Most of the criminal law is based on what society perceives as common sense standards of acceptable or non-acceptable behaviour in a given situation, where one’s actions can cause harm to others for no justifiable reason. For example, murder is a crime in all cultures and societies, because no one wants to risk getting deprived of his/her life at little or no notice; and society has agreed that taking away someone’s life has to have very good reasons for doing it. Same reasoning would apply to lesser crimes like theft — that one cannot deprive another person of property or money by theft/cunning/deceit etc. Even a thief after having committed a theft and not being discovered, wants the protection of law so that his/her (see, we are gender neutral ) ‘goods’ cannot be stolen further by another thief! He/She wants to have the safety under law that those ‘goods’ should be treated as his/her personal possession, and should be safe from theft from then on. If theft was not a crime, even thieves won’t feel ‘safe’.
So basically, some people can be termed as thieves only because there is a law against theft, and they were proven to have committed the crime. If there was no law against theft (but maybe only a moral/ethical code), then some people can be called thieves in manner of speaking, but it will be more of a moral/ethical labelling than labelling someone as a criminal.
Now coming back to topic of post: Is it possible to declare someone a thief without no real evidence of him/her having been involved in a theft?
For crime of theft, this is not the case. But there is another class of crimes called crimes against women, or matrimony related situation;, where law allows a presumption (which can be rebutted with contradicting evidence of course) to be made without a prima-facie evidence in favour of that presumption.
Presumption in law
Legal meaning of presumption is given below:
Read my book on how to save on maintenance under CrPC 125 and DV Act. (Kindle eBook version) (Print Paperback version)
Download my free PDF eBook Surviving the Legal Jungle
Don't be a lone ranger... JOIN our Facebook group to connect
Read this FREE eBook written by fathers involved in child custody issues (Read Online)(PDF book)
A legal inference that must be made in light of certain facts. Most presumptions are rebuttable, meaning that they are rejected if proven to be false or at least thrown into sufficient doubt by the evidence. Other presumptions are conclusive, meaning that they must be accepted to be true without any opportunity for rebuttal.
Above is an overall meaning of presumption which can apply to both presumption of law and facts. Specifically, this post is about presumption of law which is more tricky because it allows some presumption to be made by court based on certain facts or evidences of a case. Such a presumption in law may be well within broad applicability of what is considered common sense behaviour in a society, and in that case, the presumption in law has the main role of simplifying procedure and administration of law. Or in other cases, it may not be so clear if the conclusion based on the presumption is applicable in all cases, but nevertheless the lawmakers in their wisdom(hopefully) have added that presumption to the body of law. So ignorance of the presumptions in law can be hurtful to those accused or complained against, and can be used lawfully, by the complainant or petitioner.
Presumption in criminal law for crimes against women
Presumption in crime of Rape (IPC 376)
Section 114A of Indian Evidence Act and the following commentaries are taken from 185th report of Law Commission. The report discusses various proposed amendments, and gives the present text of the section and rationale behind its present form.
Section 114A: This section deals with ‘presumption as to absence of consent in certain prosecutions for rape. It reads as follows:
Note: following is the latest version of section 114A as amended by THE CRIMINAL LAW (AMENDMENT) BILL, 2013, which adds for clauses added to IPC 376 but doesn’t change the core premise of the section about presumption of consent. All other commentary is verbatim as per Law Commission’s report.
‘114A. In a prosecution for rape under clause (a), clause (b), clause (c),
clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k),
clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal
Code, where sexual intercourse by the accused is proved and the question is whether
it was without the consent of the woman alleged to have been raped and such woman
states in her evidence before the court that she did not consent, the court shall presume
that she did not consent.
This section was inserted by the Criminal Law (Amendment) Act 1983 (43
of 1983) w.e.f. 25.12.1983. This section was introduced because of the
increasing number of acquittals of accused in cases of rape. If she had been
raped at a place where none could have witnessed – as it happens in most
cases – the prosecution would find it difficult to prove the offence beyond
reasonable doubt. Sometimes, medical or DNA evidence is available and
more often, it is not available.
The presumption is mandatory but is rebuttable.
There are several judgments of the High Courts which have applied
sec. 114A in cases of rape under sec. 376 of the Indian Penal Code. But we
prefer to refer to the two Supreme Court judgments on the point.
In Gagan Bihari Savant vs. State of Orissa: 1991(3) SCC 562 the
evidence of the prosecutrix showed that she had protested and struggled
while she was subjected to forcible sexual assault by accused persons. It
was held that evidence showed absence of consent on the part of the victim,
even apart from the legal presumption under sec. 114-A. The Supreme
Court confirmed the conviction of all the persons involved in the gang-rape.
