‘shall presume’. The party against whom presumption is drawn has the right to adduce evidence to dislodge or rebut the presumption.

Sections 78 to 87, 91, 118, 120 (Sections 79 to 85, 89, 113B and 114A of the Evidence Act) are some of the instances of rebuttable presumption of law.

2. Presumption as to Genuineness of Certified Copies – S 78

Section 78 of the Bharatiya Sakshya Adhiniyam (Section 79 of the Evidence Act)relating to Presumption as to genuineness of certified copies, reads as:

  • The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the Central Government or of a State Government:

Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such paper.

Section 78 (Section 78 of the Evidence Act) provides that when any document is produced before a court which purports to be certified copy duly certified by an officer of the government, the court shall presume (a) that the document is genuine and (b) that the officer by whom it purports to be certified, held at that time, the official character which he claims to hold.

The provision is based on the maxim “Omnia preasumuntur rite esse acta” meaning all acts are presumed to be rightly done.

3. To Attract the Presumption Of Genuineness The Certified Copy Must Be Issued Substantially In The Form And In The Manner Provided By Law

In, Bhinka v Charan Singh, AIR 1959 SC 960: 1959 Supp (2) SCR 798: 1959 Cri LJ 1223 (S. K. Das; A. K. Sarkar; K. Subba Rao)

“Under this section a Court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. S.4 of the Evidence Act (Section 2 of the Bharatiya Sakshya Adhiniyam) indicates the limits of such a presumption. The relevant part of that section reads:

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.”

To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the Court raises a rebuttable presumption in regard to its genuineness. The khatauni of 1355 fasli with which we are concerned, gives the relevant details and purports to have been signed by Ahmed Ali, the patwari of the village. It cannot be disputed that the patwari was an officer appointed by the State Government and that he was authorized to issue certified copies of the record of rights. The U. P. Land Records Manual gives the rules prescribing the form and the manner in which a certified copy of the record of rights should be issued. Paragraph 26 of the Manual confers upon him the power to give to the applicants certified copies from his record; and under cl. (d) of the said paragraph he should enter in his diary a note of such extracts. He should also note the amount of fee realised by him in the diary as well as on the extract. In this case neither the diary was produced to prove that the procedure prescribed was followed nor the extract to disclose that the officer made any note of payment. It cannot, therefore, be said that the certified copy was issued by the patwari in substantial compliance with the provisions of law governing such issue. If so, it follows that the Court is not bound to draw the presumption in regard to its genuineness.”

4. Certified Copies Of Public Document Prove Contents Of Document With Out Calling Its Maker As A Witness

There cannot be any doubt that once a document qualifies to be a public document under S.74 of the Bharatiya Sakshya Adhiniyam, due production of certified copy thereof amounts to proof of contents of the said document under S.76 of the said Adhiniyam(S 77 of the Evidence Act). Section 78 (S.79 of the Evidence Act) as to genuineness is also relevant in this context.

Jaswant Singh v. Gurudev Singh, 2012 (1) SCC 425, the Supreme Court held:

judgment and decree were passed as per the terms and conditions of compromise placed on file. As rightly observed by the Courts below, the compromise has merged into a decree and has become part and parcel of it. To put it clear, the compromise had become a part of the decree which was passed by the Court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of S.74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under S.76 of the Act (S.75 of the Bharatiya Sakshya Adhiniyam) is admissible in evidence under S.77 of the said Act (S.76 of the Bharatiya Sakshya Adhiniyam). A certified copy of a public document is admissible in evidence without being proved by calling witness. Inasmuch as the decree was passed and drafted in the light of the compromise entered into between the parties, viz., the plaintiff and the defendants, the certified copy of such document which was produced before the Court, there is presumption as to the genuineness of such certified copy under S.78 of the Act (S.77 of the Bharatiya Sakshya Adhiniyam)..

Kurban Ansari v State of West Bengal and Others 2011 CriLJ 1375 Calcutta High Court, held:

If we look at S.74 of the Indian Evidence Act, 1872 (S.74 of the Bharatiya Sakshya Adhiniyam)we would find that the documents of official bodies or of public officers are called as public documents and the formal proof thereof is not necessary in terms of S.74 read with S.79 of the said Act of 1872 (S.78 of the Bharatiya Sakshya Adhiniyam). In the instant case, the chemical analyst as well as the arms expert both being public authority discharging public duty conducted necessary tests and / or examination and issued necessary certificate therefor. Such certificates were received by the Investigating Officer in usual course of business. During trial he produced those documents which were tendered in evidence subject to objection. We do not find any definite assertion on the part of the defence denying the veracity of those certificates. It was not the case of the defence that those certificates were fake or forged.

In absence of such definite assertion the learned Judge was right in relying upon the same discarding the objection raised by the defence mechanically.

The examination of the signatory to such document is not necessary for admitting certified copy of statutory notification in evidence, by virtue of S.79(S.78 of the Bharatiya Sakshya Adhiniyam).

In State of Kerala v Adichan Sasi 1975 KLT 839, Kerala High Court, observed:

“The acts attributed to the respondent, if proved, would constitute an offence under S.27(2)(c) and (d), only if it is established that the area trespassed or from which the trees were cut and removed came within the definition of a Reserved Forest. Ext. P3 is a true copy of a notification issued under the Travancore Forest Act, II of 1068 taken from the register of reserves maintained at the Office of the Chief Conservator of Forests. An objection has been raised that being a copy of the notification certified only by the Chief Conservator of Forests, it is not properly proved. The objection has no force. A notification issued under the Travancore Forest Act is a public document and under S.77 of the Evidence Act (S.76 of the Bharatiya Sakshya Adhiniyam), a certified a copy may be produced in proof of it. The Chief Conservator of Forests as the Head of the Department is an officer competent to certify to the correctness of the copy in view of S.78 and 79 of the Evidence Act ( Sections 77 and 78 of the Bharatiya Sakshya Adhiniyam). The decisions in Pyli v. State of Kerala (1966 KLT 102) and Chandrasekharan v. State (1966 KLT 638) relied upon by the respondent have no application to the present case.”

Certified copy of a Notification published in the Official Gazette is a copy of the public document and the examination of the signatory to it is not required for the document to be admissible in evidence.

In, Krishna Rani v Chunnilal Gulati, AIR 1981 P&H 119 Punjab and Haryana High Court, in the context of admission of certified copy of FIR,  observed:

Illustration (e) of S.114 of the Indian Evidence Act (S.119 of the Bharatiya Sakshya Adhiniyam) which is in the following terms, permits the raising of a presumption that the official acts had been regularly performed: –

“114 (e) That judicial and official acts have been regularly performed.”

S.79 of the Indian Evidence Act (S.78 of the Bharatiya Sakshya Adhiniyam) too permits the raising of a presumption as to the genuineness of the certified copies. In view of this it would have to be taken that the police official who had recorded the F.I.R. had done so in a regular manner in due performance of his duty. Cl. (e) of S.65 of the Evidence Act (S.60 of the Bharatiya Sakshya Adhiniyam), permits production of secondary evidence to prove the existence, condition or contents of an original document if the same is a public document within the meaning of S.74 of the Evidence Act (Section74 of the Bharatiya Sakshya Adhiniyam). The secondary evidence envisaged of such document is a certified copy. S.77 of the Evidence Act (S.76 of the Bharatiya Sakshya Adhiniyam) provides that certified copies can be produced in proof of the contents of the public document of which they purport to be copies.

 In Madamanchi Ramappa v. Mathaluru Bojjappa, AIR 1963 SC 1633, their Lordships have put a seal of authority on the assertion that if a document is a certified copy of a public document, then the same need not have been proved by calling a witness.

5. Presumption as to Documents Produced as Record of Evidence

Section 79 of the Bharatiya Sakshya Adhiniyam (Section 80 of the Evidence Act) relating to Presumption as to documents produced as record of evidence, reads as:

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that—

  • the document is genuine;
  • any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and
  • such evidence, statement or confession was duly taken.

6. Certified Copy Of Deposition Of A Party In Another Case Can Be Marked With Out Examining Such Party

In Jose Valiyaveedan v Giri K George, 2012 (3) KLT 479: ILR 2012 (3) Ker. 585, the Kerala High Court through Justice K. T. Sankaran held:

Certified copy of the deposition given by the defendant in another judicial proceeding can be marked without the defendant being examined, in view of S.80 of the Evidence Act (Section 79 of the Bharatiya Sakshya Adhiniyam). The deposition of the defendant can even be marked in the evidence of the plaintiff. The Court shall presume that the document is genuine and that such evidence or statement was duly taken. If that statement purports to be the statement of the defendant and since the Court can presume the genuineness of the deposition, the Court can also presume that the signature therein was put by the defendant. The signature of the defendant in the deposition given by him in another judicial proceeding can be proved not as an admission as such under S.21 read with S.17 of the Evidence Act (Under Section 19 read with 15  of the Bharatiya Sakshya Adhiniyam), but by invoking the presumption under S.80 of the Evidence Act (Section 79 of the Bharatiya Sakshya Adhiniyam) that the evidence and statement were duly taken and that the document is genuine and, therefore, the signature of the maker of the statement contained therein is also genuine.

7. Confession Duly Recorded By A Magistrate Can Be Received In Evidence With Out Examining The Magistrate

In Bandhu Kiechi and others v State 1976 CriLJ 325 a Division Bench of Orissa High Court Held:

The learned defence counsel contended that these judicial confessions should not have been admitted into evidence at all in absence of examining the Magistrate who recorded the same. We think this contention has no force. S.80 of the Evidence Act  (Section 79 of the Bharatiya Sakshya Adhiniyam) provides that whenever any document is produced before any Court purporting to be a statement or concession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any officer authorised by law to take evidence, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The Supreme Court in the case of Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159: (1952 Cri LJ 839), repelled the defence criticism in that case based on the fact that the Magistrate who recorded the confession had not been examined as a witness. Their Lordships endorsed the remarks of the Privy Council in Nazir Ahmed’s case (AIR 1936 PC 253): (37 CriLJ 897) regarding the undesirability of calling the Magistrate who recorded the confession as a witness. This Court in the case of Bisipati Padhan v. State, 1969 O.JD. 71: (1969 CriLJ 1517), has also taken the view that the confessional statement can be admitted into evidence and made an exhibit without examining the Magistrate in court. This is what has exactly been done in this case by exhibiting the two judicial confessions as Exts. 18 and 18/1. If the defence had brought out such facts as would have destroyed the presumption of S.80 of the Evidence Act (Section 79 of the Bharatiya Sakshya Adhiniyam), then, in such a contingency the prosecution may probably have had to examine the Magistrate to corroborate the presumption and to prove that all the formalities required by law had been complied with before recording the Judicial confession. The appellants 1 and 2, however do not take any such plea that the formalities were not complied with. On the contrary, appellant No. 2 completely denied to have made a confession, a statement which is palpably false.

In Madi Ganga v State of Orissa, AIR 1981 SC 1165 : 1981 CriLJ 628 (O. Chinnappa Reddy; Baharul Islam), the Supreme Court categorically held:

S.80 of the Evidence Act (Section 79 of the Bharatiya Sakshya Adhiniyam) makes the examination of the Magistrate unnecessary. It authorises the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. Shri Jain submitted that if the Magistrate had been examined as a witness, the accused might have been in a position to show, by cross examination that the confession recorded by the Magistrate was not voluntary. The Magistrate has appended a certificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magistrate as a witness.

8. Memorandum Of Identification Parade Proceedings by A Magistrate Has To Be Proved – Section 79 of the Bharatiya Sakshya Adhiniyam Is Not Applicable

A Full Bench decision in the case of Sheo Raj v. State, AIR 1964 All 290: 1964 (2) CriLJ 1, considered the issue whether the memorandum of identification proceedings held by a Magistrate acting under S. 164 of the Cr. P.C. (Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is admissible without proof. The dispute was whether a memorandum of identification proceedings was admissible in evidence on being presumed to be genuine under S. 80 of the Evidence Act (Section 79 of the Bharatiya Sakshya Adhiniyam). The court after full consideration answered the question in the negative. It was observed as follows: –

“A memorandum of identification proceeding contains not only statements of the witnesses to the effect that such and such persons were the offenders but also many other facts, such as that the suspects were put up for identification mixed with so many persons that all precautions were taken, that the witnesses had no opportunity of communicating with one another during the identification, that the suspects were free to occupy any position in the parade, whether a witness pointed out the suspects in the first round or subsequently the demeanour of witnesses etc. These facts are not statements and a memorandum of them is not a memorandum to which S. 80 (Section 79 of the Bharatiya Sakshya Adhiniyam) could, on any interpretation, apply and cannot be presumed to be genuine. If they have not been proved by the witnesses, who were present at the identification proceedings, they must be proved by the Magistrate.”

(See also Ramdhar Chamar v State of Bihar 1986 CriLJ 684, Khanai Sheets and others v 1984 CriLJ 527 (Calcutta High Court),

9. Presumption as to Gazettes, Newspapers, Private Acts of Parliament etc

Section 80 of the Bharatiya Sakshya Adhiniyam relating to Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents, reads as:

The Court shall presume the genuineness of every document purporting to be the Official Gazette, or to be a newspaper or journal, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.

