Section 114 of the Indian Evidence Act, 1872

Illustrations:

The Court may presume,—

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(à) 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;

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

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

(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 state of things usually cease to exist, is still in existence;

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

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

(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;

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

But 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 till 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, Â 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 (ñ): A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was 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 (t): A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

Comments:

Principle and scope:

Under section 114 the court may presume the existence of certain facts. According to this section if a fact is likely to have happened:

(i) In common course of natural events;

(ii) According to general human conduct;

(iii) According to public and private business;

(iv) Due to the relation to the facts of the particular case,— the court may presume the existence of such fact. “Section 114 of the Evidence Act shows the way to the court in its endeavour to discern the truth and to arrive a finding with reasonable certainty.”

Presumption as to existence of certain facts:

This section has given enough discretionary power to the court to draw certain inference from the facts. The presumption under the section is discretionary and not mandatory. Presumption can be drawn only from certain set of facts and not from other presumptions. A presumption can be drawn only from facts, and not from after presumption by a process of probable and logical reasoning. The presumptions are ‘may presume’ in nature and “rebuttable.” This is the final conclusion to be drawn from the facts.

The court, taking into consideration of the circumstances of a case may or may not presume the existence of certain fact. Where permission to intercept phone of the accused was obtained by the investigating officer, but no evidence was led regarding details of the investigation of calls made or received from that number, no adverse inference can be drawn from the fact that details of afore mentioned number was not given.

A presumption is not evidence or proof:

As to valid marriage it gives rise presumption of marriage between father and mother and the said presumption is rebuttable. If live-in-relationship between the parties continued for a long time. It cannot be termed in a “walk in and walk out” relationship. There is a presumption of marriage between them. From certain fact or facts the court can draw an inference and what would remain until such inference is either disproved or dispelled. It shows on whom burden of proof lies.

“The effect of this presumption is to make it perfectly clear that Courts of Justice are to use their own common sense and experience in judging the effect of particular facts, and that they are to be subject to particular rules whatever on the subject.” Presumption can only be raised where they are permitted under the law and such a presumption is not permitted by any of the provisions of the Evidence Act or any other law. Right to be searched has to be made in presence of Gazetted Officer under section 50 of the Narcotic Drugs and Psychotropic Substance Act. The Search was to be conducted in presence of Superintendent of Police. But the accused opted to be searched in presence of the Dy. Superintendent of Police, being a Gazetted Officer. There is no presumption that there may be bias on part of the Dy. Superintendent of Police.

A court may legitimately draw a presumption not only from the fact that the person in whose possession the stolen articles were found committed robbery but also he committed murder. The presumption under this section operates only in absence of evidence. It will disappear when facts are ascertained.

According to Section 114 it is duty of the court to discern the truth and to arrive at finding with reasonable certainty. “It is not correct to say that the evidence of the accomplice can never be relied upon, since such evidence is admissible under section 133. However, Section 133 has to be read with Section 114(b) and reading them together the law is well settled that the rule of prudence requires that the evidence of an accused-accomplice should ordinarily be corroborated by some other evidence.” False explanation as to forged signature on a cheques does not create any presumption against him (accud.) that he is a forger. The prosecution must prove him to be guilty.

In some circumstances the court may draw adverse inference. The adverse inference can be drawn against the party who had knowledge of material factor of the case and has not entered in witness box without sufficient reasons.

Therefore, Section 114 deals with such presumptions and the illustrations given in this section are few instances only.

Common course of natural events:

This expression signifies that an event can take place only when certain circumstances become favourable or unfavourable. What is most common depends upon the facts and circumstances. For example, period of gestation, continuance of life etc.

Human conduct:

Human conduct means the conduct found only in human being who can judge what is right and wrong. The expression of such conduct may either be positive or negative and that can be determined by his actions. Example: if a man and woman are living as husband and wife for a longtime, the presumption is they are married.

Public and private business:

It is a common presumption that everything is presumed to be rightly and regularly performed until the contrary is proved. The address of a registered letter bears correct address. Mere denial of receiving it was not enough. The presumption prevailed.

In order to presume certain fact the court under section 114 of the Evidence Act, has to have regard to the common course of natural events, human conduct and public and public business. “It is necessary that the common course of natural events, human conduct and public and private business in so far as it relevant to the facts in issue in particular case must be established.” If the alleged course of conduct unless established cannot be made use of by the court for the purpose of arriving at decision under section 114 of the Evidence Act. Where a witness is not cross-examined over the matter of his testimony, a presumption arises that his version has been accepted.

Necessity of illustrations:

The intention of the makers of the Act can be drawn from various Illustrations appended to these sections. The provisions of these sections are not merely confined to the Illustrations, but are equally applicable to the similar cases. A very wide application of this section has been intended by the makers by giving these Illustrations although these are not exhaustive. These Illustrations enable counts to draw inferences from the facts and circumstances.