But, in a recent case in Dilip vs. State of M.P.: 2001(9) SCC 452, the
presumption was raised but it was held that in view of the infirmities in the
evidence, the place of rape was not proved. It was held that while the sole
testimony of the prosecutrix could be acted upon and made the basis of
conviction without being corroborated in material particulars, in view of the
infirmities in the sole testimony of the prosecutrix which contradicted the
medical evidence as well as the evidence of the aunt of the victim to whom
she had narrated the incident soon after the commission of the rape, it was
difficult to accept that consent was not there. On the question of consent,
though presumption under sec. 114A was raised, no finding, it was held,
need be recorded because of the finding that the prosecutrix was a willing
party. The appeal was allowed and the appellant was acquitted in the
Presumption in abetment of suicide of married woman
Again, taking relevant portions about Section 113A of Indian Evidence Act from Law Commission’s report. Note the difference between this and previous section, in section 113A, court may (and by logical extension depending on a particular case, it may not) presume, whereas in section 114A court has to presume, but it is rebuttable in both cases.
This section deals with ‘Presumption as to abetment of suicide by a
married woman’. It reads as follows:
“113A: When the question is whether the commission of suicide
by a woman had been abetted by her husband or any relative or 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 498-A of the Indian Penal Code
(45 of 1860.”
This section was introduced by the Criminal Law (Second Amendment) Act
46 of 1983. the Indian Penal Code, the Code of Criminal Procedure, 1973
and the Evidence Act were amended keeping in view the dowry death
problems in India.
The section requires proof that (1) that her husband or relatives
subjected her to cruelty and (2) that the married woman committed suicide
within a period of seven years from the date of her marriage.
If these facts are proved, the court ‘may’ presume. The words are not
‘shall’ presume. Such a presumption can be drawn only after the court has
taken into account all the circumstances of the case. The inference would
then be that the ‘husband or relatives’ abetted her suicide.
If there is no evidence of cruelty, the section does not apply. State of
Punjab vs. Iqbal Singh: AIR 1991 SC 1532. In State of Himachal Pradesh
vs. Nikku Ram: AIR 1996 SC 67, it was held that in the absence of any
evidence to show that the diseased was being harassed within the meaning of
Explanation I(b) of section 498A IPC, the presumption under sec. 113A
cannot be raised.
The Supreme Court, in State of West Bengal vs. Orilal Jaiswal AIR 1994 SC
1418 considered the question as to ‘standard of proof’. It observed that in a
criminal trial, the degree of proof is stricter than what is required in a civil
proceeding. In a criminal trial, however intriguing may be the facts and
circumstances of the case, the charges made against may be in the realm of
surmises and conjectures. The requirement of proof beyond reasonable
doubt does not stand altered even after the introduction of sec. 498-A in the
Indian Penal Code and section 113-A in the Evidence Act. Although, the
Court’s conscience must be satisfied that the accused is not held guilty
when there are reasonable doubts about the complicity of the accused in
respect of the offences alleged, it should be borne in mind that there is no
absolute standard for proof in a criminal trial and the question whether the
charges made against the accused have been proved beyond all reasonable
doubt must depend upon the facts and circumstances of the cases and the
quality of evidence adduced in the case and the materials placed on record.
The doubt must be of a reasonable man and the standard adopted must be a
standard adopted of a reasonable and just man for coming to the conclusion
considering the particular subject matter. Reasonableness of the doubt must
be commensurate with the nature of the offences to be investigated.
Exaggerated devotion to the rule of benefit of doubt must not nurture
fanciful doubts or lingering suspicions and thereby destroy social defence.
The court should be extremely careful in assessing evidence under sec. 113A
for finding out if cruelty was meted out. If it transpires that a victim
committing suicide was hyper sensitive 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 would not be satisfied for holding that
the accused charged of abetting the offence of suicide was guilty.
The section has also been interpreted in Lakhjit Singh vs. State of
Punjab: 1994 Suppl (1) SCC 173 and Pawan Kumar vs. State of Haryana:
1998(3) SCC 309 and Shanta vs. State of Haryana 1991(1) SCC 371.
Courts have held that from the mere fact of suicide within seven years
of marriage, one should not jump to the conclusion of abetment unless
cruelty was proved and the court, which has the discretion to raise or not to
raise the presumption, because of the words ‘may presume’, must take into
account all the circumstances of the case, which is an additional safeguard.
See Nilakantha Pati vs. State of Orissa: 1995 Crl LJ 2472 (Vol.3).
The legal presumption provided in sec. 113A clearly includes past
instances of cruelty spread over a period of seven years (Vasanta vs. State of
Maharashtra: 1987 Crl LJ 901 (Bom).
The presumption, even if it is raised in a given case, is rebuttable:
Prem Das vs. State of Himachal Pradesh 1996 Crl LJ 951 (HP).
Having noted the case law and the problems which have come before
the courts in the last 18 years, we do not find anything wrong in the section
which requires amendment. While cases of cruelty and dowry death are
rampant, a new phenomenon is the abuse of these provisions in some cases.