Explanation. —For the purposes of this section and section 92, document is said to be in proper custody if it is in the place in which, and looked after by the person with whom such document is required to be kept; 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 that origin probable.

The corresponding section in the Evidence Act ie Section 81 included with in its scope document purporting to be the London Gazette or any Official Gazette, or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen’s Printer. But in Bharatiya Sakshya Adhiniyam these items are removed.

Section 31 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 37 of the Evidence Act) deals with the Relevancy of Gazettes and Acts of Parliaments and Section 80 of the Bharatiya Sakshya Adhiniyam (Section 81 of the Evidence Act) deals with their genuineness.

Section 31 reads as follows:

When the Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Central Act or State Act or in a Central Government or State Government notification appearing in the respective Official Gazette or in any printed paper or in electronic or digital form purporting to be such Gazette, is a relevant fact.

Section 31 (Section 37 of the Evidence Act) makes Recitals in Statutes and Gazette Notifications relevant regarding any fact of public nature in respect of which the Court has to form an opinion.

10. Facts Stated In Gazette Admissible under S. 29 Read With S. 80 Of The Bharatiya Sakshya Adhiniyam

In, Vimala Bhai v Heralal Gupta, 1990 (2) SCC 22 (L. M. Sharma; K. Ramaswamy, JJ.), the issue was whether a family had migrated from UP, Supreme Court observed:

The Statement of fact contained in the official Gazette made in the course of the discharge of the official duties on private affairs or on historical facts in some cases is best evidence of facts stated therein and is entitled to due consideration but should not be treated as conclusive in respect of matters requiting judicial adjudication. In an appropriate case where there is some evidence on record to prove the fact in issue but it is not sufficient to record a finding thereon, the statement of facts concerning management private temples or historical facts of status of private persons etc. found in the Official Gazette may be relied upon without further proof thereof as corroborative evidence. Therefore, though the statement of facts contained in Indore State Gazette regarding historical facts of Dhangars’ social status and habitation of them may be relevant fact and in an appropriate case the Court may presume to be genuine without any further proof of its contents but it is not conclusive. Where there is absolutely no evidence on record in proof of the migration of the family of the plaintiff or their ancestors from Mathura area, the historical factum of some Dhangars having migrated from U.P. and settled down in Aurangabad District or in the Central Province by itself cannot be accepted as sufficient evidence to prove migration of the plaintiff family.

The Supreme Court in Bala Shankar Bhattjee and Others v. Charity Commissioner Gujarat State, AIR 1995 SC 167, relied on Bombay Gazette of 1879, statements of historians and the passages in the historical books, and based on Sections 35, 81 and 45 of the Evidence Act, (Section 29, 80 and 39 of the Bharatiya Sakshya Adhiniyam) came to the conclusion that Kalika Mataji temple is a public trust. The Court observed:

It is seen that the Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under S. 35 read with S. 81 of the Evidence Act, 1872(Section 29, read with S 80 of the Bharatiya Sakshya Adhiniyam). The Gazette is admissible being official record evidencing public affairs and the Court may presume their contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under S.45 (Section 39 of the Bharatiya Sakshya Adhiniyam) and the Court may in conjunction with other evidence and circumstances take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence. The recitals in the Gazette do establish that Kalika Mataji is on the top of the hill. Mahakali temple and Bachra Mataji on the right and left to the Kalika Mataji. During Moughal rule another Syed Sadar Peer was also installed there, but Kalika Mataji was the chief temple. Hollies and Bills are the main worshipers. On full Moon of Chaitra (April) and dussehra ( in the month of October), large number of Hindus of all classes gather there and worship Kalika Mataji, Mahakali, etc. After the downfall of Moughal empire, Marathas took over and His Highness Scindia attached great importance to the temple. One of the devotees in 1700 offered silver doors. The British annexed the territory pursuant to the treaty between Her Majesty’s Government of India and His Highness Scindia on the 12th December, 1860. A condition was imposed in the treaty for continued payment of fixed cash grants to all the temples from the Treasury and that British emperors accepted the condition. Regular cash grants of fixed sums were given to all the temples by Scindias and British rulers, as evidenced by Exhibits 27, 28, 29 and 30. The historical statement of noted historian, stated by the High Court, by name M. S. Commissionaria in his Vol. 1 of 1938 Edition corroborates the Gazette in the material particulars, which would establish that the temple was constructed on the top of the hill around 14th century and the people congregate in thousands and worship, as of right, to Kalika Mataji and other deities. R.N. Jogelkar’s Alienation manual brought up in 1921 in the Chapter 5 Devasthana also corroborates the historical evidence. It is true that Bai Diwali in her Will, Ex. 22 treated the temple and the properties to be private property and bequeathed to her brother and the litigation ensured in that behalf. At that time, as rightly pointed out by the High Court, the concept of public trust and public temple was not very much in vogue. Therefore, the treatment meted out to these properties at that time is not conclusive. On the other hand the fixed cash grants given by the Rulers Scindias and the successor British emperors, the large endowment of lands given to Kalika Mataji temple by the devotees do indicate that the temple was treated as public temple. The appropriation of the income and the inter se disputes in that behalf are self serving evidence without any probative value. Admittedly, at no point of time, the character of the temple was an issue in any civil proceedings. All the lands gifted to the deity stand in the name of the deities, in particular large extent of agricultural lands belong to Kalika Mataji. The entries in Revenue records corroborated it . The Gazette and the historical evidence of the temple would show that the village is the pilgrimage centre. Situation of the temples on the top of the hill away from the village and worshipped by the people of Hindus at large congregated in the thousands without any let or hindrance and as of right, devotees are giving their offerings in large sums in discharge of their vows, do establish that it is a public temple. It is true that there is no proof of dedication to the public. It is seen that it was lost in antiquity and no documentary evidence in that behalf is available. Therefore, from the treatment meted out to the temple and aforesaid evidence in our considered view an irresistible inference would be drawn that the temple was dedicated to the Hindu public or a section thereof and the public treat the temple as public temple and worship thereat as of right.

In Siddiq M.(D) thr LRs v Mahant Suresh Das 2020 (1) SCC 1 (Ayodya Case), the 5 judges constitution bench expressed a note of caution and observed:

The court may have due regard to appropriate books and reference material on matters of public history. Yet, when it does so, the court must be conscious of the fact that the statements contained in travelogues as indeed in the accounts of gazetteers reflect opinions on matters which are not amenable to be tested by cross – examination at this distant point of time. Consequently, where there is a dispute pertaining to possession and title amidst a conflict of parties, historical accounts cannot be regarded as conclusive. The court must then decide the issue in dispute on the basis of credible evidentiary material.

11. News Paper Reports Is Hearsay – Fact Has To Be Independently Proved

Under S.81 of the Evidence Act, though newspapers are admissible in evidence without formal proof and genuineness can be presumed, the paper itself is not proof of its contents. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. Judicial Notice cannot be taken of such facts.

In Samant N. Balakrishna etc. Vs. George Fernandez and others, AIR 1969 SC 1201, the Supreme Court speaking through Justice Hidayatullah held that a news item without any further proof of what had actually happened through witnesses is of no value. It is the best secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process, the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence, if the other evidence is forcible. A fact has first to be alleged and proved and then newspaper reports can be taken in support of it but not independently.

In Ravinder Kumar Sharma v. State of Assam, 1999 (7) SCC 435, it was held by the Supreme Court that the presumption of genuineness attached under S.81 of the Evidence Act (Section  80 of the Bharatiya Sakshya Adhiniyam) to newspaper reports cannot be treated as proof of the facts stated therein.

In S. A. Khan v. Ch. Bhajan Lal, 1993 (3) SCC 151, it was observed that a newspaper report is a hearsay secondary evidence which cannot be relied upon unless proved by evidence aliunde.

In, Manish Tiwari @ Manish Tiwary v State of Jharkhand, 2018 CriLJ 4366, it was reiterated by the Jharkhand High Court that:

“Newspaper reports are at best hearsay evidence, as has been held by the Apex Court in the case of Laxmi Raj Shetty, AIR 1988 SC 1274 (supra), para – 25 and 26. Newspaper is not one of the documents referred to in S.78(2) of the Evidence Act (Section 77 of the Bharatiya Sakshya Adhiniyam), 1872 by which, allegation of act can be proved. The presumption of genuineness attached under S.81 of the Evidence Act (Section  80 of the Bharatiya Sakshya Adhiniyam)  to a newspaper report, cannot be treated as a proof of the facts reported therein.”

12. Presumption as to Gazettes in Electronic Forms

Section 81 of the Bharatiya Sakshya Adhiniyam (Section 81A of the Evidence Act) relating to Presumption as to Gazettes in electronic forms, reads as:

The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.

13. Presumption as to Document Admissible in England Without Proof of Seal or Signature – Section 82 of the Evidence Act (omitted)

Section 82 relating to Presumption as to document admissible in England without proof of seal or signature, reads as:

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.

This Provision is omitted in the Bharatiya Sakshya Adhiniyam.

14. Presumption as to Maps or Plans Made by Authority of Government

Section 82 of the Bharatiya Sakshya Adhiniyam (Section 83 of the Evidence Act) relating to Presumption as to maps or plans made by authority of Government, reads as:

The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.

In Biseswar Danpat v Saraswathi Dei and others AIR 2014 Ori. 97, Orissa High Court observed:

The maps in question are prepared by the Revenue Department and the same are sold by the State Government pursuant to letter of Board of Revenue in Annexure – 5 and more so the same is published by the Government and offered for sale. The maps in question are printed copy of the original purchased from the Government officers on payment of requisite fees. The said printed copy does not contain any certificate with seal and signature as it is not the certified copy. As per the provisions of S.36 of the Indian Evidence Act (Section 30 of the Bharatiya Sakshya Adhiniyam), there are two types of maps, namely, published map or charts offered for public sale and maps and plans made under authority of Government. Therefore, S.36 of the Evidence Act mandates that the statement of the facts in issue made in published maps generally offered for public sale themselves constitute to be a public document and the element of public document as enshrined in S.74 of the Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam)is well founded. Therefore, under S.83 of the Evidence Act(Section 82 of the Bharatiya Sakshya Adhiniyam), the Court must presume the said maps to be accurate purporting to be made by the authority of any State Government. So far as rejection of the application on the ground that the maps purchased from competent authority cannot be suo motu exhibited without its formal proof when the defendants disputed genuineness of the map is concerned, the contention is that no formal proof is necessary as there is no dispute regarding genuineness of the documents, for the fact is that the document map has been purchased from the various sources of the State Government having competence over the same. The said documents are public document within the meaning of S.74(1)(i) of the Indian Evidence Act. (Section 74 of the Bharatiya Sakshya Adhiniyam) As the said documents forming the Acts of the sovereign authority, the same should have been admitted without any objection as primary evidence under S.62 of the Evidence Act (Section 57 of the Bharatiya Sakshya Adhiniyam). When the competent authority has supplied the printed copy of the original on payment of requisite fees by virtue of letter under Annexure – 5, it can be very well presumed to be accurate and the said printed maps are admissible in evidence as relevant under S.36 and S.83 of Evidence Act (Section 82 of the Bharatiya Sakshya Adhiniyam). The printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act(Section 74 of the Bharatiya Sakshya Adhiniyam). In Secretary of State (AIR 1942 Bom 161) (supra), the Bombay High Court held that the printed copy of the original is the public document within the meaning of S.74 of the Indian Evidence Act (Section 74 of the Bharatiya Sakshya Adhiniyam).”

Section 30 reads as under:

Relevancy of statements in maps, charts and plans-

Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

Section 30 of the Bharatiya Sakshya Adhiniyam (S.36 of the Evidence Act) relates to relevancy and S.82 (S.83 of the Evidence Act) relates to presumption of genuineness.

15. Presumption as to Collections of Laws and Reports of Decisions

Section 83 of the Bharatiya Sakshya Adhiniyam (Section 84 of the Evidence Act) relating to Presumption as to collections of laws and reports of decisions, reads as:

The Court shall presume the genuineness of, every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the Courts of such country.

Section 83 (section 84 of the Evidence Act) and Section 32 (section 38 of the Evidence Act) are to be read together.

Section 32 (Section 38 of the Evidence Act) reads as follows:

When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published including in electronic or digital form under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book including in electronic or digital form purporting to be a report of such rulings, is relevant.

This section enables the court to verify foreign laws and reports of rulings of Courts of foreign countries from authorised published books and reports of such rulings. This section should be read with Section 83 of the Bharatiya Sakshya Adhiniyam (section 84 of the Evidence Act) which enables the court to presume genuineness of such books.

16. Presumption as to Powers-of-Attorney

Section 84 of the Bharatiya Sakshya Adhiniyam (Section 85 of the Evidence Act) relating to Presumption as to powers-of-attorney, reads as:

The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.

