The operation of presumptions is a wide, as well as an intricate, matter to study despite there being no dearth of academic study on it. Its application and consequences are equally humongous, not to mention the impact on the burden of proof. Having said that, presumption is of various types. Application of each type of presumption has its own unique effect on the way trial proceeds. Presumption come in various forms; presumption of fact and law, presumption of innocence and guilt, mandatory and discretionary presumption, and rebuttable and irrefutable presumption. One such kind of presumption is provided under Section 113A of Indian Evidence Act,1872.
Here, we begin by exploring the need to bring the presumption into existence. Further, we try to understand the circumstances under which this presumption can be invoked, analyzing the ingredients that need to be fulfilled in order to trigger the presumption. The question answered in this article is whether there is a direct and unhinged link between these ingredients and the presumption or is there a void that has to be fulfilled before presumption can be invoked. I have argued that the presumption was, primarily, introduced to help prosecution’s case however by putting the burden on the prosecution to fulfil the void that presumption ought to fulfil, the benefit of presumption stands diluted.
The Need for Presumption Under 113A And 113B
It was believed that for a variant of reasons, Indian law was incompetent to rhythm with offences committed in “private sphere”. It was until the 1980s that India had no unique measures to curb abuse faced domestically. Prosecutors often failed to prove the offence of homicide or abetment to suicide due to lack of evidence in cases involving domestic abuse. In offences such as these, it has always been difficult to prove abetment of suicide or homicide, since those who viewed it were either accomplice or were reluctant to give evidence against their family members.
This is primarily why, between 1983 to 1986, there were a series of amendments introduced to bolster prosecution’s case. It was through the second amendment, in 1983, when section 498A was introduced in the Indian Penal Code. With that in mind, in order to smoothen the trial process for prosecution, section 113A was inserted in the Indian Evidence Act. Section 113A permitted the court to make an inference of abetment of suicide from the following facts-
- That the woman committed suicide within 7 years of her marriage;
- That the woman was subjected to cruelty by her husband or his relatives.
After having these ingredients fulfilled, the court, having regards to all other circumstances of the case, “may presume” that the husband or relatives of husband abetted the suicide.
At the same instant, parliament also amended the Indian Evidence Act and introduced section 113B, pioneering presumption of dowry death. Under this section, the prosecution has to prove the following facts in order to avail itself the advantage of the presumption-
- That the death has been occurred by unnatural causes;
- That the death has occurred within 7 years of the marriage;
- That the woman was subjected to cruelty or harassment in relation to dowry;
- That the harassment was soon before her death.
After showing these ingredients, courts “shall presume” dowry death.
Now, the need to introduce such presumption has been discussed, which is, to reiterate, to help the prosecution’s case in cases where the collection of evidence has been a tedious task, from the beginning. It can be argued that by helping prosecution’s case the courts have erred by showing bias when it is always supposed to be disinterested while adjudicating the matter. Despite that, it is perhaps believed that the phenomenon of ‘dowry death’ is one of the most shocking evils of society. The fact that around 1960s and 1970s, India faced a rampant increase in so-called accidental deaths of women in household post marriage. The cause of death remained suspicious and typically, the state failed to prove homicide due to lack of evidence. This continued for long until legislature felt it right to give this allowance of presumption to prosecution in order to curb this ill. This defence of it being a transformative law acts as a valid justification for the alleged bias.
How the Presumption Work Under These Sections?
Section 4 of the Indian Evidence Act lays down what is meant by “may presume” and “shall presume”-
Under 113A, the court may presume, if it deems necessary, that suicide has been abetted, under S.107. Section 498A makes husband or relatives liable for cruelty. This cruelty has been defined subsequently, which is any wilful conduct on part of the accused which might drive the woman to commit suicide or any harassment related to unlawful demand.
Whereas S.113B compliments section 304B IPC. Section 304B makes husband or relatives liable for dowry deaths. A combined reading of both these sections points that once prosecutions shows that the ingredients under section 113B are fulfilled, the court is bound to presume that dowry death has been committed.