1. Presumption of possession of stolen goods [Illustration (a)]:

The Illustration (a) is an exception to the general rule that the burden of proof always lies on the prosecution. According to Illustration when a person was found in possession of stolen goods soon after theft, it gives rise two presumptions viz., (i) either he is thief or (ii) he has received the goods knowing them to be stolen. Merit of the presumptions depends upon various facts and circumstances of a case.

According to the Supreme Court all factors are to be taken into consideration in arriving at a decision. Unexplained possession of stolen goods has been held to be sufficient to create a presumption of guilt. “Where the Supreme Court raised only the presumption from the recovery of stolen property that it was received with knowledge, but not that the person from whose custody they have been recovered should be presumed to be also the murderer of the woman to whom the articles belonged.”

The presumption can be drawn only if fact of recovery is proved beyond reasonable doubt. Where the articles belonging to the victim are found in the possession of the accused, the burden shifts to the accused to explain the same. If he has not explained the possession of stolen articles the presumption is that he is a receiver not stolen property or a thief. Where the accused was found in possession of gold ornaments and other articles, it was held that a presumption arose under Illustration (a) to Section 114 of the Evidence Act.

2. Accomplice [Illustration (b)]:

The word ‘accomplice’ has not been defined in the Evidence Act. An accomplice means a guilty associate in crime. He is one concerned with others in the Commission of a crime. Illustration (a) lays down that an accomplice is unworthy of credit, unless he is corroborated in material particular. It is absolute discretion of the court to raise any presumption. “It is not necessary that there should be independent corroboration of every material circumstances. All that is required is that the story of the accomplice is true and that it is reasonably safe to act upon it.” When the evidence of the approver corroborated by medical evidence the conviction of the accused under section 396, IPC was held proper.

The corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. It is unsafe to act solely upon the evidence of co-accused unless it is corroborated in material aspects.

Illustration (b) to Section 114 incorporates a rule of causation to which the courts should have regard. Section 133 has to be read with Section 114(b) and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence.

3. Presumption as to Bill of Exchange [Illustration (c)]:

All things are presumed to be rightly done. This maxim is also applicable to private business. According to Illustration (c) the court may presume that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration. But this section has authorized also that the court must have regard to other material facts for its consideration. In considering all facts the court may presume a bill of exchange proved until it is disproved.

Section 118 of the Negotiable Instrument Act, on the other hand, extends the presumption to all kinds of instruments, when an instrument is endorsed, negotiated or transferred, the presumption is that it was endorsed, negotiated or transferred for consideration. Section 114 of the Evidence Act is of general in nature, whereas Section 118 of the N.I. Act applies only to parties to the instrument. Under Section 114 and Illustration (c) the court has discretion to draw a presumption, whereas under Section 118 of the N.I. Act the court is bound to start with the presumption. When the two presumptions are made there is no difference between the two where it proved that the cheque was issued by a party and the cheque was presented in the bank and it was dishonoured. Presumption arises that the cheque was issued for consideration, burden to rebut the presumption would be on the party issuing the cheque.

“Under section 118 of the N.I. Act the Court is bound to start with presumption in favour of passing consideration.” Under section 114 of the Evidence Act the court has unfettered discretion to presume a fact, as proved until it is disproved, or ignore such a presumption and call for a proof of it.”

“The presumption under section 118 of the N.I. Act is that the instrument is supported by some consideration. There is no presumption as to the quantum of consideration.” “In a suit on a promote against the undivided sons of a Hindu promissor governed by the Mitakshara, the presumption permissible is under the general law, viz., Section 114 and not Section 118 of N.I. Act.”

4. Presumption of continuity of things [Illustration (d)]:

The presumption is that a thing or state of things existed within a period shorter than that within which such thing or state of things usually ceased to exist, is still in existence. it may be presumed that things remain where they were in original state. When a person is in possession of certain property it may be presumed that his possession continues unless his dispossession is proved. Property which was shown to be ancestral would be presumed to continue in that state unless the contrary is proved.

5. Presumption of performance of judicial and official Acts. [Illustration (e)]:

The presumption under this section, though it is optional is that when a judicial or official Act has been done it may be presumed to be regularly done. The rule is based on the maxim that all acts are presumed to be rightly and regularly done. The statement of facts happened at the hearing and recorded in the judgment of the court is presumed to be correct.

The Illustration (c) means that if an official act is proved to have been done, it would be presumed to have been regularly done. Where official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the courts will upload such state action.

Similarly, same presumption is applicable to the official acts where the procedure adopted by the selection committee was based on merits and marking was given accordingly it was presumed that the official acts were genuine. In a private establishment also where the course of dealing is systematic and regular similar presumption may apply. The presumption as to correctness of entries in revenue records has to be rebutted by leading evidence to the contrary. An entry of such nature does not become rebutted by the mere statement of fact made in the written statement. A marriage between a Catholic Christian wife and a Hindu husband was in question. The wife was converted to Hindu before marriage according to Vedic Rites. The marriage cannot be said to be void. It can be presumed that the priest must not have performed marriage without conversion.

