Burden of Proof and Presumptions of Fact/Law

1. M Narasimha Rao v. State of Andhra Pradesh, 2001

 Facts: It was alleged that the accused received a bribe in relation to a
contract for the Dairy Corporation in the state of Andhra Pradesh. The
Anti-Corruption Bureau, in its investigation, treated the currency with
phenolphthalein, that leaves a trail of color to help catch the culprit having
held it.
 Question of Law: Can a legal presumption rest on a presumption in fact
under Section 114?
 Held: If a fact is proven, a presumption in law can be raised by evidence.
If it is rebuttable, an opportunity for the same must be given else the court
must comply with the presumption. The two-judge bench directed the
matter to a larger bench. Under the POCA, upon the unavailability of proof
of certain facts, the court shall make inferences to reach the primary fact.
In that case, presumption relating to gratification other than remuneration
for a public servant under Section 20 of that enactment, it shall be
considered as a bribe. This is off course, a rebuttable presumption, either
in cross examination or by producing opposing evidence.
 In this different statute, the words ‘shall be presumed’ must be read with
Section 4 of the Evidence Act, where this term has been defined and such
definitions have also been exported to other statutes including the present.
When the expression, “shall’ is used instead of “may’, a compulsion to act
is intended.
 To determine the method by which it can be proved that a public servant
took such bribe when a primary fact cannot be found. This should be
shown during the trial through direct evidence or indirect evidence or in
such manner discussed above, amongst other modes envisaged in the
Evidence Act. Proof in the Evidence Act is required to be admissible as a
reasonable man may act upon it to reach a supposition that some facts
exist.
 As a matter of prudence, it is unsafe to extend a presumption to reach
another presumption, unless so mandated by any enactment. Inferences
drawn on a factual presumption should not be used as the primary fact to
reach any other such inference. The discretion expires and hence would
cease to operate as a presumption in law.
The phenolphthalein stained currency notes in the possession of the
accused does not imply that he accepted them as they may have been
placed their deceitfully or under coercion from another. Yet, the same facts
were held pari pasu to illustration a of Section 114 and admitted.

2. Skyland International Pvt. Ltc. V. Kanta P Lalwani

 The Delhi High Court examined the illustrations of law under Section 114,
particularly illustration (f). These illustrations were held to be based upon
the human experience, needing to be applied according to the facts as also
as in-exhaustive.
Where circumstances do not show otherwise and it is in the common
course of business (speaking in terms of natural events, human conduct
and business), the Court may draw a presumption about the occurrence of
a thing that would have happened.
 Burden of Proof and Presumptions of Fact/Law

 Section 116 envisages that a tenant under equity cannot deny the title of
the landlord as doing so would forefeith his right to lease-hold the
property. He would have the right of a trespasser once he is renounced as a
tenant.
Vepa Sarathi
Quoting the book,” Tales from the Raj”, the author shows that it is close to impossible to
prove non-access. A British army officer serving in India during the Second World War could
not spend his leave in England. Two RAF officers offered to sneak him out. Nine months
later, when he reported to his Commanding Officer who was under the impression that the
officer had been sight-seeing in India, the former informed him of his wife being pregnant
and even offered him leave for the same, which the officer accepted. Held
Non-access makes the question of cohabitation moot as no opportunity has arisen.
In divorce matters often adultery is alleged by the illegitimacy of a child. Usually when such
a charge is made, AKS noted that the husband would favour a plea under Section 125 of the
CrPC for DNA testing.

3. Gautum Kundu v. State of West Bengal

The presumption may only be displaced by a strong preponderance of evidence and not
merely balance of probabilities. The only means of doing so is by establishing non-access.
The Section is based on the maxim, ‘Pater est quem nuptiae demonstrant’, ie the husband
of the mother is considered the father of a child. Five directions have been given in such
light:
1) Courts in India cannot order blood tests as a matter of course;
2) Prayer for blood test cannot ordinarily be made;
3) N
4) The Court should examine whether such a test would brand the child as illegitimate or
the woman as unchaste
4. Shri Benarsi Das v. Tiku Datta
In a succession case, the request for a blood test was denied and the guidelines
aforementioned approved. Ambiguosly, the Supreme Court admitted that DNA tests were
not routine and directions for their conduct must be given in special circumstances. 1
The law, presuming against vice and immorality, leans to favour the legitimacy of the
innocent child.

5. Shyam Lal v. Sanjeev Kumar

Even if a woman is shown to be living in “notorious adultery”, the presumption under
Section 112 is un-affected as long as it is found that the husband had access to the mother
of a child. It would offend public morality if such enquiries were made rather than a
presumption.

6. Dipanurta Roy v. Ronobruto Roy

A DNA test was ordered but the wife was not made to give a sample however it was held
that under illustration (h) of Section 114. As far as possible an order for such testing should
be avoided.

7. Rohit Shekhar v. Shri Narayan Dutt Tiwari

1
This he called the progressive dilution of a statutory bar.
 Burden of Proof and Presumptions of Fact/Law

Legitimacy and paternity have been distinguished.2

8. Shardah v. Dharampal
A three judge bench deciding the power of a matrimonial court under the Hindu Marriage
Act to direct medical testing referred to and agreed with Gautum Kundu’s case, although
Section 112 itself is not refered here.

9. Bhawani Prasad Jena v. Convener-Secretary, Orissa SCW

A two judge bench held that a conflict between the right of privacy and the need for dispute
resoulution, each should be first weighed and all diverse aspects must be considered.
Eminent need must be found ie the Court shall find it impossible to otherwise accept
objections against the presumption. This is a preposterous position, according to AKs as
under any presumption, the fact is considered to have been proved already!

10. Badvek v. Badvek

Challenging an order granting the princely sum (or not) of five hundred rupees to his
daughter, a man made a plea for a paternity test. It was found by the same that the man
had not been the father. Here, the Court held that where there is evidence to the contrary,
the presumption cannot stand and rebuttal by admitting new proof his formed. AKs has
criticized this again.

2
AKs however disagrees with such a distinction.