UNIVERSITY FACULTY OF LAW, MLSU

• NAME –SUMIT SONI

• SUBJECT- EVIDENCE

• SUBMISSION DATE - 6-4-20

• SUBJECT INCHARGE- PD SIR

Doctrine of Res Gestae:-

Res Gestae is a Latin word which means "things done." This is the rule of law of evidence and is
an exception to hearsay rule of evidence that hearsay evidence is not admissible. It is a
spontaneous declaration made by a person immediately after an event and before the mind has an
opportunity to conjure a false story. It represents an exception to the hearsay rule. Res gestae is a
concept which as a matter of principle is employed in the English system of administration of
criminal justice under the name of "res gestae". In our system of administration of justice, Article
19 of Qanun-e-Shahadat,1984 corresponding to section 6 of the Evidence Act of 1872, is an
enacted provision of law under which statement made immediately after the occurrence under
the influence of occurrence in order to characterize it and connecting therewith would be
admissible under this article as "res gestae" evidence.

In Babulalvs W.I.T Ltd. it was observed that the statement of law in section 6 of the Evidence
Act is usually known as Res Gestae. The literal meaning of the word "res" is "everything that
may form an object of rights and includes an object, subject matter or status." In America an
attempted definition of res gestae is that it consists of the 'circumstances, facts and declarations'
which grow out of the main fact, are contemporaneous with it, and serve to illustrate its
character.

The principle has been explained by LORD NORMAND in Teper v. Reginam, 1952, 2 All ER
447, 449: 1952 AC 480:

"Nevertheless the rule (Hearsay) admits of certain carefully safe-guarded and limited exceptions,
one of which is that the words may be proved when they form part of the res gestae... It appears
to rest ultimately on two propositions -- that human utterance is both a fact and a means of
communication, and that human action may be so interwoven with words that the significance of
the action cannot be understood without the correlative words and the dissociation of the words
from the action would impede the discovery of truth." One of the leading decisions in relation to
the res gestae exception is that of the Privy Council in Ratten v. The Queen, which dealt with the
admissibility of the statement of a telephone operator who received a call from the deceased
minutes before she was allegedly murdered by her husband. The Council characterised the
statement as original evidence of 'verbal facts', as opposed to hearsay evidence, as the object of
admitting the statement was not to establish the truth of the statement made, but merely to
establish the fact that it was made. The following observation was made:

"Words spoken are facts just as much as any other action by a human being. If the speaking of
the words is a relevant fact, a witness may give evidence that they were spoken. A question of
hearsay only arises when the words spoken are relied on "testimonially," i.e., as establishing
some fact narrated by the words." The test for applying the rule of res gestae is that the statement
should be spontaneous and should form part of the same transaction ruling out any possibility of
concoction. Despite its intuitive appeal, Wigmore's notion that a person would not have time to
think up a lie before making an excited utterance in response to a startling event is not borne out
by psychological research. The time required to craft a lie is slight -- sometimes only a matter of
seconds. It was asserted that the difference in reaction time between deceptive and sincere
responses is negligible. The excited utterance exception, which tolerates more than a thirty-
minute gap between the event and the utterance, allows more than sufficient time for planning a
false report. Psychological studies support this observation and indicate that the difference
between the time of cognition and the time when the declarant may begin to fabricate is so small
that it is often impossible to measure without instruments. The res gestae doctrine has often been
criticised. According to PROFESSOR STONE, "no evidential problem is so shrouded in doubt
and confusion." It was the opinion of PROFESSOR WIGMORE that the rule is not only useless
but also harmful.

• Admissions under Indian Evidence Act,1972

The Indian Evidence Act, 1872 Section 17-31 deal with the provisions related to admission and
confessions and their relevancy.
Section 17. Admission defined

An admission is a statement,8A[oral or documentary or contained in electronic form], which

suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances, hereinafter mentioned.

Section 18. Admission- by party to proceeding or his agent

Statements made by party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly authorized by him to
make them, are admissions.

By suitor in representative character — Statements made by parties to suits, suing or sued in a

representative character, are not admissions, unless they are made while the party making them
held that character.

Statements made by—

(1) By party interested in subject-matter—persons who have any proprietary or pecuniary

interest in the subject-matter of the proceeding, and who make the statement in their character of
persons so interested, or

(2) By person from whom interest derived- Persons from whom the parties to the suit have
derived their interest in the subject-matter of the suit, are admissions, if they are made during the
continuance of the interest of the persons making the statements.