17. Meaning / Definition of Power of Attorney

Section 1 A of the Powers of Attorney Act defines Power-of-Attorney as:

“Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.

Section (21) “Power-of-attorney” includes any instrument … empowering a specified person to act for and in the name of the person executing it;

18. Authentication – Meaning

Presumption is with respect to execution and authentication The authentication is not merely attestation but something more.  ‘Authentication’ connotes within its scope assurance of identity as well as fact of execution. (See Citi bank v. Juggilal AIR 1982 Del. 487).

In the absence of the provisions contained in Section 84 of the Bharatiya Sakshya Adhiniyam (S.85 of the Evidence Act), any party to a suit etc. relying on a power of attorney would have to prove it like any other document by producing in the witness – box the executant of the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant etc., as the case may be. If that party is a company incorporated in India or in any other country, it would be further required to prove that the person or persons executing the power of attorney on its behalf had been duly authorised by means of a resolution duly passed in accordance with law and the articles of association. The purpose of Section 84 of the Bharatiya Sakshya Adhiniyam (S.85 of the Evidence Act) , is to eliminate all this cumbersome evidence in case such a power of attorney is executed before and authenticated by a Notary Public, or other authorities mentioned therein. (See Citi bank v. Juggilal AIR 1982 Del. 487).

19. Presumption – Person Who Executed The POA Complying Section Section 84 of the Bharatiya Sakshya Adhiniyam Had The Authority To Do So For The Company

In National Grindlays Bank v. Radio Electronics Corporation P. Ltd., (1978 Rajdhani LR 217). After detailed discussion, Gill, J. upon examining the various authorities and meaning of the word ‘authentication’ held as under: –

“In my view S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) does not draw any distinction between the kind of documents, viz; power of attorney executed by an individual and the one executed on behalf of a Company. Authentication of any of these instruments by a Notary Public raised a legal presumption that the same has been duly executed and the person or persons, who had executed, had the authority to do so. Undoubtedly such a presumption is not conclusive, being rebuttable.

The other party is, therefore, legally entitled to disprove such a presumption. The reason to incorporate such a provision in quite obvious. Its inclusion is intended to obviate the production of evidence as is otherwise enjoined to prove the execution of the document. Embarking on an inquiry and demanding proof about the authority of the executant would frustrate the very purpose for which S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam) has been engrafted. Moreover, asking for proof would have far reaching consequences. Apart from entailing delay and unnecessary expense, it would also hamper the entire trade, more particularly the international trade.”

In, Kamala Rani and Others v M/s Texmaco Ltd AIR 2007 Del. 147, Delhi High Court observed:

The purpose of S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) appears to be that a duly executed and authenticated power of attorney can be proved under S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam) without undue expenses to be incurred by producing the executant thereof or the original board resolution.

The reason is obvious. Banks, insurance companies and multinational companies empower officers to institute and file suits on their behalf. Large number of suits are filed by these organisations. If the original board resolution or the executant of the power of attorney has to submit itself / himself before the Court as a sine qua non to prove the power of attorney, practical difficulties would arise and unnecessary expenses would be incurred by the organizations to prove the document in the afore – noted manner.

I am in full agreement with the view taken by the learned Rent Control Tribunal that the authority of the person who had signed and verified the petition as also instituted the eviction petition stood duly proved by means of production of the authenticated and notarised power of attorney bearing the seal of the notary public.

 Decision of the Supreme Court reported as AIR 1997 SC 3 Union Bank of India v. Naresh Kumar is additionally relied upon by me. The said decision states that where a suit has been filed on behalf of a corporate body and is duly prosecuted by the person who had filed the suit, a presumption would arise that the person concerned was authorised to do so.

(See also Punjab National Bank v Kazan Singh and Others AIR 2004 P&H 282)

20. Presumption under Section 84 of the Bharatiya Sakshya Adhiniyam as to Powers-of-Attorney is Mandatory but Rebuttable

Presumption under Section 84 of the Bharatiya Sakshya Adhiniyam (S.85 of the Evidence Act) is Mandatory. Therefore, the burden lies on the challenger to establish that the said power of attorney was not duly executed and authenticated by the person by whom it purports to have been executed.

In, Kamala Rani and Others v M/s Texmaco Ltd AIR 2007 Del. 147, Delhi High Court observed:

Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. The use of the expression ‘shall presume’ shows that the section is mandatory and the Court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public.

In Wali Mohammad v. Jamal Uddin reported in AIR 1950 Allahabad 524 it is rightly stated:

“It is for this reason that a power of attorney bearing the authentication of a notary public or an authority mentioned in S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam) is taken as sufficient evidence of the execution of the instrument by the person who appears to be the executant on the face of it. The presumption, no doubt, is rebuttable. But unless rebutted the presumption stands and the document can be admitted in evidence as a document executed by the person alleged to have executed it without any further proof”

In Renuprova Paul v Sannyasi Charan Ghosh and Others, AIR 2005 Cal. 118, Calcutta High Court on the peculiar facts refused to draw presumption under S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam). The Court held:

….. there should be due compliance of Section 85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) read with Sec. 33 of the Indian Registration Act in respect of execution of the power of attorney. In the instant case, although all the parties are residents of city of Calcutta (Kolkata), but, I find that power of attorney was simply executed in the city of Bombay (Mumbai). There is no plausible reasoning in connection thereto. Therefore, such authenticated document cannot be a valid piece of evidence under Sec. 85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam). Section 33A of the Registration Act says that authentication will be made within whose sub-district the principal resides.

21. Attestation Not Mandatory For A Power Of Attorney

No law provides that attestation is mandatory for a Power of Attorney.

In K. A Pradeep v Branch Manager Nedungadi Bank and Others, AIR 2007 Ker. 269, High Court of Kerala, observed:

“Non- attestation by witnesses will not be fatal to the power of attorney since it is not at all obligatory that a power of attorney should be attested by two witnesses. What is necessary is  authentication.”

22. Presumption Of Regularity Of Notarial Acts

Under S.8(e) of the Notaries Act, 1952 the Notary is entitled, by virtue of his office, to administer oath to or take affidavit from any person. When such an act is done by him under his signature and seal, it has to be deemed to be a notarial act, as provided in sub-s. (2). That means, it must be accepted as an official act of the Notary. S.57(6) of the Evidence Act (Section 52(f) of the Bharatiya Sakshya Adhiniyam) authorises the court to take judicial notice of the seals of the Notaries Public. Notary is a person appointed under the Notaries Act and officially recognised in the Commercial World. Under S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam), there is presumption of execution and authentication for his acts. As held in Jugraj Singh and another v. Jaswant Singh and others (AIR 1971 S.C. 761), when there is an endorsement by the Notary Public that the document had been subscribed and sworn before him, there is the presumption of regularity of official acts attached to it. That presumption, unless otherwise shown, extends to the level that he satisfied himself in the discharge of official duties that the person who was executing was the proper person. There is the presumption of regularity envisaged by S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam). (New India Assurance Company v Radhakrishnan, 1990 KHC 380: 1990 (2) KLT 318 High Court of Kerala speaking through Justice Padmanabhan)

23. Notary Public Includes Notary Public Of Foreign Countries

Courts have consistently held that section 85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) is applicable to a power of attorney executed before a foreign notary public.

In National and Grindlays Bank Ltd. V. World Science News, (AIR 1976 Delhi 263), the Delhi High Court observed:

Once the original document is produced purporting to be a power of attorney so executed and attested as stated in S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam), the Court has to presume that it was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. There is no doubt that the section is not exhaustive and there are different legal modes of executing a power of attorney, but, once the power of attorney on its face shows to have been executed before, and authenticated by, a notary public, the Court has to so presume that it was so executed and authenticated….. The object of the section is to avoid the necessity of such affidavit of identity. Under S.57 sub-section (6) of the Evidence Act (Section 52(f) of the Bharatiya Sakshya Adhiniyam), the Courts have to take judicial notice of the seals of Notaries Public and when the seal is there, of which judicial notice is taken, there is no reason why judicial notice should not be taken of the signatures as well…… the purpose of S.57 and S.85 (Sections 52 and  84 of the Bharatiya Sakshya Adhiniyam) is to cut down recording of evidence. For such matters, like the due execution of a power of attorney in the present day of international commerce, there is no reason to limit the words “Notary Public” in S.85 or S.57 (Section 84 and 52 of the Bharatiya Sakshya Adhiniyam) to Notaries appointed in India. The fact that notaries public of foreign countries have been recognised as proper authorities for due execution and authentication for purpose of S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) is illustrated by the Supreme Court in case Jugraj Singh v. Jaswant Singh, (1971) 1 SCR 38 : (AIR 1971 SC 761). In this case the Supreme Court held that a power of attorney executed and authenticated before a notary public of California satisfied the test of S.85 of the Evidence Act and S.33 of the Indian Registration Act. If the interpretation of notary public is limited to notaries public appointed in this country only, it will become impossible to carry on commerce with foreign countries. Surely, S.57 of the Indian Evidence Act (Section 52 of the Bharatiya Sakshya Adhiniyam) enjoins upon the Courts to take judicial notice of seals of Notary Public. Such judicial notice cannot be limited to Notaries appointed in India only. This seems clear if the entire sub-section is read. Once, this conclusion is reached, there is no reason to limit the meaning of the expression “Notaries Public” in S.85 of the Indian Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) to Notaries appointed in India only.”

24. Notification Under S.14 of the Notaries Act,1952 Whether Mandatory for Recognising Foreign Notarial Acts and Application of Presumption Under S.85 of the Evidence Act – Conflicting Views

On this matter there are conflicting judicial opinion.

In the matter of Rei Agro Ltd and Others v Nil, AIR 2015 Cal. 54, Calcutta High Court Speaking through Justice Biswanath Somadder held that in the absence of notification under s 14 of the Notaries Act,1952, Notarial acts of a foreign country cannot be recognised or judicially noticed. Section 85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) cannot be read isolated it should be read with S 14 of the Notaries Act,1952. The Court observed:

A question, therefore, arises as to whether this Court can recognize a notarial act which took place before a notary public at Singapore. The answer to this question is clearly provided under S.14 of the Notaries Act, 1952, which reads as follows:

“Reciprocal arrangements for recognition of notarial acts done by foreign notaries – If the Central Government is satisfied that by law or practice of any country or place outside India, the notrarial acts done by notaries within India are recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification.”

None of the judgments, which have been referred to or relied upon by the learned senior counsel appearing on behalf of the petitioners, takes into consideration or even dwells upon the above quoted provision of the Notaries Act, 1952, Now, so far as S.85 of the Indian Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam) is concerned, it provides that the Court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice – Consul, or representative of the Central Government, was so executed and authenticated. ….the provision of S.85 of the Indian Evidence Act, 1872, cannot be read in isolation to the specific provision as contained under S.14 of the Notaries Act, 1952, in so far as notarial acts done by foreign notaries are concerned. For an Indian Court to recognise a notarial act done by a notary public at Singapore, it is imperative for the Central Government to issue a notification under S.14 of the Notaries Act, 1952, declaring that the notarial acts lawfully done by notaries in Singapore shall be recognised within India for all purposes, or as the case may be, for such limited purposes as may be specified in the notification. In other words, unilateral recognition by an Indian Court of a notarial act done by a foreign notary is impermissible in the absence of reciprocity of recognition as contemplated under S.14 of the Notaries Act, 1952. ….

Since there is clearly no such notification of the Central Government in the Official Gazette granting recognition to the notarial acts done by the notary public of Singapore, this Court is unable to take any judicial recognition of the document which has been handed over before this Court by the learned senior counsel appearing on behalf of the petitioners…..

But in Jaldhi Overseas PET Ltd v Bhushan Power and Steels Limited, 2017 KHC 5418: AIR 2017 NOC 1111, another single Judge of the Calcutta High Court relied on the Supreme Court Judgment in Jugraj Singh & Anr. Vs. Jaswant Singh & Ors. reported at AIR 1971 SCC 761 and In re K.K. Ray (Private) Ltd a judgment of the Calcutta High Court and a few other High Court decisions desisted from following Rei Agro Ltd and Others v Nil, AIR 2015 Cal. 54 and held that S.14 of the Notaries Act, 1952 is not mandatory. The Court observed:

The learned Senior Counsel relying upon In re K.K. Ray (Private) Ltd. reported at 37 Company Cases at 745 (last paragraph), Alan Kaye v. Recovery Officer, Employees’ Provident Fund Organization, W.B. & Ors. reported at AIR 2006 Cal. 158 (paragraphs 36, 37 & 39) and Charan Kaur alias Channo v. Pakhar Singh & Ors. reported at AIR (2004) Punjab & Haryana 121 (Paragraph 12) submitted that Courts have repeatedly held that considering international recognition of the notary in the modern world of commerce, industry and dealings between different nations and countries, affidavit sworn before Notary Public in a foreign country ought to be accepted, even in the absence of any notification regarding such reciprocal act done by a foreign notary in our country.