6. Presumption of transaction in usual course of business. [Illustration (f)]:

Illustration (f) has to be read with Section 16 of this Act, which attaches a great evidentiary value to an act done in any general course of business. The presumption is that the course of business is followed by the parties in commercial transaction. If the letter correctly addressed was posted and that it did not come back it may be presumed that in course of business it was received by the addressee. Where postal receipt and acknowledgement due showed the dispatch and receipt of notice, it was held that there was presumption service of notice. Where a notice to quit sent by the landlord by registered post to the tenant, which the latter as verified by the postman, refused to take, was presumed to have been delivered. Notice of an appeal deemed to have been served though A/D was not returned. Merely making a bold statement that he did not receive the notice was not enough. The presumption is stronger when a letter was posted through registered post. When a notice is sent under certificate of posting it is presumed that there has been service of notice.

7. Presumption of withholding evidence [Illustration (g)]:

The Illustration deals with the presumption arising from withholding evidence. It enables the court to presume that where an evidence is withhold by the party, it goes against him. “The presumption under section 114(g) is only permissible inference and not a necessary inference”. Merely because some important material which has not been examined in the case, the court would not draw inference that if the witness had been examined he would have given contrary. Where the anti-adulteration authorities did not produce the sample which was submitted to analysis, it created presumption that there was something in the sample against them.

When a person is very much available and alive, attempt to prove signature or handwriting by examining third person as a witness would have its own drawback. An inference as provided for Cl. (g) of Section 114 would come into play. Where the state did not produce the merit list despite Supreme Court’s directions, a presumption is that no merit list was prepared.’ Where a copy of the statement of an accomplice recorded by the police was not given to the defence an adverse inference was drawn against him testimony. Non-production of witness created an adverse presumption would ipso facto vitiate the whole trial.

The question relates to determination of consent or implied consent for surgical operation. The patient denied to have consented to surgery excision of tumour, whereas the doctor concerned in written submissions appended copy of consent from of the hospital but not the actual consent taken from the patient and no evidence was produced on part of the doctor. It raised presumption against the hospital and the attending doctor as held by the Supreme Court. It was held that in essence of surgery consent given for excision biopsy could not by inference be taken to be consent for surgery.

8. Refusal to answer [Illustration (h)]:

The Illustration says that if a person refuses to answer question which he is not compelled to answer by law, the court may presume the answer if given would be unfavourable to him. But if the accused refuses to disclose his defense at the committal proceeding no adverse inference against him can be drawn.

9. Presumption as to document in hand of obligator. [Illustration (i)]:

According to this Illustration it is a natural presumption that a man will protect his interests by securing his document before or at the time of discharging it. Where an instrument of debt and a security for it are in the hands of the debtor, the presumption would be that the debt must have been discharged and for protecting his interest the debtor obtained the document and security after discharging the debt. Section 114 of the Evidence Act cannot be relied upon to plead due discharge of obligor under document if it is in the hands of obligor.

114A. Presumption as to absence of consent in certain prosecutions for rape:

In a prosecution for rape under clause

(a) or clause (b) or clause (c) or clause id) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

Comments:

Reasons for amendment:

The offence of rape has been defined in Section

375of the Indian Penal Code and punishment for which is prescribed in Section 376 of the same Act. When a case of rape has been committed the court has to decide whether sexual-intercourse was committed with or without consent of the prosecutrix. The consent theory that was in force for more than hundred years has been reoriented due to public resentment, because culprits usually escaped punishment. It has been very difficult on part of the court to draw correct inference from surrounding circumstances whether it was a case of rape with consent or without consent.

The accused usually used to take defense that it was consented rape and now the prosecutrix was shielding herself from public. Without any corroboration of the statement of the rape victim the accused would not have been punished. To annihilate the defense consent as well to dispense gender justice the amendment has been made whereby the court can presume that there was no consent given by the prosecutrix.

Principle:

Under section 114A of the Evidence Act where the prosecutrix alleges that the accused had sexual intercourse with her and she did not consent the court shall regard that there was no consent. The evidence of the victim of rape alone is sufficient to prove absence of consent in a charge of rape. It is the accused to prove that the prosecutrix consented to sexual-intercourse. When a case of rape is committed the following presumptions under this section can be drawn:

(i) There has been sexual-intercourse;

(ii) Sexual intercourse with or without consent;

(iii) The prosecutrix did not consent.

The new section mainly deals with the last point i.e. (iii). As soon as the victim complains that she is raped, the burden of proving of consent would be shifted to the accused.

Most encouraging development has been the observation of the Supreme Court. It said that “‘keeping in view the social victimization and ostracization of the victim of a sexual offence it would be appropriate that in the judgments of courts name of the victim should not be indicated”. Regarding proof of non-consent it was also observed that the question of consent is really a matter of defense by the accused and it is for the accused to place materials to show that there was consent.

Presumption against allegations of consensual sex:

It was held that “whereas Sections 113A and 113B inserted in the Evidence Act by same amendment raise a clear presumption in favour of the prosecution but no similar presumption with respect of rape is visualised as the presumption under section 114A is extremely restricted in its application.”