Section 19. Admissions by persons whose position must be proved as against party to suit

Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions, if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against them, and if they are made
whilst the person making them occupies such position or is subject to such liability.

Section 20. Admissions by persons expressly referred to by party to suit

Statements made by persons to whom party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.

Thus, by taking the collecting conclusion from section 17 to 20 admission can be define as a
statement oral or documentary or in electronic form which suggest any inference as to any fact in
issue or relevant fact and made by
1. A party to proceeding,

2. An authorized agent to any party to proceeding,

3. Parties to representative suit holding capacity as representative while making the statement,

4. Persons who have proprietary or peculiar interest in the subject matter of proceeding,

5. Person from whom parties to the suit have derived their interest in the subject matter of the
suit.

6. Persons whose position and liability it is necessary to prove against any party to the suit.

7. Persons to whom a party to the suit has expressly referred for information in reference to
matter in dispute.

Uses of Admission:-

Proof making them, and by or on their behalf Section 21. of admissions against persons

Admissions are relevant and may be proved as against the person who makes them, or his
representative in interest; but they cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a
nature that, if the person making it were dead, it would be relevant as between third persons
under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a
statement of the existence of any state of mind of body, relevant or in issue, made at or about the
time when such state of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant
otherwise than as an admission.

• Confession Under Indian Evidence Act

The term confession is not defined in the Indian Evidence Act. However, it is dealt with from
Section 24 to 30 of the Evidence Act[1] and in Section 164, 281 and 463 in the Criminal
Procedure Code, 1973. Confessional statements operate on the presumption that an accused will
not make an untrue statement which establishes his guilt. In the case of Pakala Narayan Swami,
Lord Atkin stated that “A confession must either admit in terms the offence or at any rate
substantially all the facts which constitute the offence. An admission of a gravely incriminating
fact, even a conclusively incriminating fact is not in itself a confession”.[2] A confession has to
be a direct admittance of an offence, when a statement might be described as suggesting an
inference it will not amount to a confession.[3] In the case of Nishi Kant Jha v State of Bihar the
Supreme Court stated that one can rely on a part of the confessional statement and can reject the
rest.[4] Confession cannot be regarded as the sole basis for a conviction as prudence and justice
dictates that such evidence may be used as corroborative piece of evidence.[5] Deliberate and
voluntary confessions of guilt, if proved are considered the most effectual proofs in law.[6]
Confessions are required to be accepted or rejected as a whole.[7] Confession of a co-accused
cannot be regarded as substantive evidence.[8]

Forms of Confession-

When a confession is made in the Court itself, it is called a judicial confession whilst the one
made to anyone outside the Court is referred to as extra-judicial confession. Judicial confessions
are made before a magistrate under Section 164 of Crpc or in the Court during proceedings.[9] A
conviction may be based on judicial confessions.

Extra Judicial confessions are those which are made elsewhere than before the Court or a
magistrate. If proved to be credible with corroborative evidence, conviction may be based upon
it. It not imperative for the statement to address an individual, it may be in form of a prayer,
writing or heard by a passerby. The Courts do not inherently start of by considering extra-
judicial confessions to be a weak form of confession, rather they are required apply two test- is it
voluntary and is it true.[10] In the case of Sahoo v. State of U.P, the after murdering his
daughter-in-law, was heard by several neighbors stating “I have finished her”. This statement
was held to be confessionary in nature.

Section 24

Section 24 of the Indian Evidence Act, 1872 refers to the term confession. Although confession
is not defined in the section, it refers to the relevancy of a confession. Any confession that is
made by an accused will be considered irrelevant, if it is caused by inducement, threat or
promise. This inducement, threat or promise should have reference to the charge against him,
which is produced from a person in authority, providing the accused reasonable grounds to
believe that by making the confession he would gain some form of advantage. This section does
not require positive proof, a well grounded conjecture reasonably based upon the circumstances
disclosed in the evidence is sufficient to exclude a confession.[11] If a confession is made by a
person before others accused him of an offence such a confession. In case of ordinary
confessions, the burden is not upon the prosecution to establish that the confession was made
without threat, inducement or promise. However, it is the right of the accused to have the
confession excluded, if some evidence of mal practice is proved by the accused. In the case of
State of MP v. DayaramHansraj, wherein the magistrate while recording the confession elicited
answers by questioning the accused, such a confession cannot be considered voluntary in
nature.[12] When a confessional statement recorded by a Judicial Magistrate with all the
precautions and which was corroborated by direct and indirect evidence, was considered a
voluntary confession.[13] A person making a statement as a suspect who is subsequently
considered an accused, his statement would amount to a confession.[14]

Section 25

Section 25 states that no confession made to a police officer can be used against the accused in
the Court of law. The principle behind this section is to avoid entertaining false or forceful
confessions.[15] A confession made to a police officer while in custody, it is not provable in any
proceedings in which he is charged to the commission of an offence. The privilege of right
against self incrimination forms the roots of this section. Further, it is framed to discourage the
authorities against abuse of power.[16] In R v. MuruganRamasay,[17] the Court identifies the
fact that Police authority is capable of creating menace for those under its scrutiny, this section is
framed to protect people from such an authority. A confession when written in a letter, signed by
the accused was delivered to a police officer was considered admissible as it was not written in
the presence of the police officer.[18] In the case of M Yellappa v. State of Karnataka, wherein
the accused confessed of murdering his wife, stating during the commission of the offence no
one was present except him, his wife and their child. It was held by the Court that the statement
‘one one was present except him’ cannot be separated as exculpatory evidence, as it provided a
connecting link in the chain of circumstances.[19] However mere presence of a police officer
does not render the statement inadmissible. If person A is making a confession to person B and a
police officer happen to overhear the same, such a confession will be considered voluntary and
admissible.

Section 26

Section 26 states that if a confession is made while the person is in the custody of a police
officer, unless he is in the presence of a competent magistrate. This section excludes confessions
made to police officers in any circumstance. The presence of a Magistrate secures the freedom,
safety and voluntary nature of the confession and the person confessing can do so without the
fear of a police officer.[20]A confession made by a person to a police officer will be admissible
if done in front of the Magistrate with the procedure prescribed under Section 164 of Crpc.

Section 27
This section is based on the principle that if a confession made by an accused is supported by the
discovery of a fact, it may be presumed to be true and not extracted. It will come into operation
only when: (a) if and when certain facts are deposed to as discovered in consequences of
information received from an accused person in police custody, (b) if the information relates to
the fact discovered. This section serves as a proviso for Section 25 & 26. This section does not
clarify whether the information can only be received by a police officer.[21] The broad ground
for not admitting confession made under inducement or threat to police officer still exist,
however this exclusion disappears if the confession relates to discovery of a fact in consequences
of information given.[22] It is immaterial whether the statement itself can lead to discovery or
more information is required by the police.[23] In the case of Ramchandra, it was stated when
the accused was in judicial custody under a remand order, he was temporarily in the custody of
the police when he was interrogated he must he held to have been in such custody for the
purposes of applicability of this section.[24] A confession to which this section applies is
admissible even though it was obtained under circumstances which makes it inadmissible under
section 24.[25]

Section 28

Section 28 states that a confession is admissible if all forces and influence of threat, inducement
or promise is removed and the confession is free and voluntary. This removal is done either by
intervening, lapse of time or by the removal of person holding the accused under inducement.
The onus to prove that inducement has been removed is upon the prosecution.[26]

Section 29

This section states that if a confession is relevant, it will not be considered irrelevant if It is made
under the promise of secrecy, in consequence of a deception practiced on the accused, when the
accused was drunk, in answer to a question the accused need not have answered and in
consequences of the accused not receiving a warning that he was not bound to make it and that it
might be used against him. Evidence provided by a policeman who overheard an accused
person’s statement made in another room and in ignorance of policeman’s vicinity and
uninfluenced by it was considered admissible.[27] When a confession was recorded with giving
warning as per Section 164 of Crpc, it was considered admissible.[28] In the case of Rex v.
Derrington, it was held that a letter written by the accused was admissible regardless of how it
was obtained.[29]

• Dying Declaration Under Indian Evidence Act

Dying declaration is the statement made by a person as to the cause of his death or as to the
circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement that is given just before the death is
dying declaration. Also, the statement that is given before and which explains the cause of death
is also dying declaration. A person who is conscious and knows that death is about to happen can
make a statement about the reason of his/her death will be admissible in the court. The word
dying declaration explains the word itself. It means a written or verbal statement of relevant facts
made by the person who is about to die or is dead. It is the statement of a person who knew the
cause of his death or the circumstances of his death. It is said that a man will not meet his maker
with lying on his mouth (nemo marituruspresumunturmentri). In our Indian Law it is a fact that
is believed that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’.[1]

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a word. The
Apex court stated that the evidentiary value of the gestures and signs will depend on certain
factors like who recorded the statement, what are the gestures, what were the questions asked,
were the questions asked were simple or not etc. Gestures can be difficult to interpret but this
does not mean that the accuse can roam freely after hurting someone. If the victim is not able to
speak, gestures or signs can be taken as evidence.

In Nirbhaya case 2013, a bench of Justices DipakMisra, R Banumathi and Ashok Bhushan said a
dying declaration should not necessarily be made by words or in writing and it could be through
gestures. Not just words but even gestures can be made admissible in the court now.

Question answer form

Dying declaration should be in question and answer form. If the dying declaration is not in
question answer form it was held that it cannot be discarded for this reason alone. The Statement
can be recorded in a narrative way also. It is not mandatory to record it in question answer form.
But it is always best to record it in question answer form as that will make the evidentiary value
of the dying declaration more.

Fitness Of the victim should be examined

While recording the statement of the victim, it is very important to examine the health of the
victim. It can be possible that he is making stories in the presence of drugs given. Judicial
Magistrate should satisfy himself that the victim is in a fit condition to give a statement. A
certificate should be obtained by the judicial magistrate from the doctors examining the victim.
This certificate can prove in court that the statement given was in fit condition and it is true. If
the circumstances do not permit attendance of the medical officer, then judicial magistrate can
record statement without the medical certificate but judicial magistrate should provide the reason
why he considered it indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value
than any other dying declaration. Doctors and police officer are also authorized to record the
dying declaration if the magistrate is not present. But sometimes the situation arises where dying
declaration recorded by the magistrate can be questioned. For example, If the magistrate records
it even when the doctor does not approve the victim medically fit. In this situation, the
evidentiary value of the dying declaration can be questioned.

The court always looks into the certain things to decide the value of the statements. The court
always seeks if the victim was mentally fit while giving the statement. If the victim is not fit at
the time of giving a statement then that statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its evidentiary
value. It should be taken with precaution and keeping in minds the following points:

1. The victim should be mentally fit to given statement. A medical certificate should be given by
the doctor about her health.

2. Doctors and the Police officer can record the statement but it is best if a magistrate records it.

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.[2] The first was
recorded by the doctor when she was admitted to the hospital, the second was by SDM during
which she gave exact details of the crime and the third one was recorded by a metropolitan
magistrate and was mostly by gestures.

In this case, all three dying declarations were recorded. But the one recorded by the magistrate
was important. And the court did accept the dying declaration recorded by magistrate even when
it was in gestures and nods.

In Kushal Rao v State of Bombay[3], The Supreme Court Of India accordingly states that the
court must be satisfied that the deceased was mentally fit to make the statement. And victim had
the opportunity to observe and identify the accused. The victim should not be making the
statement under any influence. Also, Supreme Court Of India held that once the court is satisfied
that the dying declaration is true, the conviction can be upheld and there is no need for further
corroboration.

If the dying declaration is recorded by the medical officer or police officer, it should be attested
by one or more person that is present there.
Language Of Statement

As far as possible the statement should be recorded in the language of the declarant or the court
language. The court cannot discard the dying declaration on the basis of the language. It can be
recorded in any language. Even if the deceased made the statement in Urdu, Hindi, Punjabi
languages, it was held that statement could not be discarded on the ground of language alone or
on the ground that it was recorded in Urdu. Where the statement was in Urdu and the magistrate
recorded it in English but the precaution was taken in explaining every statement to the deceased
by another person, it was held that the statement was the valid dying declaration.

Points to remember-

1. Dying declaration can be recorded in any language.

2. If the statement was in another language than the one which magistrate recorded, then
precaution should be taken.

3. The court cannot reject or discard the dying declaration on the sole ground of language.

In Biju @ Joseph Vs State Of Kerala[4] it was held by the court that merely on the ground that
the statement of the deceased was in her own language can not vitiate the dying declaration. It
was stated by the High Court Of Kerala :

“Assuming that the deceased gave her statement in her own language, the dying declaration
would not vitiate merely because it was recorded in a different language. We bear in mind that it
is not unusual that courts record evidence in the language of the court even when witnesses
depose in their own language. Judicial officers are used to the practice of translating the
statements from the language of the parties to the language of the court. Such translation
process would not upset either the admissibility of the statement or its reliability”

Multiple dying declarations-

Supreme Court Of India held that multiple dying declarations can be relied upon without
corroboration if there is consistency in all the dying declaration. If all the dying declarations are
similar to each other than it can be admissible.[5]

But if the dying declaration is different from each other than the court will examine the facts of
the case or can examine the statement of other witnesses to ascertain the truth of the case.

The statement of the deceased should match the facts of the case. It is very important to
understand the nature of dying declaration. Points to remember in multiple dying declarations:

1. Consistency in all the dying declaration should be there.

2. If all the dying declaration does not match, then the court will examine the facts of the case
with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay[6], this case set the importance of dying declaration and what
is the right process to record it. In this case, if the dying declaration is recorded in question-
answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized
person, then it is admissible and reliable. If there are multiple dying declarations, then court
looks into all these points to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon without
corroboration if consistency is maintained throughout. Otherwise, the courts would have to
examine the statement of other witnesses to ascertain the truth in a criminal trial.

An Expectation of death not necessary-

Under English Law, the victim should not be under any expectation of death. Evidence Act has
taken this law from English law. If the statement has been made even when no cause of death
had arisen then also the statement will be relevant. It is not important at all that the statement
recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor[7], it was held that the letter given by the deceased to
his wife before going to the place where he was killed was relevant. The court said that the
statement made must be at any rate near death or the circumstances of the transaction explaining
his death is relevant under section 32 of Evidence Act. In this case, the court stated that dying
declaration can be any statement that explains the cause of death or the circumstances of the
transaction explaining his death. Hence, statements as to any of the circumstances of the
transaction which resulted in the death would be included.

F.I.R as dying declaration-

When an injured person lodges a FIR and then dies, it was held that the FIR will be relevant as a
dying declaration.

In Munnu Raja and another v. State of M.P.[8], the Supreme Court Of India held that statement
by injured person recorded as FIR can be treated as dying declaration and such statement is
admissible under Section 32 of Indian Evidence Act. It was also held that dying declaration must
not cover the whole incident or narrate the case history. Corroboration is not necessary for this
situation, Dying declaration can be the sole purpose for conviction.

If declarant does not die-

The question arises when the dying declaration is recorded and the declarant does not die. The
statement is only converted in dying declaration when the victim/ declarant dies. If the declarant
does not die, then the declarant can be used as a witness in the court against the accused. It is
said that the dying declaration is only recorded on the presumption that the declarant is about to
die. And the declarant won’t lie just before dying. But if the declarant does not die then the
statement can’t be admissible as dying declaration.

Conclusion-

Dying declaration is one of the most important evidence that is admissible in court as dying
declaration can be a sole purpose for conviction of accuse. Hence, it should be recorded carefully
with all the procedure that the court has mentioned. It should not be tampered at all by anyone. If
the dying declaration is incomplete, then it is very much to be rejected by the court. It is on the
court discretion to check if the dying declaration is recorded carefully or not.

• PRINCIPLES OF BURDEN OF PROOF UNDER INDIAN EVIDENCE ACT

The underlining principles of the Burden of Proof are contained in the concept of Onus probandi
and Factum probans. In this explanation, Onus (burden) is the liability and obligation to prove a
fact which can shift between parties in the case. Sections 101, 102 and 103 of the Indian
Evidence Act provides the standard laws that govern the Burden of Proof.

Section 101

This section in its explanation on Burden of Proof states that whoever wants the court to proffer
judgment to a legal case or right based on the availability of facts, must prove those facts beyond
any reasonable doubt.

Illustration

• In a case that a person A desires the court to offer judgment on B following a crime committed,
A must prove that B has committed the said crime.

• A has prayed to the court to give judgment that he is to own a certain land which presently is
possessed by B, based on the facts he presents which B has denied. In this case, A must prove
those facts to be true.

Real Case:
Supreme Court in a case between Jarnail and State of Punjab A I R 1996 SC 755 that in all
criminal case, the responsibility of proving if the accused had committed the crime beyond all
reasonable doubt rests on the prosecution and if it fails to establish concrete evidence to shed off
the burden, it cannot depend on the evidence brought by the accused on defense in the case. The
prosecution does not rely on the evidence of the accused to convict the defendant.

Section 102 – Burden of Proof of Lies

In a case brought before the court, the burden of proof lies who has the tendency to fail if no
evidence is supplied before the court from either of the parties.

Illustration

• If A takes B to court following a feud because of a land which B is in possession and A asserts
that it was left to A following a will made by C, who was B’s father. If neither A or B presents
any evidence, then B will retain the property.