S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam)was enacted precisely to meet a situation as in the present case. The hyper technical point raised by the Judgement Debtor is a vile attempt to negate the legislative intent of S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam), and to defeat justice and equity which the said provision was intended to protect and advance.

 S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam) presumes that a power of attorney executed in a foreign country, duly authenticated by a notary public, must be presumed to have been validly executed and authenticated

It is submitted that the decision of this Hon’ble Court reported in Rei Agro Ltd. & Ors. (supra) is distinguishable on facts. In that case the petitioners were unable to produce a valid resolution of the Board and secondly, there does not appear to be any verification by the Ministry of Foreign Affairs, Singapore. Furthermore, the vital document, namely, Notaries Public Manual issued by Singapore Academy of Law was not brought to the notice of the learned Judge.

 In any event, the decision of the Hon’ble Court in Rei Agro Ltd. & Ors. (supra) is per incuriam as it did not consider the earlier decisions of this Hon’ble Court K. K. Ray (supra) and Alan Kaye (supra).

The Court in inter alia observed:

There is also an international treaty (i.e. the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, 1961) which shortens the chain of authentication. Under the treaty, public documents (which include notarial acts) that have been executed in the territory of a contracting state and which have to be produced in another contracting state do not need to be legalised. A simple certificate or ‘apostille’ in a prescribed form issued by the competent authority of the state from which the country originates will suffice. The United Kingdom and many other countries are parties to the treaty

In Re: K. K Ray (supra) Justice P.B. Mukharji, former Chief Justice of this Court in His Lordship’s erudite judgment traced the history of the institution of Notaries Public after a profound and insightful treatment of the subject observed: – 

“The Notary is now internationally known today in the modern world of commerce, industry and dealings between different nations and countries. Reciprocity between different countries is its essential basis. Without this reciprocity and mutual respect the whole system and rationale of notarial acts will break down, to the great detriment of commercial transactions throughout the world and their due administration by courts of law in different countries and will jeopardise international commerce, law merchant and administration of justice. It is precisely to provide facilities of receiving affidavits, documents, protests of bills of exchange and other commercial papers that this institution of Notary Public grew up to fulfil a very practical need. Unnecessary or illogical impediments should not be put on his way. No doubt that does not mean that law of the courts should not ensure reasonable authenticity and dependability of notarial acts. When I find that this notarial act of Elizabeth Levy has been certified by the county clerk and by the clerk of the Supreme Court of New York, the court of record under its seal, and when I find that this Notary Public is authorised to administer oath by the laws of the State of New York, U.S.A. and further that there is the certificate of the Consulate General of India, an office recognised expressly by S.3 of the Indian Diplomatic and Consular Officer (Oaths and Fees) Act, 1948, to administer oath and take affidavit, then the dependability and authenticity of such notarial act are in my judgment sufficiently ensured and cannot be doubted.

On this very important and practical problem of reciprocity, the court requested Mr. R. K. Deb as amicus curiae to appear as a senior Notary Public of this city to inform the court about the Indian practice and experience in dealing with notarial acts and reciprocity between India and U.S.A. Mr. Deb has informed the court that Indian notarial act is recognised and reciprocated in U.S.A. and similarly the notarial acts of U.S.A. have been accepted and recognised in India in diverse matters and documents, specially when many industrial, commercial and business transactions are today entered between “India and U.S.A. Mr. Rashmohan Chatterjee of the instructing solicitors, Messrs. Orr, Dignam and Company and Mr. Shankar Ghosh also support the same practice and experience on the point of reciprocity between India and U. S, A. regarding notarial acts. Mr. Deb has told the that he himself in his professional capacity as a Notary Public in India has notarially noticed documents of the U.S.A. and his notarial acts have been recognised in the U.S.A. Similarly India has recognised notarial acts done by American Notaries. I am therefore satisfied that there is reciprocity with mutual recognition of notarial acts between India and the U.S.A.

I would, however, draw the pointed attention of the Central Government of India to S.14 of the Notaries Act, 1952. That is a section on the reciprocal recognition of the acts done by foreign notaries. It provides as follows:

“If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by Notaries within India are recognised for all or any limited purposes of that country or place, the Central Government may, by notification in the official gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.”

It is time that the Central Government of India issued a notification under S.14 of the Notaries Act recognising the existing reciprocity of notarial acts between India and U.S.A. in order that there may be no doubt or confusion in respect of the same and that individual cases need not come up to courts for admission.”

The Court in Jaldhi further observed:

The object of the Notaries Act, 1952, was to empower the Central and State Governments to appoint notaries, not only for the limited purposes of the Negotiable Instruments Act, but generally for all recognised notarial purposes, and to regulate the profession of such notaries. ….. S.14 of the Notaries Act, 1952, empowers the Central Government to issue notification recognising notarial acts lawfully done by notaries in foreign countries on being satisfied that the notarial acts of India is also recognised by such country. In the modern world of commerce, industry and dealings between different nations and countries notary plays a very important and pivotal role. Notary internationally is a recognized mode of acceptance of a foreign document. The Notaries Act, 1952, itself recognises that in this modern world notarial acts of a foreign country is required to be recognised provided the other countries also recognises and accept the notarial acts of India. Reciprocity between different countries is its essential basis. Without this reciprocity and mutual respect the whole system and rational of the notarial acts would break down and would seriously affect commercial transactions throughout the world and their due administration by courts of law in different countries and jeopardise International Trade and Commerce and administration of justice.

 It is precisely to provide facilities of receiving affidavits, documents and other commercial papers that this institution of notary public grew to fulfil very practical need. Unnecessary or illogical or irrational or unmeritorious obstructions and impediments should not be put on its way. This, however, does not mean that the court would accept a notarial attestation which does not conform to the law or without ensuring reasonable authenticity and dependability of Notarial Acts, like the requirement under S.3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. Considering the International recognition of the notary public in the modern world of commerce, industry and dealings between different nations and countries, this High Court in K. K. Roy (supra) accepted the affidavit sworn before the Notary Public in U.S.A. even in the absence of any notification regarding such reciprocal recognition of the Acts done by the foreign notaries in our country in terms of S.14 of the Notaries Act, 1952. The question would arise whether a power of attorney notarised in a foreign country would be accepted in India with whom, India do not have any reciprocal arrangement. In K. K. Roy (supra) this problem arose. A foreign notary duly authorised by the appropriate laws of the State of New York, USA, administered oath in the country where affidavits was sworn. This affidavit was sought to be relied in a winding up proceeding initiated before this court as a proof of authority to represent the foreign company before this court. The said affidavit was accepted on the principle that the comity of Nations, lex loci relating to procedure and existence of foreign law being proved and established, it demands that such affidavit should be recognised by the Indian courts. To deny recognition in such circumstances is to deny foreign litigants seeking redress and justice in Indian Courts.

In the instant case, power of attorney on the face of it shows to have been authenticated before notary public in Singapore in view of S.85 of the Evidence Act(Section 84 of the Bharatiya Sakshya Adhiniyam), the Court has to presume that it was so executed. Once the original document was produced purported to have been executed and attested in accordance with the provisions of S.85 of the Evidence Act, the presumption under S.85 of the Evidence Act (Section 84 of the Bharatiya Sakshya Adhiniyam)would follow and the Court would presume that it was so executed and authenticated. The Court shall presume that all the necessary requirements for the proper execution of the power of attorney have been duly fulfilled. There is a presumption or regularity of official acts and there cannot be any doubt that the notary public must have satisfied himself in discharging of his duties that the person who was executing the power of attorney was the proper person. (See Jugraj Singh (supra) and Citibank N.A. (supra))

 In Jugraj Singh (supra), the Hon’ble Supreme Court accepted a document, which was authenticated before a notary public of California, U.S.A. Although, the decision in K.K.Ray (supra) was not considered by the Supreme Court but it appears that the Hon’ble Supreme Court, in fact, has approved the said principle. The Supreme Court accepted the second power of attorney which was found to have been executed before a proper notary public in compliance with the laws of California and the document was authenticated as required by the law. The objection that the notary public did not say in his endorsement that the constituted attorney has been identified to his satisfaction was considered to be immaterial as there is a presumption of regularity of official acts. However, the said decision did not consider the implication of S.14 of the Notaries Act, 1952.

 A fairly recent judgment of the Bombay High Court noticed both K.K. Ray (supra) and REI Agro Ltd.(supra) and held that notification under S.14 of the Notaries Act is not mandatory inasmuch as S.85 of the Evidence Act applies equally to documents authenticated by notary public of other countries and there is no reason to import the provisions of Notaries Act for interpreting the provisions of the Evidence Act. For raising the statutory presumption S.85 and S.57 (Sections 84 and 52 of the Bharatiya Sakshya Adhiniyam) do not require any recognition of notarial acts of the country or place as the case may be where such power of attorney is executed or authenticated. Moreover, there is nothing in the language of S.14 which requires notarial acts which are declared as recognized by the Central Government by the notification in the official gazette are to be recognized in India. (Zhejiang Medicines & Health Products Import and Export Co. Ltd. Vs. Devanshi Impex Pvt. Ltd. reported at 2016 SCC OnLine Bom 10041). However a contrary view was taken by a Division Bench of High Court of Kerala in Karachan Veettil Mariyam Vs. Alima Beevi reported at 2015 SCC Online Ker 31317 relying on Rei Agro Ltd. (Supra). The Division Bench however did not notice K.K. Ray (Supra) and has not discussed the issues raised in this proceeding.

 In S.14 of the Notaries Act, the legislature has consciously used the verb “may” as opposed to “shall”. The words “may” “shall” “must” do manifest the intention of the legislature and they may indicate whether the provisions of rule are directory, mandatory or compulsory. It is elementary that the duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and not to travel beyond it and no outside consideration can be called in aid to find that intention.

K.K. Ray (supra) recognizes the principle that foreign litigants can seek justice in India only if the Notaries Act of our Country is recognized in that foreign country and Notaries Act of such country is recognized in our country. In Rajesh Wadhwa Vs. Dr. (Mrs.) Sushma Govil reported at AIR 1989 Del 144: 37 (1989) DLT 88 a notarial attestation by a Notary Public of U.S.A. was accepted. It was held that there is no need for the Central Government to issue notice under S.14 before such acts are legally recognized by the courts. S.14 was held to be an enabling provision. The reason being that no provision in the Notaries Act, 1952 shows that previous practice and procedure of notarial acts being recognised in India in respect of the Notaries of foreign countries are not to be recognised henceforth after the commencement of the Notaries Act, 1952. The views of the Allahabad, Delhi and Punjab & Haryana High Court appears to be that application of S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam) cannot be limited only to the Notaries as defined in the Notaries Act and that a document like power of attorney duly attested by a notary public coming from a foreign country must be presumed to be validly executed as has been laid down under S.85(Section 84 of the Bharatiya Sakshya Adhiniyam). (Abdul Jabbar Vs. Second Addl. District Judge Orai, AIR 1980 All 369; Rajesh Wadhva Vs. Sushma Govil, AIR 1989 Del 144; Chanan Kaur Vs. Pakhar Singh, AIR 2004 P & H 121.)

It appears that in Rei Agro Pte Ltd. (supra) the earlier decision in K. K. Ray (supra) was not noticed. The learned Single Judge also did not have any occasion to consider the previous and prevailing practise and procedure between the two countries and the elaborate procedure followed in Singapore in authenticating the power of attorney. The notary public manual issued by the Singapore Academy of Law was also not considered. It also does not appear from the judgment that the issue as to whether absence of a notification under S.14 of the Notaries Act would be a bar from accepting a notarial certificate issued by a Notary Public of a foreign country when the foreign country recognizes notarial certificate issued by the Notary Public of India. When a particular point was never raised and argued, it cannot be inferred that a decision has been given on that particular point. Moreover, it appears that the learned Single Judge found various discrepancies in the documents as the petitioner was unable to produce a valid Board Resolution. In view of the law laid down in K.K.Ray (supra) and Jugraj Singh (supra) and taking into consideration that a due procedure was followed by the Notary Public at Singapore in authenticating the documents, the objection raised with regard to the authority of the deponent to form the affidavit is rejected.”

25. “Jaldhi Overseas” to be Correct and Pragmatic and “Rei Agro Limited” Appears to be Hyper Technical and Per incurrium

Legal proposition laid down in Jaldhi Overseas PET Ltd v Bhushan Power and Steels Limited, appears to be correct, whereas, In the matter of Rei Agro Limited and others appears to be hyper technical and Per incurrium of K.K.Ray (supra) and Jugraj Singh (supra)

A single bench of the High Court of Kerala in William Babu and another v Helma Roy Elias Carmel 2018 (1) KLT 828, quoted with approval the Calcutta High Court decision in Rei Agro Limited. The Court observed:

“The aforesaid question was considered by the Calcutta High Court in the matter of Rei Agro Limited and others [2015 KHC 1874: AIR 2015 Cal. 54], wherein it was held that no notification within the meaning of S.14 of the Notaries Act is available in the case of a notary of Singapore. It was held that the presumption under S.85 of the Indian Evidence Act is not available to such a notarial act by a notary public of Singapore.”