Both of these presumption apply until disproved, which means they are rebuttable and gives accused the chance to refute the presumption raised against him. This can be one of the safeguards provided to prevent the misuse of the presumption. Therefore, a bare reading of sections and understanding how presumption work, it is easy to under this by sections 113A and 113B.
The following understanding can also be imported after reading the section-
a. It is not a mandatory presumption;
b. these ingredients cannot be used as a formula to invoke the presumption; court has to look into other circumstances.
On the other hand, under section 113B, the usage of “shall presume” suggests that the prosecution needs to show these ingredients and then the court is bound to raise the presumption. It is a mandatory presumption, which is again rebuttable.
It is a well-settled notion that to bring any change in society only introducing sections will not make a difference unless the application is consistent with the intention of the legislature. While implementing the presumption, the court cannot afford to lose sight of the fact that the operation of these presumption ought to be against the accused.
Presumption under 113A
Section 498A defines cruelty and the same definition of cruelty is imported for usage under section 113A. It is known that the courts are still defining what cruelty means, making it an evolving term. There is no straightjacket formula to put certain facts and circumstance under cruelty. It was observed by courts that cruelty ranges from trivial acts of household violence to instigating women to commit suicide. It was observed in State of West Bengal v Orilal Jaiswal that merely establishing guilt under 498A doesn’t make the courts bound to raise a presumption, on the basis of the same evidence. The court will have to look into other circumstance of the case. One of these circumstances has been enlisted in Hans Raj v State of Haryana where courts were of the opinion that the cruelty shall be of such a nature as to instigate that woman to commit suicide.
Having regard to this above reasoning of the court, Supreme court was of the opinion in Gurjit Singh v State of Punjab, that the prosecution failed to provide direct evidence to show that there was a direct link of cruelty and the death. The court interpreted ‘shown’ in the sections to mean that the standard remains ‘beyond reasonable doubt’ on part of the prosecution to prove that the cruelty was of nature to instigate the suicide of the victim.
Thus, what could be said about the application of this presumption is that the prosecution after showing that all ingredients are present will have to show nexus, which is disguised as “all other circumstances of the case” between the ingredients and the suicide. pursuant to this, the court still might be reluctant to peruse the presumption given under the section.
It was again due to lack of evidence to show a direct connection that in the cases of Gurjit Singh v State of Punjab, Modinsab Kanchgar v State of Karnataka, Ramesh Kumar v State of Chandigarh and several others, the court ruled that the prosecution failed to show the nexus and therefore, failed to fulfil the standard of reasonable doubt resulting into setting aside the conviction under S.306.
Presumption under 113B
Presumption, under 113B, does not give discretion to courts and as soon as prosecution shows the ingredient, courts are bound to raise such presumption.
However, it can be noticed that its application is also not as direct as a reading of the section would suggest. A conjoint perusing of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was exposed to harassment, in connection to dowry. The prosecution will have to show that it was not a natural death to bring it under the purview of “death occurring otherwise than in normal circumstances”. The articulation ‘soon before’ is exceptionally pertinent where Section 113B of the Evidence Act and Section 304B IPC are squeezed into administration. The prosecution is obliged to show that soon before the event there was harassment associated with dowry and just all things considered assumption works.
The determination of the period which can go in close vicinity to the term ‘soon before’ is left to be dictated by the Courts, contingent on circumstances of each case. However, it can be succinctly said that, in any case, to determine that the articulation ‘soon before’ would ordinarily suggest that the span ought not to be much between the concerned harassment and the death. This requirement obligated the courts to call in for a test to determine the nexus between the harassment and the death. This came to be known as proximate and live link test. The facts must indicate a proximate live link between dowry-related cruelty and the death caused.
Courts in several cases have acquitted the accused because the prosecution failed to prove the proximate live link by bringing in evidence for the same. Courts are cognizant that such demand of dowry or harassment related to that is not a continuous process but one that is intermittent, and the family usually calms after one instance until the other comes up. Therefore, the only eye-witnesses to these instances are family members of accused which again makes it difficult for the prosecution to prove the nexus.
Benefits of Presumption not Realized
Under Section 113A, unsurprisingly these are the two deep holes that prosecution falls in and fails, in most of the cases; first, to convince the court that the actions of the accused amounts to cruelty, which is again an evolving term; second, to convince the court that all the other circumstances also hint and link to the abetment of suicide. Despite this one could argue that presumption under this is discretionary and therefore, these are the factors that discretion depends upon, making it obligatory and fair to ask of prosecution. However, the researcher believes that prosecution shall only prove that cruelty was meted out to the woman and the second obstacle should be presumed, which is further open for accused to rebut.
Under the law accused is given a chance to rebut, despite that, usually the trial never reaches that stage because the court believes that lack of evidence cannot let the presumption to get invoked. Instead what should be done is that as soon as prosecution is able to show that cruelty is meted out with all the ingredients of 498A and unnatural death has been proved, the burden of proving that there is no link should be on the accused, under the rebuttal phase. The intention of actually putting the burden on accused so that accused comes up with evidence is rarely materialized since the presumption is raised quite seldom, especially under 113A.
Something similar can also be noted under section 113B. Even though, the presumption under 113B is a mandatory presumption. On the face of it, it looks like it favors the prosecution’s case more than section 113A but despite the impression that it gives, its impact, to the contrary, has also been diluted by bringing in proximity and live link test. With addition to proving the ingredients, the prosecution has to show a proximate live link of the ingredients with death. The researcher again believes that instead of prosecution proving the link, the link should be presumed under the presumption which later the accused will have to rebut. The presumption should in itself be of the link. Therefore, instead of prosecution proving the presence of the link, it should rather be the defence proving the absence of it.
The courts have transported the requirement that the accused has to fulfil under rebuttal to prosecution’s case, under the disguise of tests to be fulfilled in order to raise the presumption. The court’s reasoning in various cases also substantiates the argument this paper wants to put across. To say for instance, in the case of Beila Devi v State of UP that the ambiguity surrounding the term “soon before” has raised the importance of test of proximity for dowry death as well as to raise presumption. The courts have failed to realize that the presumption is in itself for dowry death, which means that if the presumption is raised successfully then prosecution need not go an extra mile to prove dowry death.
To sum it up, the researcher argues that under 113A the prosecution should only prove the ingredients and “all the other circumstances” should mean that the court should be satisfied that the nature of cruelty was grave. The fact of a proximate link to cruelty and death should be presumed as been ought to be done by this transformative section. Then as soon as the presumption is raised, the defence should be given a chance to rebuttal, where the defence will have to show the absence of any nexus between the suicide and cruelty thus, negating the possibility of abetment of suicide. This will ensure that the defence also brings evidence into the trial, which is difficult to procure by the prosecution’s case.
The question may arise as to where does court’s discretion lie under 113A. In response to that the researcher believes that the court’s discretion should be brought only when the question as to whether the ‘act of cruelty’ was grave enough to harm someone’s mental stability. This discretion was given so that courts can decide and come to terms with the changing definition of cruelty, to begin with. To this, the court’s discretion should also be limited to that extent. The discretion should start with the definition of ‘cruelty’ and should end on that only. This discretion should not be stressed so as to harm the prosecution’s case and bring it back to square one.
As for section 113B, even though the presumption is mandatory, courts have brought in a place to exercise their discretion which is the need to prove a proximate live link between death and harassment. By doing that courts have diluted the value of presumption by asking the prosecution to prove what ought to be presumed. The courts have failed to reap the benefits of the presumption and thus, have undoubtedly botched to provide for lacunae that were found in prosecution’s case with respect to lack of evidence.
We have seen how both of the presumption work under the justice system. Therefore, by introducing highly ambiguous words and bringing in the test of proximity live link, courts have taken away the advantage that the presumption sought to give to prosecution’s case.
ABOUT THE AUTHOR
Anushka is a third-year law student at the National Law School of India University. With a keen interest in constitutional law and sociology, she enjoys decoding social phenomenon using feminist lens and an interdisciplinary approach.