Real Case:

In a case between Triro and Dev Raj A I R 1993 J&K 14. Because of the delay in constructing
the suit, the defendant had prayed the court over a limitation of the period. The position of the
plaintiff was to know the cause of the delay and the burden of proving if the case was within the
given period was on the plaintiff.

Section 103-Burden as to a fact

The burden of proof to a fact rests on that person who desires the court to believe in the existence
of such fact unless a law authorizes the proof of the fact to be established by any particular
individual.

Illustration

If A sues B for theft, and desires the court to accept that B admitted committing the theft to C. A
must prove that fact and if B denies it, B must prove it.

The principle of this section states that once a party desires the court to accept and act based on
the existence of a fact, he must prove that fact. This principle is called “rule of convenience of
the burden of proof”’ and is contained in sections, 104, 113, 113a and 114a.
Section 104 – Burden of proving the fact to be proved to make evidence admissible

This is a burden of proving a fact that is necessary to be proved to allow any person to establish
evidence of any fact and is on the person who intends to establish such an evidence.

Illustration

• If A desires to prove the declaration of death by B, A must prove that B is dead.

• B intends to prove by secondary evidence, the contents of a lost document.

• A must prove that the document cannot be found. This section provides the proof of a fact for
which evidence can be admitted where such admission is based on the fact of which the party
proves which must be in tandem with the admissibility.

Section 105 – Burden of proving that case of accused comes within exceptions

When a person is accused of an offense, the fact required to establish the circumstances
surrounding the case excluding General Exceptions in the Indian Penal Code 45 of 1860, or in
any regulations defining it, is upon him while the court will presume the absence of such a
circumstance.

Illustration

• When A who is accused of murder alleges that because of lunacy he was unaware of the nature
of the act. The burden of proof rests on A.

Section 106 – Burden of proving fact specially within the knowledge

When any fact confined to the knowledge of a person, the burden of proving that fact is on the
person.

Illustration

• The burden of proving the fact is on a person who commits an act with the intention which is
different from the circumstances that the act suggest.

• On an occasion that A is charged on boarding a train without a ticket, the burden of proving
such a fact is on A.
Real Case

In a case between Eshwarai and Karnataka 1994 SC, if a man and a woman is found hiding
under the bedroom of the deceased who died because of injuries sustained, the two found must
proof the lies upon them and explain their presence in the room as to the circumstance to the
death found.

Section 107 – Burden of proving the death of a person known to have been alive within
thirty years.

In a situation of a controversy whether a person is dead or alive, and it is established that he had
been alive for the last thirty years, the burden of proving that he is not alive is on the person who
states it.

Section 108 -Burden of proving that person is alive who has not been heard for seven years

This section states that if a person who has disappeared and has been unheard of for seven years
by those who would naturally have heard of him, if he were alive, that person would be
presumed to be dead. This presumption arises when a question of him being alive or dead arises
in the court. Hence, if the court adopts the presumption, the party who claims that the person is
alive has to prove it. It is a simple presumption of death and not the time of death.

In Chard v Chard (1956 P239: 1955 3 WLR 954), a man got married in 1909. He last heard of
his wife in 1917 and remarried in 1933, and subsequently filed a petition for a declaration that
the marriage of 1933 was a nullity. The court held that the presumption of her death was not
proven as any evidence of the condition of her health or those, who would have naturally heard
of her, were not given and therefore, the marriage of 1933 was a nullity.

Section 109

When a question arises as to whether certain persons are partners, landlord and tenant or
principal and agent and it has been shown that they have been acting as such; the court presumes
them to be so related. If a person denies the relationship or affirms that the same has been ceased,
the burden of proof to prove that they were never related or have ceased to relate lies on him.
Hence, the court presumes the existing status quo or in the continuity of things.

Section 110
This section simply states that if the question is whether a person is the owner of anything of
which he is shown to be in possession, the burden of proving that he is not the owner is on the
person affirming that he is not the owner.

Section 111

This section states that if a person enjoys the active confidence of the other, he must act in good
faith to the other and the burden lies upon him to prove that he did act in good faith. Illustration
(b) to the section makes it clearer: The good faith of a sale by a son just come of age to a father is
in question in a suit brought by the son. The burden of proving the good faith of the transaction is
on the father.

Section 111 A

This section makes the court presume that a person is liable for disturbing public order and peace
of an area declared to be a disturbed area if he has been guilty of certain offences in the past.
These offences include the offences themselves or criminal conspiracy or attempt to commit or
their abatement. They include sections 121, 121A, 122 and 123 of the Indian penal code.