In Mathew K. M @ Dayee v Giji Mathew @ Giji M S and Another 2017 (4) KHC 529: 2017 (4) KLJ 88, A division bench of the High Court of Kerala recognised and applied presumption under S 85 in the case of a Power of Attorney executed in Illinois, USA.

“The Power of Attorney is seen attested in the State of Illinois and is authenticated by a notary public which is enough for the purpose of raising a presumption under S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam). When the Sub Registrar had registered Ext.A2 document, it cannot be contended that he had not seen Ext.A3. Therefore, existence of the original of Ext.A3 is a fact which raises a presumption of execution and authentication. Consequently, the registration also becomes valid under law. When a person challenges the Power of Attorney, it is for that person to rebut the presumption available under S.85 (Section 84 of the Bharatiya Sakshya Adhiniyam).”

An authoritative pronouncement on this issue by the Supreme is required to avoid inconsistent views by the High Courts on the question whether presumption under S. 85 (Section 84 of the Bharatiya Sakshya Adhiniyam)would apply to a power of attorney notarised in a foreign state which is not notified under S.14 of the Notaries Act.  

26. Presumption as to Electronic Agreements

Section 85 of the Bharatiya Sakshya Adhiniyam (Section 85A of the Evidence Act) relating to Presumption as to electronic agreements, reads as:

The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.

27. Presumption as to Electronic Records and Digital Signatures

Section 86 of the Bharatiya Sakshya Adhiniyam (Section 85B of the Evidence Act) relating to Presumption as to electronic records and digital signatures, reads as:

(1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.

(2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that–

(a)  the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;

(b)  except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall cerate any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.

28. Presumption as to Electronic Signature Certificate

Section 86 of the Bharatiya Sakshya Adhiniyam (Section 85C of the Evidence Act) relating to Presumption as to Electronic Signature Certificate, reads as:

The Court shall presume, unless contrary is proved, that the information listed in an Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.

29. Presumption as to Due Execution, etc., of Documents Not Produced After Notice to Produce

Section 91 of the Bharatiya Sakshya Adhiniyam (Section 89 of the Evidence Act) relating to Presumption as to due execution, etc., of documents not produced, reads as:

The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

Notice to Produce under Section 64

Section 64 of the Bharatiya Sakshya Adhiniyam (Section 66 of the Evidence Act), provides that:

Secondary evidence of the contents of the documents referred to in clause (a) of section 60, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate or representative, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it: —

(a) when the document to be proved is itself a notice;

(b) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(d) when the adverse party or his agent has the original in Court;

(e) when the adverse party or his agent has admitted the loss of the document;

(f) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

Presumption under Section 91 of the Bharatiya Sakshya Adhiniyam (S.89 of the Evidence Act)  arises when the document is not produced and the opposites party becomes entitled to give secondary evidence.

In a decision of the Division Bench of Bombay High Court reported in Kashibai v. Vinayak. (AIR 1956 Bom. 65) it has been reiterated that when such a notice is given to a party to produce the document and if the evidence satisfactorily shows that the party was in possession of the document, the party giving such a notice is entitled to lead secondary evidence under S.65 of the Evidence Act (Section 60 of the Bharatiya Sakshya Adhiniyam). It is further held that in such circumstances a presumption arises under S.89 of the Evidence Act (Section 91 of the Bharatiya Sakshya Adhiniyam) about the execution of the document. S.89 of the Evidence Act says that the Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law. (See also Dilip Singh v Dhaniram Narayandas  AIR 1976 Bom. 38

30. Application Of Presumption Under S 89 When Notice Under S 64 is Dispensed

In Vishwanath Vithoba v. Genu Kisan AIR 1956 Bom 555, the plaintiff had produced certified copies of three sale deeds at Exs. 75, 76 and 77. It was urged that these copies of the sale deeds were not admissible in evidence. The plaintiff had deposed that the original sale deeds were not in his possession and were with the first defendant No notice for the production of the original sale deeds was given by the plaintiff to the first defendant. It was, therefore, urged that the certified copies could not be admitted in evidence as no notice for production of the originals was received by the first defendant as required by cl. (a) of S.65, Evidence Act (Section 60 of the Bharatiya Sakshya Adhiniyam). The proviso to S.66 (Section 64 of the Bharatiya Sakshya Adhiniyam), however, was resorted to dispense with such notice because as observed by the Privy Council in Surendra Krishna v. Mirza Mahamed Syed Ali AIR 1936 PC 15, the only purpose of a notice under S.65 and S.66, Evidence Act (Section 60 and 64 of the Bharatiya Sakshya Adhiniyam) is to give the party an opportunity of producing the original document to secure, if he pleases, the best evidence of its contents. In the background of these facts it was observed that secondary evidence is admissible when the party offering evidence of its contents cannot, for any reason, not arising from his own default or neglect, produce the original document in reasonable time and under S.66 (Section 64 of the Bharatiya Sakshya Adhiniyam) the court has absolute power, when it thinks fit, to dispense with the notice. (See also Patel Manilal Chhaganlal v. Municipal Corporation Surat, AIR 1978 Guj. 193 Gujarat High Court)

31. Presumption as to dowry death – Section 118 of the Bharatiya Sakshya Adhiniyam (Section 113B of the Evidence Act)

Section 118 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 113B of the Evidence Act)

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 80 of the Bharatiya Nyaya Sanhita, 2023.

Where the prosecution has shown that ‘soon before her death’ the deceased was subjected to cruelty or harassment by the husband or in – laws in connection with demand for dowry, the presumption under Section 118 of the Bharatiya Sakshya Adhiniyam (S.113B of Evidence Act) arises and the Court shall presume that such person who had subjected the woman to cruelty or harassment in connection with any demand for dowry shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused.

32. Dowry Death – Definition

Section 80 of the Bharatiya Nyaya Sanhita, 2023 (Section 304B of IPC) defines Dowry death as under:

(1) 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.

Explanation: – For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Section 80 of the Bharatiya Nyaya Sanhita, 2023 (S.304B (1) of the I.P.C, 1860) has 2 limbs. First limb defines dowry death and the second limb deals with the legal consequence of occurrence of dowry death namely, that the husband or such other relative of the husband who soon before the death of the lady was found to have subjected the lady to cruelty or harassment shall conclusively be held to be guilty of the offence of dowry death. Clause (2) prescribes punishment.

33. Legislative Intent of Ss 80 and 85 of the Bharatiya Nyaya Sanhita, 2023 (S.304 – B, 498 – A, IPC), Ss 117 and  118 of the Bharatiya Sakshya Adhiniyam (S. 113 – A and 113 – B of the Indian Evidence Act)

Sections 113A and 113B were introduced in the Evidence Act in the year 1986.

In State of Punjab v. Iqbal Singh, 1991 (3) SCC 1: 1991 CriLJ 1897 the Supreme Court dealt with the legislative intent behind the enactment of S.304 – B, 498 – A, IPC and S. 113 – A and 113 – B of the Indian Evidence Act (Ss 80 and 85 of the Bharatiya Nyaya Sanhita, 2023 and Ss 117 and 118 of the Bharatiya Sakshya Adhiniyam ) as under:

“The legislative intent is clear to curb the menace of dowry deaths etc. With a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing S.113 – A and 113 – B in the Evidence Act (Sections  117 and 118 of the Bharatiya Sakshya Adhiniyam ) tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members S. 498 – A, IPC (Section 85 of the Bharatiya Nyaya Sanhita) would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under S. 304 – B, IPC (Section 80 of the Bharatiya Nyaya Sanhita). When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and / or harassment for, or in connection with, any demand for dowry, S. 113 – B, Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam ) provides that the court shall presume that such person had caused the dowry death. Of course, if there is proof of the person having intentionally caused her death that would attract S. 302, IPC (Section 85 of the Bharatiya Nyaya Sanhita). Then we have a situation where the husband or his relative by his willful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of S. 306, IPC (Section 108 of the Bharatiya Nyaya Sanhita). In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide.”

34. Scope of Section 118 of the Bharatiya Sakshya Adhiniyam  (S 113 B Evidence Act)

The applicability of the said Section 118 of the Bharatiya Sakshya Adhiniyam (S. 113 – B of the Evidence Act) is limited to cases ‘when the question is whether a person has committed dowry death of a woman….’

That requires proof of two further facts.

Firstly, it is shown that soon before her death such a woman had been subjected by such person to ‘cruelty’ or ‘harassment’ and,

Secondly, that the cruelty of her husband was ‘for or in connection with any demand for dowry’. If these two facts are established by evidence the presumption under S. 113 – B (Section  118 of the Bharatiya Sakshya Adhiniyam ) as to the commission of the offence under S. 304 – B, IPC (Section 80 of the Bharatiya Nyaya Sanhita). would be attracted straightway.

(See Bhoora Singh v State 1993 CriLJ 2636, Allahabad High Court)

State of Kerala v Mohanan Pillai, ILR 1991 (2) Ker. 430: 1991 (1) KLT 494, A division bench of the Kerala High Court, speaking through Justice K.T Thomas, elucidated the provision in the following words:

The provision mandates that the Court should proceed with a legal presumption in certain cases that the accused had caused ‘dowry death’. Such presumption will arise when prosecution establishes that the deceased had been subjected to cruelty or harassment by the accused for or in connection with any demand for dowry. Once the said factum is established, then the burden shift on to the accused to prove that death was on account of some other reason. If he fails to discharge the burden, the Court is entitled to find him guilty of the offence. The presumption envisaged in S.113-B (Section  118 of the Bharatiya Sakshya Adhiniyam ) is not just a factual presumption. The court cannot obviate or bypass the legal presumption if once prosecution satisfies the court that the accused caused harassment soon before the death of the deceased. Whenever the Evidence Act directs that the court shall presume a fact, the court cannot but regard such fact as proved until it is disproved. But no such presumption arises until the prosecution succeeds in establishing the primary factum that the accused had harassed the deceased soon before her death with demand for dowry.

The presumption shall be raised only on the proof of the following essentials:  –

(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under S.304 – B, IPC. (Section 80 of the Bharatiya Nyaya Sanhita))

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.

In Baljeet Singh v. State of Haryana AIR 2004 SC 1714, the Supreme Court set out the condition precedent for establishing offence under S.304B of I.P.C (Section 80 of the Bharatiya Nyaya Sanhita) as under:

  1. a) That a married woman had died otherwise than under normal circumstances;
  2. b) such death was within 7 years of her marriage; and
  3. c) the prosecution has established that there was cruelty and harassment in connection with the demand for dowry soon before her death.

35. Cruelty and Demand For Dowry Must Be Proved For Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam S.113 B of the Evidence Act

In Baijnath and Others v. State of Madhya Pradesh, AIR 2016 SC 5313 the Supreme Court considered the legislative mandate to invoke the presumption under S.113 B of the Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam) and held as under:

Proof of cruelty or harassment by the husband or her relative or the person charged is thus the sine qua non to inspirit the statutory presumption, to draw the person charged within the coils thereof. If the prosecution fails to demonstrate by cogent coherent and persuasive evidence to prove such fact, the person accused of either of the above referred offences cannot be held guilty by taking refuge only of the presumption to cover up the shortfall in proof.

 The legislative premature of relieving the prosecution of the rigour of the proof of the often practically inaccessible recesses of life within the guarded confines of a matrimonial home and of replenishing the consequential void, by according a presumption against the person charged, cannot be overeased to gloss – over and condone its failure to prove credibly, the basic facts enumerated in the Sections involved, lest justice is the casualty.

This Court while often dwelling on the scope and purport of S.304B of the Code and S.113B of the Act (Section  118 of the Bharatiya Sakshya Adhiniyam ) have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of S.304B as in Shindo Alias Sawinder Kaur and another v. State of Punjab – 2011 (11) SCC 517 and echoed in Rajeev Kumar v. State of Haryana – 2013 (16) SCC 640. In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under S.304B of the Code (Section 80 of the Bharatiya Nyaya Sanhita) is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Act (Section  118 of the Bharatiya Sakshya Adhiniyam ). It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao – 2003 (1) SCC 217 to the effect that to attract the provision of S.304B of the Code (Section 80 of the Bharatiya Nyaya Sanhita), one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry”.