Some of these cases have come up before the High Courts and the
Supreme Court. In some cases complaints are made against husbands in
spite of there being no cruelty. In some other cases, where there is material
against the husband, the husband’s parents or sisters living elsewhere or far
away are all roped in. The result in some cases is that the entire case would
fail due to over zealousness of the complainants or the police. But, in our
view, the words ‘may presume’ and the requirement that ‘all the other
circumstances’ of the case will provide sufficient ground for the court to
deal with such false cases. We do not, therefore, think that any special
amendment is necessary to prevent abuse of sec. 113-A.
In the result, sec. 113-A does not require any amendment.
Presumption in Dowry Death (IPC 304B)
This section deals with ‘Presumption as to dowry death’. It reads as
“113-B. 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 to dowry, the court
shall presume that such person had caused the dowry death.
Explanation: For the purpose of this section, ‘dowry death’ shall have
the same meaning as in sec. 304-B of Indian Penal Code’.
Under the section, it is first necessary to prove that such woman has
been subjected by such person to cruelty or harassment and secondly, such
cruelty should have been or in connection with any demand for dowry and
thirdly that this must have been soon before her death. If these are proved,
the court ‘shall presume’ the person caused the dowry death. Of course, the
words ‘shall presume’ mean that the court is, in such circumstances, bound
to presume that such person had caused the dowry death but still the
presumption is rebuttable.
The need for insertion of section 113-B as also sec. 304B in the Penal
Code has been stated in the 91st Report of the Law Commission (1983) on
‘Dowry Deaths and Law Reform’.
In Shamlal vs. State of Haryana: AIR 1997 SC 1830, the Supreme
Court had occasion to deal with sec. 113-B. It stated that it is imperative,
for invoking the presumption under sec. 113-B, to prove that ‘soon before
her death’ she was subjected to such cruelty or harassment. Where the
prosecution could only prove that there was persisting dispute between the
two sides regarding the dowry paid or to be paid, both in kind and in cash,
and on account of the failure to meet the demand for dowry, the wife was
taken by the parents to their house about one and a half years before her
death and further that an attempt was made to patch up between the two
sides for which a panchayat was held in which it was resolved that she
would go back to the nuptial home pursuant to which she was taken back by
the husband in his house about 10-15 days prior to the occurrence, but there
was nothing on record to show that she was either treated with cruelty or
harassed with the demand for dowry during the period between her having
been taken to the parental home and her death, it is not permissible to take
recourse to the legal presumption under sec. 113B.
Irrespective of the fact whether the accused has any direct connection
with the death or not, he shall be presumed to have committed dowry death
provided the ingredients of the section have been proved. Where the death
of the wife was concurrently found to be unnatural viz. by strangulation, and
there was demand for dowry and also there was cruelty on the part of the
husband, the presumption under sec. 113B must be held to be rightly drawn
(Hemchand vs. State of Haryana AIR 1995 SC 120).
In Gurbachan Singh vs. Satpal Singh: 1990 Crl LJ 562 (SC), the
circumstantial evidence showed that the wife was compelled to take the
extreme step of committing suicide as the accused person had subjected her
to cruelty by constant taunts, maltreatment and also by alleging that she had
been carrying an illegitimate child. The suicide was committed within seven
years after the marriage. The Supreme Court held that presumption under
sec. 113-B could be drawn.
In a case where the parents and the brother of the victim girl were not
informed of the death and the accused hurriedly cremated the dead body, the
presumption was held attracted: (Shanti vs. State of Haryana) (1991 Crl LJ
5 1713 (SC).
In this connection, it may be noted that there are a few differences
between sec. 113-A and sec. 113-B. Whereas in sec. 113-A, the legislature
used the words ‘may presume’ and the words ‘having regard to all the
circumstances of the case’, sec. 113B uses the words ‘shall presume’ and
does not use the words ‘having regard to all the circumstances of the case’.
On the other hand, sec. 113B uses the words ‘soon before the death’ and
these words are absent in sec. 113A. Section 113B deals with dowry death
under sec. 304-B, while sec. 113A deals with ‘abetment of suicide’.
We do not think that sec. 113-B should use the words ‘may presume’
or ‘having regard to all the circumstances of the case’. Having regard to the
fact that in spite of all the new provisions introduced in 1986, dowry deaths
are still a regular feature, the existing provision of ‘shall presume’ must, in
our view, be retained. As stated earlier, even so, the presumption is
We, therefore, do not suggest any amendment to sec. 113-B.
Sec 112 of IEA: Birth during marriage, conclusive proof of legitimacy.
Finally, Section 112 of Indian Evidence Act is similar to the generally held presumption in laws of many countries, which presumes a child born during marriage to be fathered by the husband, and makes it difficult for a man to raise question about paternity of his child. It doesn’t use the word presume or presumption as such, but the words conclusive proof shows that the intention is in nature of shall presume rather than may presume. But of course it can be rebutted if good evidence is provided in support of assertion that the husband had no access to wife.
112. Birth during marriage, conclusive proof of legitimacy.-The
fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.
This section has little amount of text but it’s loaded with possibilities, so one can read more details on various examples and real life cases under Sec 112 of Indian Evidence Act in the article below: