Section 108 of Indian Evidence Act

Burden of proving that person is alive who has not been heard of for seven years.—1[Provided
that when] the question is whether a man is alive or dead, and it is proved that he has not been
heard of for seven years by those who would naturally have heard of him if he had been alive,
the burden of proving that he is alive is 2[shifted to] the person who affirms it.—1[Provided
that when] the question is whether a man is alive or dead, and it is proved that he has not been
heard of for seven years by those who would naturally have heard of him if he had been alive,
the burden of proving that he is alive is 2[shifted to] the person who affirms it."

Union of India v. Polimetla Mary Sarojini—AP High Court -2017

In this case, Respondent husband taken 3 days earned leave and which started from 07-10-
1992. But, he never report for duty on 10-10-1992. In the 1994, respondent lodged a police
complaint. After nearly 3 years, SI filed a report and declaring that respondent husband is not
traceable.

When respondent filed for pension, dept. told her that her husband was removed from the
service for unauthorised absence. Here, tribunal allowed the application on ground that under
section 108 of Evidence Act, respondents husband should be presumed to be dead from the
date he went missing and that therefore the order of dismissal passed against a dead person is
a nullity.

High Court of AP followed the view of Bombay High Court in Subhash Ramchandra
Wadekar Vs. Union of India, AIR 1993 Bombay 64, in which a Single Judge of the Bombay
High Court held that if section 108 of Indian Evidence Act is to be interpreted literally, it would
have to be held that law presumes the death of a person unheard of for seven years but is silent
in respect of the date of presumed death. It was further held that the date of presumed death
must be proved by the party concerned as a fact by leading reliable evidence. The Court
formulated two propositions viz. (1) Ordinarily a person unheard of for the statutory period
shall be presumed to be dead on expiry of seven years and not earlier. (2) Section 108 of Indian
Evidence Act, 1872 is not exhaustive.

High court upheld the decision of the tribunal

In Zishan Khan vs- District Inspector of Schools, Varanasi & Ors., 2012 (92) ALR 154, a
Single judge of the Allahabad High Court held as follows:

(1) Ordinarily, a person not heard of for the statutory period shall be presumed to be dead on
expiry of seven years and not earlier; (ii) Section 108 of the Indian Evidence Act, 1872 is not
exhaustive.

In LIC of India v. Anuradha, MANU/SC/0285/2004: AIR 2004 SC 2070, the Supreme

Court held that the presumption as to death by reference to Section 108 would arise only on
the expiry of seven years and would not by applying any logic or reasoning be permitted to be
raised on the expiry of 6 years and 364 days or at any time short of it.

it is provided that a petitioner can present a petition to have a marriage dissolved after seven
years’ absence where the petitioner has no reason to believe that other party has been living
within that time. (Thompson vs. Thompson: 1956 (1) All ER 603)

Praveen Kumar Singh v. State of Jharkhand,2018 SCC OnLine Jhar 753, Order dated 25-
07-2018

In this case, the petitioner and her mother successfully proved that they have not heard of the
petitioner’s father for more than last 7 years and the respondents have themselves admitted that
petitioner’s father has met with civil death. On these grounds the Court allowed the petition
and quashed the order of respondent authorities, directing them to consider petitioner for
compassionate appointment.

A. The law only presume someone to be dead if person is not heard for 7 years. If Mr. A
live in abeyance till January 2019, then it automatically declared dead by the court. his
case also closed.
B. Police Officer can file a closure report by stating that Mr. A is not traceable but that
doesn’t means that he is declared death, he only declared dead after completion of 7
years of his abeyance.
C. Above case refer
D. If any one proved that accused is not death or anyone of his family was in touch with
accused, then that case automatically reopen.
E. Family member cannot be held liable for the action of the someone. if accused was not
found for 7 years continuously, then he declared dead, case is automatically closed.
When the presumption of civil death operates, there is no question of artificial death of
a person. The presumption is that the person has died naturally, and, the death
contemplated is alos a natural death. Under section 108 of Evidence Act, there is a
presumption of the fact of death after the expiry of seven years, but there is no
presumption as to the exact time of death. Benefit of Section 108 is given to accused
family.