In another decision reported in Devender Singh and Others v. State of Uttarakhand, 2008 (16) SCC 417another 3 Bench decision, the Supreme Court considered the ingredients of S.304B of I.P.C within the ambit of S.113B of the Evidence Act (Section  118 of the Bharatiya Sakshya Adhiniyam )and finally confirmed conviction imposed against the husband under S.304B of I.P.C (Section 80 of the Bharatiya Nyaya Sanhita) while acquitting appellants 2 and 3 on the finding that there is no specific role with regard to the demand of dowry and nor any specific instances of cruelty and harassment been ascribed to the appellants 2 and 3 except for the general assertion against appellants 2 and

36. Standard of Proof of Cruelty required for Drawing Presumption Under Section 118 of the Bharatiya Sakshya Adhiniyam (S.113 B of the Evidence Act)

Mishra V. K v. State of Uttarakhand, AIR 2015 SC 3043: 2015 CriLJ 4021 (SC), a 3 Judge Bench of the Supreme Court speaking through Justice Bhanumathi observed:

It is to be noted that in a case where demand of dowry is alleged such demands are confined within the four walls of the house and known only to the members of both sides of the family. In such cases, independent and direct evidence with regard to the occurrences is ordinarily not available. That is why the Legislature has introduced S.113A and S.113B in the Evidence Act (Sections 117 and 118 of the Bharatiya Sakshya Adhiniyam) by permitting presumption to be raised in certain circumstances.

In Sher Singh @ Partapa vs. State of Haryana, 2015 (1) SCR 29, it had been held therein that the use of word ‘shown’ instead of ‘proved’ in S.304B IPC (Section 80 of the Bharatiya Nyaya Sanhita) indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, ‘shown’ will have to be read up to mean ‘proved’ but only to the extent of preponderance of probability. Thereafter, the word ‘deemed’ used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The ‘deemed’ culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong ‘presumption’ of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in Ramakant Mishra @ Lalu etc. vs. State of U.P., 2015 (3) SCALE 186.

37. “Soon before” is a Relative Term and no Strait – Jacket Formula Can Be Laid Down as to the Time Frame

A conjoint reading of S.113 – B of the Act (Section 118 of the Bharatiya Sakshya Adhiniyam) and S.304 – B, IPC (Section 80 of the Bharatiya Nyaya Sanhita) shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to ring it within the purview of the “death occurring otherwise than in normal circumstances.” The expression “soon before” is very relevant where S.113 – B of the Act (Section 118 of the Bharatiya Sakshya Adhiniyam) and S.304 – B IPC (Section 80 of the Bharatiya Nyaya Sanhita) are pressed into service. Prosecution is obliged to show that soon before the occurrence here was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon circumstances of each case and no strait – jacket formula can be laid down as to what would constitute a period soon before the occurrence. It would be hazardous to indicate any fixed period. The importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under S.113 – B of the Act (Section 118 of the Bharatiya Sakshya Adhiniyam ). The expression “soon before her death” used in the substantive S.304 – B, IPC and S.113 – B of the Act (Section 118 of the Bharatiya Sakshya Adhiniyam) is pregnant with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon after” used in S.114, Illustration (a) of the Act (Section 119 of the Bharatiya Sakshya Adhiniyam) is relevant. It lays down that a Court may presume that a man who is in the possession of goods “soon after” the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that 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 the concerned death. If the 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. (Keshab Chandra Panda 1995 CriLJ 174, through Justice Arijith Pasayat, (Orissa High Court)

The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that 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 the 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. (Baldev Singh v. State of Punjab AIR 2009 SC 913 Justice Arijith Pasayat)

In Rajinder Singh v. State of Punjab, AIR 2015 SC 1359, the Supreme Court held that “soon before” in S.304B, is not synonymous with “immediately before”. (See also Satbir Singh and Another v. State of Haryana, AIR 2021 SC 2627,

In, the expression “soon before her death” used in the substantive section of 304B of I.P.C (Section 80 of the Bharatiya Nyaya Sanhita) and S.113B of the Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam) is present with the idea of proximity test.

No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon before” in S.114 illustration (a) of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) is relevant. It lays down that a man who is in the possession of goods “soon after theft” is either the thief or has received the goods knowing the same to be stolen, unless he can account for his possession. The determination of the period which can come with the term soon before’ is left to be determined by the courts depending upon facts and circumstances of each case. Suffice, however, to indicate that 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.

38. Standard of Proof for Rebutting the Presumption under S 113 B (Section 118 of the Bharatiya Sakshya Adhiniyam) is Preponderance of Probabilities’

Ajayakumar and Another v. State of Kerala, 2022 CriLJ 4258: 2022 KHC 596, High of Kerala considered the question of Standard of Proof for Rebutting the Presumption under S 113 B of the Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam) and held that it is Preponderance of Probabilities’. The Court observed:

Once the prosecution succeeded in establishing that the death of the lady was the outcome of cruelty or harassment by her husband or any relative of her husband soon before her death within a period of 7 years of her marriage, if the accused wants protection from the said catch, the burden is on him to disprove and if he fails to rebut the presumption under S.113B of the Evidence Act(Section 118 of the Bharatiya Sakshya Adhiniyam), the court is bound to act on it. To put it differently, S.113B of the Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam), casts a reverse burden on the accused to disprove the prosecution case. Then the question is; what is the standard of proof in cases involving reverse burden? The Apex Court considered the same in the decision reported in (2008 (16) SCC 417: 2008 KHC 5054), Noor Aga v. State of Punjab and Another, while interpreting the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, wherein also a reverse burden is cast upon the accused. In this judgment, the Apex Court considered the draconian provisions in the NDPS Act and it was held that though the Act contains draconian provisions, it must, however be borne in mind that the Act was enacted having regard to the mandate contained in international conventions on narcotic drugs and psychotropic substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, by itself, would not render the impugned provisions unconstitutional. It was concluded in the said judgment that S.35 and S.54 are not ultra – vires the Constitution of India and ultimately it has been held that the constitutionality of a penal provision placing burden of proof on the accused must be tested on the anvil of the State’s responsibility to protect innocent citizens. Even then, an initial burden exists upon the prosecution and only when it stands satisfied, the reverse burden would arise and the standard of proof required to prove the guilt of the accused on the prosecution is beyond all reasonable doubt’. But it is preponderance of probabilities’ on the accused. Thus the law is clear on the point that proof of reverse burden shall be discharged on the basis of preponderance of probabilities’.

(See also Shivanath Shahni v State of Bihar 2019 CriLJ 793)

39. Summary of Law of Section 80 of the Bharatiya Nyaya Sanhita and Section 118 of the Bharatiya Sakshya Adhiniyam (S.304 – B IPC and S.113 – B of the Evidence Act)

In Baldev Singh v. State of Punjab AIR 2009 SC 913, Supreme Court summarised the law with respect to S.304 – B IPC and S.113 – B (Section 118 of the Bharatiya Sakshya Adhiniyam) of the Evidence Act as follows:

(1) S.304 – B IPC (Section 80 of the Bharatiya Nyaya Sanhita) must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

(2) The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under S.304B IPC. (Section 80 of the Bharatiya Nyaya Sanhita) Once these ingredients are satisfied, the rebuttable presumption of casualty, provided under S.113B of the Evidence Act (Section 118 of the Bharatiya Sakshya Adhiniyam) operates against the accused.

(3) The phrase “soon before” as appearing in S.304B IPC (Section 80 of the Bharatiya Nyaya Sanhita) cannot be construed to mean “immediately before”. The prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

(4) S.304B IPC (Section 80 of the Bharatiya Nyaya Sanhita) does not take a pigeonhole approach in categorising death as homicidal or suicidal or accidental. The reason for such non – categorisation is due to the fact that death occurring “otherwise than under normal circumstances” can, in cases, be homicidal or suicidal or accidental.”

In this case while confirming the conviction imposed by the trial court and the High Court under S.304B (Section 80 of the Bharatiya Nyaya Sanhita) and under S.498A of I.P.C (Section 85 of the Bharatiya Nyaya Sanhita), the Supreme Court also upheld acquittal found by the High Court under S.306 of I.P.C (Section 108 of the Bharatiya Nyaya Sanhita).

In, State of Madhya Pradesh v. Jogendra and Another, 3 Bench of the Supreme Court considered the menace of dowry death while dealing with a case alleging commission of offences under S. 304B, S. 498A and S. 306 of I.P.C. (Sections 80, 85 and 108 of the Bharatiya Nyaya Sanhita) laid down the following as the 4 most fundamental constituent for attracting the provisions of S.304B of I.P.C. (Section 80 of the Bharatiya Nyaya Sanhita):

(i) that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance;

(ii) that such a death must have occurred within a period of seven years of her marriage;

(iii) that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and

(iv) that such a cruelty or harassment must have been for or related to any demand for dowry.

40. Presumption as to absence of consent in certain prosecution for rape – Section 120

Section 120 of the Bharatiya Sakshya Adhiniyam (corresponding to Section 114A of the Evidence Act) reads as:

In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not Consent, the Court shall presume that she did not consent.

Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in section 63 of the Bharatiya Nyaya Sanhita, 2023.

Section 63 of the Bharatiya Nyaya Sanhita, 2023. (Section 375 IPC) defines rape and section 64(1) and 64(2) of the Bharatiya Nyaya Sanhita, 2023 (Section 376 (1) and 376(2)) IPC provide for punishment for various categories of rape.

Sections 375 and 376 IPC reads as under:

Section 375: Rape

A man is said to commit “rape” if he–

(a)     penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b)     inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c)      manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d)     applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:–

First.– Against her will.

Secondly.– Without her consent.

Thirdly.– With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.– With or without her consent, when she is under eighteen years of age.

Seventhly.– When she is unable to communicate consent.

Explanation 1.– For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2.– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.-A medical procedure or intervention shall not constitute rape.

Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Section 376: Punishment for rape

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,–

(a)     being a police officer, commits rape–

(i)      within the limits of the police station to which such police officer is appointed; or

(ii)     in the premises of any station house; or

(iii)    on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or

 (b)     being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or

 c)      being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d)     being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or

 (e)     being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

 (f)      being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

 (g)     commits rape during communal or sectarian violence; or

 (h)     commits rape on a woman knowing her to be pregnant; or

 [x x x x]

 (j)      commits rape, on a woman incapable of giving consent; or

 (k)     being in a position of control or dominance over a woman, commits rape on such woman; or

 (l)      commits rape on a woman suffering from mental or physical disability; or

(m)    while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

 (n)     commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

 Explanation.– For the purposes of this sub-section,–

 (a)     “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

 (b)     “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

 (c)      “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861);

(d)     “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.]

(3)     Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.

Rape is a very heinous crime. (Section 376 (2) of IPC) enumerates a few even more grievous types of rape.  Direct evidence other than victim’s testimony are never or rarely available in rape cases. In the infamous Tukaram v State of Maharashtra Air 1979 SC 185 also known as Mathura case, a girl who was a victim of kidnap was allegedly raped by 2 policemen in a police station. The Supreme Court reversed the conviction and acquitted the accused. The court highlighted the following reasons for acquittal:

  1. no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false
  2. Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P. W. 8) had recorded her statement, she and Gama had started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nushi) and had practically left the police station, she would be so over awed by the fact of the appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake off the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no other than her brother, her aunt and her lover, and her conduct in meekly following Ganpoat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission”.
  3. it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of S.375 of the I. P. C. were present in the case of the sexual intercourse attributed to Ganpat appellant.

There was much criticism against this judgment. There were deliberations for change in rape law and related law of evidence. Later S114A was introduced in the Evidence Act (Section 120 of the Bharatiya Sakshya Adhiniyam).

41. Corroboration of Prosecutrix / Victim’s Evidence Is Not Generally Insisted In Rape Cases

In Rafiq v State of U.P AIR 1981 SC 559: 1980 CriLJ 1344, the Supreme Court speaking through Justice Krishna Iyer laid down as under:

Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law. But a guidance of prudence under given circumstances. Indeed, from place to place, from age to age from varying life – styles and behavioural complexes, inferences from given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.

….When rapists are revelling in their promiscuous pursuits and half of humankind – womankind- is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil fromula and insist on corroborative testimony. even it, taken as a whole, the case, spoken to probable…… When a woman is ravished what is inflicted is not merely physical injury but “the deep sense of some deathless shame”.

Hardly a sensitized judge who sees the concepts of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against its veracity.

Again in Krishnalal v State of Hariyana AIR 1980 SC 1252 : 1980 CriLJ 926 the Supreme Court speaking through Justice Krishna Iyer observed as under:

 we must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim’s version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivet and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilities the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called ‘Judicial’ probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world.

In State of U.P. v. Pappu @Yunus and Another, AIR 2005 SC 1248, the Supreme Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: –

“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.”

(See also State of Punjab v. Gurmit Singh and Others, AIR 1996 SC 1393, State of Orissa v. Thakara Besra and Another, AIR 2002 SC 1963 State of Himachal Pradesh v. Raghubir Singh, 1993 (2) SCC 622, Vijay @ Chinee v State of Madya Pradesh 2010 (8) SCC 191, Rameshwar v. State of Rajasthan, AIR 1952 SC 54, Wahid Khan v. State of Madhya Pradesh, 2010 (2) SCC 9)

42. Presumption Under Section 120 of the Bharatiya Sakshya Adhiniyam (S.114A Evidence Act) is Not Available For Offence Under S 64(1) of the Bharatiya Nyaya Sanhita, 2023 (376(1) IPC) and Available Only In Offence under S. 64(2) (376(2) IPC)

In Ramcharan v State, 1993 CriLJ 1825 Madhya Pradesh High Court,

clarified the distinction of offences of rape under S. 376 (1) (section 64(1)) of the Bharatiya Nyaya Sanhita, 2023) and various sub clauses in S. 376 (2) of the penal code (section (64(2) of the Bharatiya Nyaya Sanhita, 2023) after the amendment of 1983.  It was also rightly pointed out that presumption under S114 A (Section 120 of the Bharatiya Sakshya Adhiniyam) is available only in the case of offence of rape under various sub clauses of 376 (2) (section 64(2) of the Bharatiya Nyaya Sanhita, 2023) and not in offence of rape under S.376(1) (section 64(1) of the Bharatiya Nyaya Sanhita, 2023). The Court observed:

“…..after 1983, when S. 376, I.P.C. was substituted by a new Section by Criminal Law (Amendment) Act No. 43 of 1983, there is now no offence punishable under S. 376, I.P.C. as such. The offence of rape is now punishable either under Sub-Sec. (1) or Sub-Sec. (2) of S. 376, I.P.C (section 64(1) and 64(2) of the Bharatiya Nyaya Sanhita, 2023). The two offences differ not only in the gravity of the punishment, with which they may be visited, but also because special rule of evidence, namely, presumption, is attracted to one kind of offences but not to the other. It will thus be seen that while the offence under S. 376(1), I.P.C (section 64(1) of the Bharatiya Nyaya Sanhita, 2023). is punishable with minimum sentence of 7 years, unless special and adequate reasons are given in the judgment for imposing a lesser sentence, the offence under S. 376(2) (section 64(2) of the Bharatiya Nyaya Sanhita, 2023) is punishable with minimum sentence of 10 years, unless in cases of the said offence also, special and adequate reasons are given in the judgment for imposing a lesser sentence. Thus, the offence under S. 376(2) (section 64(2) of the Bharatiya Nyaya Sanhita, 2023) may be said to be an aggravated offence, for which a distinct charge would be necessary. What is more important is the fact that presumption under S. 114 – A of the Evidence Act(Section 120 of the Bharatiya Sakshya Adhiniyam), to the effect that if a woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent, is attracted to cases of rape falling under Sub-Sec. (2), except when the case is under Cl. (f) thereof. No such presumption is attracted to cases of rape falling under Sub-Sec. (1) of S. 376, I.P.C )section 64(1) of the Bharatiya Nyaya Sanhita, 2023). It will be seen that cases of custodial rapes of women by certain public servants, rape on a woman known to be pregnant, or on a woman under 12 years of age or gang rape fall under Sub-Sec. (2) of S. 376 (section 64(2) of the Bharatiya Nyaya Sanhita, 2023), while residuary cases of rape are covered under Sub-Sec. (1) of S. 376, I.P.C (section 64(1) and 64(2) of the Bharatiya Nyaya Sanhita, 2023). Framing of charge under S. 376, I.P.C. (section 64 of the Bharatiya Nyaya Sanhita, 2023 is such, apart from the fact that it is incorrect, may be made a ground by an accused to make a grouse that he had no proper notice of the prosecution case he had to meet. A charge should therefore always be framed in cases of rape either under Sub-Sec. (1) or Sub-Sec. (2) of S. 376, I.P.C. (section 64(1) and 64(2) of the Bharatiya Nyaya Sanhita, 2023) and conviction should also be so distinctly recorded, instead of under S. 376, I.P.C. (section 64 of the Bharatiya Nyaya Sanhita, 2023) as such.

43. 114A (Section 120 of the Bharatiya Sakshya Adhiniyam) Adds Weight and Credence to the Statement of the Victim Woman

In Puran Chand v State of H P, 2014 (5) SCC 689: 2014 CriLJ 2577 (T. S.Thakur; Gyan Sudha Misra), the Supreme Court upheld the conviction of the accused in a case of rape of a 17 year old girl who attempted to commit suicide after the incident and there was a delay of 22 days in lodging FIR. The Court pointed out that the introduction of S.114A was to add more weight and credence to the statement of the victim.  The Court Observed:

In fact, at this stage, the amendment introduced in the Indian Evidence Act, 1872 in S.114 – A (Section 120 of the Bharatiya Sakshya Adhiniyam) laying down as follows is worthwhile to be referred to: – 

“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 S.376 of the Indian Penal Code( Section 64 of the Bharatiya Nyaya Sanhita) ccused 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.” S.114 – A (Section 120 of the Bharatiya Sakshya Adhiniyam) no doubt addresses on the consent part of the woman only when the offence of rape is proved but it also impliedly would be applicable in a matter of this nature where the victim girl had gone to the extent of committing suicide due to the trauma of rape and yet is sought to be disbelieved at the instance of the defence that she weaved out a concocted story even though she suffered the risk of death after consuming poison. If this were to be accepted, we fail to understand and lament as to what is the need of incorporating an amendment into the Indian Evidence Act by incorporating S.114A (Section 120 of the Bharatiya Sakshya Adhiniyam) which clearly has been added to add weight and credence to the statement of the victim woman who suffers the offence of rape and a claustrophobic interpretation of this amended provision cannot be made to infer that the version of the victim should be believed relating merely to consent in a case where the offence of rape is proved by other evidence on record. If this view of the matter is taken into account relying upon the amended S.114A of the Indian Evidence Act which we clearly do, then even if there had been a doubt about the medical evidence regarding non rupture of hymen the same would be of no consequence as it is well settled by now that the offence of rape would be held to have been proved even if there is an attempt of rape on the woman and not the actual commission of rape. Thus, if the version of the victim girl is fit to be believed due to the attending circumstances that she was subjected to sexual assault of rape and the trauma of this offence on her mind was so acute which led her to the extent of committing suicide which she miraculously escaped, it would be a travesty of justice if we were to disbelieve her version which would render the amendment and incorporation of S.114A into the Indian Evidence Act (Section 120 of the Bharatiya Sakshya Adhiniyam) as a futile exercise on the part of the Legislature which in its wisdom has incorporated the amendment in the Indian Evidence Act clearly implying and expecting the Court to give utmost weightage to the version of the victim of the offence of rape which definition includes also the attempt to rape.

44. There Should Be Proof Of Sexual Intercourse For Drawing Presumption under S 114A (Section 120 of the Bharatiya Sakshya Adhiniyam)

In Shatrughan v State of M.P, two accused alleged to have gang raped a girl were acquitted. The girl and the 1st accused were lovers, their marriage didn’t materialise due to the intervention of the grandmother of the 1st accused. The Court observed:

The girl (PW 1) went on to admit that she was eager to be married to appellant No. 1 Shatrughan and hence was not willing to make any report. She admitted that because she was taken by her parents to the police, she had to report. This would indicate that she unwillingly made a report on pressure of her parents.

The report of the Chemical Examiner, already indicated, contra – indicates the story of any sexual intercourse having taken place with the prosecutrix. The law with respect to unproved prosecution documents appears to be that although the prosecution cannot be allowed to use them, the defence cannot be denied their use if those documents support the defence in any manner.

The learned trial Judge also pressed into service the presumption contained in S. 114 – A of the Evidence Act (Section 120 of the Bharatiya Sakshya Adhiniyam) to enable him to hold that the prosecution story was established. That presumption says that in a prosecution for rape confined to certain clauses of Sub-Sec. (2) of S. 376, IPC. (Section 64 of the Bharatiya Nyaya Sanhita) including clause (g) relating to gang – rape, with which we are presently concerned, if 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 gives evidence in Court that she did not consent then the Court shall presume that she did not consent. It is not discretionary with the Court whether to draw that presumption or not. If the conditions given in the provision are satisfied, the Court shall presume about the absence of consent on the part of the prosecutrix. That presumption is rebuttable by contrary evidence. It is however clear that before that presumption can be drawn, there should be reliable evidence amounting to proof to hold that sexual intercourse took place between the accused and the woman concerned. If there is no satisfactory evidence on that question, it would be clearly wrong to resort to the presumption and to hold that the woman did not consent, since that would be begging the question if sexual intercourse at all took place. In the facts and circumstances of the present case, it is doubtful if any sexual intercourse took place with the prosecutrix at the time of the alleged incident. The presumption was therefore not attracted.

45. Instance of Rebuttal of Presumption under S 114 A of the Evidence Act – (Section 120 of the Bharatiya Sakshya Adhiniyam) – Case Law

In Jogi Dan and Others v State of Rajastan, 2004 CriLJ 1726 Rajasthan High Court speaking through Sunil Kumar Garg, in a case of alleged gang rape, disbelieved the version of the prosecutrix and acquitted the accused assigning the following reason:

In my considered opinion, from perusing the statement of the prosecutrix PW 3 and other evidence on record, it cannot be accepted that the accused appellants had sex with the prosecutrix PW 3 against her will and on the contrary it clearly appears that it was a case of consent because of the following reasons: –

(i) That the medical evidence in the present case is Nil and thus, from medical point of view, there is no corroboration to the statement of the prosecutrix PW 3.

(ii) That the prosecutrix PW 3  did not receive any injury on any part of her body including private part and this Court is aware that absence of injury on the person of prosecutrix is not by itself sufficient to hold that the prosecutrix was a consent party, but in the present case, when it is alleged that four accused appellants committed rape with her forcibly against her will, in such a situation, some sort of injuries must have been found on her person and thus, absence of injury on any part of her body negatives the allegations of rape and to show that either the accused appellants did not have any sexual intercourse with her or if the accused appellants had sexual intercourse with her, it was with her tacit consent.

Furthermore, ordinarily, where forcibly sexual intercourse is committed there would be injury on the person of the victim. Absence of any injury on the person of a woman alleged to have been raped may go long way to indicate that the alleged intercourse was a peaceful affair and the story of a stiff resistance put up by the prosecutrix is false or an afterthought.

(iii) That the statement of the prosecutrix PW 3 gets contradicted from the medical evidence as in the medical evidence, no injury was found on any part of her body including private part, while she admits that she received injuries on back, elbow joint and blood also came out.

(iv) That other corroborative factor that could be was her torn blouse and stained gagra, but the same were not seized and produced and in absence of that, it appears that either the alleged incident did not take place or if took place, that took place with her tacit consent.

(v) That at the time of alleged incident, when the prosecutrix PW 3 cried, 5-7 labourers came there, but none of them has been produced and this fact goes to show that the incident as alleged and put forward by the prosecutrix did not happen.

(iv) That on presumption under S.114A (Section 120 of the Bharatiya Sakshya Adhiniyam), it may be stated there that no doubt presumption under S.114 – A (Section 120 of the Bharatiya Sakshya Adhiniyam) is available to cases that fall under S.376(2), IPC and not to cases that fall under S.376(1), IPC, in other words, in cases of gang rape, presumption under S.114 – A (Section 120 of the Bharatiya Sakshya Adhiniyam) is available. It may further be stated here that the presumption about want of consent under S.114A (Section 120 of the Bharatiya Sakshya Adhiniyam) is not conclusive. Evidence may still be given to disprove it. But in the absence of any evidence of disproof, there is no option with the Court but to raise a presumption about non consent if circumstances for raising the presumption under S.114A (Section 120 of the Bharatiya Sakshya Adhiniyam) exist. It must, however, be conceded that immoral character would still not be an absolutely irrelevant circumstance. It may render the story itself as incredible. It may take away probative force of the story, told as it is by a woman with no scruples or morals. It may be difficult to believe a woman of immoral character if she says that some persons had sexual intercourse with her unless there existed satisfactory proof in support of the story of sexual intercourse.

In the present case, since the prosecutrix PW 3 has alleged that four accused appellants committed rape with her forcibly against her will and since the concerned doctor did not find any injury on any part of her body including private part and no complaint of that incident was lodged immediately and the same was lodged with delay of five days and furthermore, PW 1 Kamla, who is star witness, has been declared hostile and though labourers were there, but none has come forward to support the statement of the prosecutrix PW 3, in such a situation, no presumption under S.114A of the Evidence Act (Section 120 of the Bharatiya Sakshya Adhiniyam) could be raised and therefore, the findings of the learned trial Judge drawing prosecution under S.114A of the Evidence Act (Section 120 of the Bharatiya Sakshya Adhiniyam) are wholly erroneous one and cannot be sustained.

(vii) That the prosecutrix PW 3 has clearly stated that she made struggle, but this aspect of her statement cannot be accepted because there should be evidence of struggle to avoid sexual contact of penetration and the same is missing in this case.

In this respect, it may be stated here that there can be exceptional circumstances such as death, hurt or any other threat which may force her to submit and so consent in case of grown up lady should be inferred the circumstances and the prosecution may prove negative consent by producing position evidence of threat or fear of death or hurt.

In the present case, the prosecution has miserably failed to give satisfactory evidence on that point as none has come forward to support the case of the prosecutrix as this Court is very much aware of the fact that if sexual intercourse is committed forcibly with a grown up lady against her will by four persons, she would certainly receive injuries and absence of injuries leads to the conclusion that either no offence was committed or if committed, it was committed with her tacit consent.

(viii) That there is no dispute on the point that the incident as alleged and put forward by the prosecutrix took place on 28-9-1986 and the report Ext. P / 8 was lodged on 2-10-1986 and thus, there was delay of about 5 days in lodging the report.

This Court is aware that mere delay in filing FIR is no ground to doubt that case of the prosecution, but in the present case, the delay appears to be fatal one as the incident took place on 28-9-1986 and the report Ext. P / 8 was lodged on 2-10-1986 after about 5 days and as per the report Ext. P / 8, PW 4, Moolchand, husband of the prosecutrix , refuse to lodged any report and therefore, in such circumstances, if report Ext. P / 8 was lodged after so many days of alleged incident especially when on the date of occurrence, the husband of the prosecutrix was in the house, it creates doubt on the prosecution story. Had her husband would have been out side, the position would have been different one.

 For the reasons stated above, it is held that the statement of the prosecutrix PW 3 does not appear to be straight forward, reliable and trustworthy and does not inspire confidence. Her statement is not corroborated by any other evidence and rather her statement is contradicted with medical evidence. Therefore, no reliance can be placed on her statement on the point that forcible rape was committed with her by the accused appellants against her will, as it is not corroborated by medical as well as other evidence on record.

Furthermore, the facts that the report Ext. P / 8 was lodged with delay of about 5 days, medical evidence is nil and non examination of material witnesses go against the prosecution and they create doubt on the prosecution story.

46. Presumptions of Law Under Negotiable Instruments Act

Sections 118 and 139 of the Negotiable Instruments Act inter alia provide for the following presumptions:

Section 118 reads as:

Until the contrary is proved, the following presumptions shall be made: –

(a)     of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b)     as to date- that every negotiable instrument bearing a date was made or drawn on such date;

(c)      as to time of acceptance- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;

(d)     as to time of transfer- that every transfer of a negotiable instrument was made before its maturity;

(e)     as to order of indorsements- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;

(f)      as to stamps– that a lost promissory note, bill of exchange or cheque was duly stamped;

(g)     that holder is a holder in due course– that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.

Section 139 reads as:

Presumption in favour of holder. —

It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.

47. Rebuttal of Presumption of Law under S.118 (a) of N I Act

In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (1999 (3) SCC 35) laid down the law with respect to rebuttal of presumption in the following terms:

“Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under S.118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under S.118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.”

Full Bench of the Andhra Pradesh High Court in G. Vasu v. Syed Yaseen Sifuddin Quadri (AIR 1987 AP 139). In an instructive judgment, Rao, J. (as His Lordship then was) speaking for the Full Bench noticed various provisions of the Evidence Act as also a large number of case laws and authorities in opining as under:

“From the aforesaid authorities, we hold that once the defendant adduces evidence to the satisfaction of the court that on a preponderance of probabilities there is no consideration in the manner pleaded in the plaint or suit notice or the plaintiff’s evidence, the burden shifts to the plaintiff and the presumption ‘disappears’ and does not haunt the defendant any longer.”

It was further held:

” For the aforesaid reasons, we are of the view that where, in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S.118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words ‘until the contrary is proved’ in S.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the court to consider the nonexistence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S.118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pronote, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption ‘disappears’. For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S.118 does not again come to the plaintiff’s rescue. Once both parties have adduced evidence, the court has to consider the same and the burden of proof loses all its importance.”

The above proposition laid down by the full bench of the Andhra Pradesh High Court was quoted with approval by the Supreme Court in M S Narayana Menon Alias Mani v State of Kerala and Another, AIR 2006 SC 3366

48. Rebuttal of Presumption under Section 139

Once execution of the cheque by the accused is proved, the presumption under S.139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the Court to raise the presumption under S.139 of the Act in every case where the factual basis for raising the presumption is established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the case of a mandatory presumption, the burden which rests on the accused person would not be as light as it is where a presumption is raised under S.114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable (See Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3897: 2001 (6) SCC 16).

Module 22 – Part 3

1. Irrebuttable Presumptions of Law/‘Conclusive Proof’ Proposition

Now we will go through Irrebuttable Presumptions of Law/ ‘Conclusive Proof’ Proposition

As we have seen, Irrebuttable Presumptions of Law are indicated in the Evidence Act by the phrase ‘Conclusive Proof’. Here the Court is not only bound to draw presumption but is also debarred from admitting contra evidence to dislodge/rebut such conclusive presumption. Sections 35 and of the Bharatiya Sakshya Adhiniyam (Sections 41 of the Evidence Act) refer to totally irrebuttable presumptions while Section 116 of the Bharatiya Sakshya Adhiniyam (Section 112 of the Evidence Act) refers to a presumption which is irrebuttable except to the extent and in the manner provided therein.

Sections 35 and of the Bharatiya Sakshya Adhiniyam (Section 41 of the Evidence Act) reads as –

(1) A final judgment, order or decree of a competent Court or Tribunal, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

(2) Such judgment, order or decree is conclusive proof that—

  • any legal character, which it confers accrued at the time when such judgment, order or decree came into operation;
  • any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;
  • any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and
  • anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

Section 116 of the Bharatiya Sakshya Adhiniyam (Section 112 of the Evidence Act) reads as –

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Section 113 of the Evidence Act which reads as follows is omitted in the Bharatiya Sakshya Adhiniyam

A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, e. 2) been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.

  1. Presumption of paternity

Now we shall discuss in some detail the law relating to presumption as to paternity under Section 116 of the Bharatiya Sakshya Adhiniyam (section 112 of the Evidence Act).

The meaning of the maxim “Pater est Que mnuptiaedemonstrant”
is that the father is he who is married to the mother. It is based on the sublime public policy that children should not suffer social disability on account of the laches or lapses of parents. The law leans in favour of legitimacy and not in favour of basterdising the children. The said principle is embodied in section 116 of the Bharatiya Sakshya Adhiniyam (Section 112 of the Indian Evidence Act).

The section as we have seen reads as follows: “Birth during marriage, conclusive proof of legitimacy.-The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Section 2 (b) of the Bharatiya Sakshya Adhiniyam (Section 2 of the Evidence Act) defines ‘Conclusive proof’ as under: –

When one fact is declared by the 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.”

Obviously, S.116 read with the definition of ‘Conclusive Proof’ in S.2(b) debars contra evidence as to the legitimacy of the child when conditions provided in the section are satisfied. The only exception provided in the instant section 116 of the Bharatiya Sakshya Adhiniyam (Section 112 of the Evidence Act) is when it could be proved that the parties to marriage had no access to each other at any time when the child could have been begotten.

In ShyamLal @ KuldeepVs. Sanjeev Kumar and Ors. (reported in AIR 2009 SC 3115), the Supreme Court, reiterated that: “Section 112 (section 116 of the Bharatiya Sakshya Adhiniyam) reproduces rule of English law that it is undesirable to inquire into paternity of child when mother is married woman and husband had access to her. Adultery on her part will not justify finding of illegitimacy if husband has had access.”

In this regard a two Judges bench of the Supreme Court in Kamti Devi v. Poshi Ram AIR 2001 SC 2226, speaking through Justice K.T Thomas observed with respect to the conclusiveness of the presumption and as to the standard of proof required to establish non access as under:

‘We may remember that S.112 of the Evidence Act (section 116 of the Bharatiya Sakshya Adhiniyam) was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of S.112 of the Act (section 116 of the Bharatiya Sakshya Adhiniyam) e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non – access for rebutting the conclusiveness must be answered in the light of what is meant by access or non – access as delineated above.’

‘If a court declares that the husband is not the father of his wife’s child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life. Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling on innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband.’

3. Acceptability of DNA Test to Disprove Paternity; Recent Trend

Another two judges bench of the Supreme Court in Nandlal Wasudeo Badwaik V. Lata Nandlal Badwaik and Another AIR 2014 SC 932, allowed the conduct of DNA Test of the parties concerned to disprove the paternity of the child and have given an altogether different dimension to the law on the point. The Court declared that: “In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.” The Court also said that:

“The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”

“S.112 of the Evidence Act (section 116 of the Bharatiya Sakshya Adhiniyam) does not create a legal fiction but provides for presumption. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary.”

In Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik the Court distinguished the coequal bench’s observation in Kamti Devi v. Poshi Ram and observed:

“As regards the authority of this Court in the case of Kamti Devi (Supra), this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non – access of the husband with the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of S.112 of the Act (section 116 of the Bharatiya Sakshya Adhiniyam)”. The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored.”

4. When DNA Test can be allowed

Now let us see when the Court can allow DNA test to confirm paternity. The Supreme Court has repeatedly held that the court cannot allow DNA test as a matter of routine and on mere asking. In Bhabani Prasad Jena v. Orissa State Commission for Women, reported in AIR 2010 SC p. 2851, the Supreme Court considered the issue as to when DNA test can be ordered. The Court held that:

“…when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the Court to reach the truth, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the Court as a matter of course or in a routine manner, whenever such a request is made. The Court has to consider diverse aspects including presumption under S.112 of the Evidence Act (section 116 of the Bharatiya Sakshya Adhiniyam); pros and cons of such order and the test of “eminent need” whether it is not possible for the Court to reach the truth without use of such test.”

The above decision in ‘Bhabani Prasad Jena’ was considered and approved in Dipanwita Roy vs. Ronobroto Roy, 2015 (1) SCC 365, where the Court noticed from the facts that the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court. Even then, Justice J. S. Khehar, writing for the Division Bench, considered it appropriate to record a caveat to the effect that the wife may refuse to comply with the High Court direction for the DNA test but in that case, presumption may be drawn against the party.

Ashok Kumar v. Raj Gupta and Others 2022 (1) SCC 20), the Supreme Court referred Bhabani Prasad Jena, and observed:

DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. Whether a person can be compelled to provide a sample for DNA in such matters can also be answered considering the test of proportionality laid down in the unanimous decision of this Court in K. S. Puttaswamy v. Union of India, 2019 (1) SCC 1, wherein the right to privacy has been declared a constitutionally protected right in India. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test. It cannot be overlooked that in the present case, the application to subject the Plaintiff to a DNA Test is in a declaratory suit and the plaintiff has already adduced evidence and is not interested to produce additional evidence (DNA), to prove his case. It is now the turn of the defendants to adduce their evidence. At this stage, they are asking for subjecting the plaintiff to a DNA test. Questioning the timing of the application the trial Court dismissed the defendants application and we feel that it was the correct order.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. What are presumptions? Explain the terms ‘May presume’ ‘Shall presume’ and ‘Conclusive proof’ as contemplated in the Bharatiya Sakshya Adhiniyam /the Evidence Act?
  2. State what facts can be presumed by a court as per section 119 of the Bharatiya Sakshya Adhiniyam (S.114 of the Evidence Act)?
  3. Discuss the law relating to presumption as to paternity section 116 of the Bharatiya Sakshya Adhiniyam (U/s 112 of the Evidence Act)?
  4. What is meant by conclusive proof? A child is born during the married life of a couple and the husband disowns paternity of the child. Discuss the legal position. Is paternity presumed? Can the court permit DNA test to determine paternity?
  5. What are presumptions that could be drawn by court as to document produced in judicial proceeding?
  6. Whether the following could be received in evidence without examining the Maker. Substantiate and explain with reasons

(a)Confession duly Recorded by a magistrate under the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164 CrPC)

(b) Statement recorded under 183 of the the Bharatiya Nagarik Suraksha Sanhita, 2023 (S.164(5) CrPC)

(c)Memorandum of test identification conducted by a Magistrate

(d) Dying declaration recorded by a Magistrate

  1. What are the presumptions that you will draw when any document purporting or proved to be thirty years old is produced from proper custody? What is proper custody?
  2. Explain the presumption with respect to Notarised Power of Attorney. Whether the presumption is applicable to a Power of Attorney authenticated by a Notary Public of a foreign state?
  3. What is the nature of the presumption when the question is whether suicide committed by a woman was abetted by her husband or his relatives? To what extent this presumption is different when the question is whether a person is guilty of the offence of dowry death?
  4. A young woman married for two years commits suicide. Her husband and mother-in -law are tried for the offence of causing dowry death punishable under Section 80 of the Bharatiya Nyaya Sanhita (Section 304 B (2) of the IPC) read with section 118 of the Bharatiya Sakshya Adhiniyam (Section 113B of the Indian Evidence Act) and, in the alternative, for offence punishable under Section 306 IPC (Section 108 of the Bharatiya Nyaya Sanhita) read with section 117 of the Bharatiya Sakshya Adhiniyam (Section 113A of the Indian Evidence Act). Prosecution seeks to prove several letters written by the young women to her parents complaining about incessant dowry demands and repeated acts of cruelty on the part of her husband and mother-in-law and stating that she would not be in a position to tolerate such physical and mental abuse for long, Relevancy of these letters is contested by the defence.

  (a) In law, is the Court required to threat the letters and contents as relevant and to allow the prosecutor to prove the same? Give reasons, referring to the relevant statutory provisions.

  (b) Can Court use the content of the letters as substantive evidence against the accused?