A Presumption
INTRODUCTION
A Presumption is an
acceptance of a fact as true or existent based upon its strong probability
evident from the circumstances. For example, if a man has not been heard from
for 7 years by his closest relatives, the court may believe in that the man is
dead. This is a presumption. Thus, when the court presumes the existence of a
fact because of its strong probability but without a direct or conclusive
proof, it is called as presumption. When a court presumes a fact, the party in
whose favor the fact is, is relieved of the initial burden of proof. For
example, as per Negotiable Instruments Acts, every holder of an instrument is
presumed to be a holder for consideration. So if a person A holds a cheque
signed by another person B, it is presumed that A has given consideration for
the cheque and so A does not have to provide any proof of that consideration.
Of course, this presumption only applies at the beginning. The other party is
free to provide proof that disproves the presumption. For example, the opposite
party can show letters by the person or recent photograph of the person showing
that he is still alive.
May Presume and Shall Presume
Provisions of Section 4 of
Crpc, in a general sense, correspond to the above classification.
"May presume"
- Whenever it is provided by this Act that the Court may presume a fact, it may
either regard such fact as proved, unless and until it is disproved, or may
call for proof of it. It gives the court a discretionary power to presume the
existence of a fact. Which means that the court may regard the fact as proved
unless and until it is disproved. All the presumptions given in Section 114 are
of this kind, which says that the court may presume the existence of any fact
which it thinks likely to have happened regard being had to the common course
of natural events, human conduct, and public and private business, in their
relation to the facts of the particular case. For example, the court may
presume that a man who is in possession of stolen goods soon after theft, is either
the thief of has received the goods knowing them to be stolen, unless he can
account for his possession.
"Shall presume" -
Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved. It
basically forces the court to presume a fact that is specified by the law
unless and until it is disproved. The court cannot ask for any evidence to
prove the existence of that fact but it may allow evidence to disprove it.
Section 107 of IPC provides for Abetment Of A
Thing that means a person abets the doing of a thing, who Instigates
any person to do that thing or Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if an act or illegal omission
takes places in pursuance of that conspiracy, and in order to the doing of that
thing or Intentionally aides, by any act or illegal omission, the doing of
that thing.”
The word Suicide in itself is nowhere defined in the
Indian Penal Code, however its meaning and import is well known and requires no
explanation. `Sui’ means `self’ and `cide’ means `killing’, thus implying an
act of self-killing. In short a person committing suicide must commit it by
himself, irrespective of the means employed by him in achieving his object of
killing himself. Suicide by itself is not an offence under either English or
Indian criminal law, though at one time it was a felony in England. In our
country, while suicide in itself is not an offence, considering that the successful
offender is beyond the reach of law, attempt to suicide is an offence under
section 309 of IPC.
RELEVANT SECTIONS
Punishment of abetment if the
act abetted is committed in consequence, and where no express provision is made
for its punishment
Whoever
abets any offence shall, if the act abetted is committed in consequence of the
abetment, and no express provision is made by this Code for the punishment of
such abetment, be punished with the punishment provided for the offence.
Explanation- An
act or offence is said to be committed in consequence of abetment, when it is
committed in consequence of the instigation, or in pursuance of the conspiracy,
or with the aid which constitutes the abetment.
Illustrations:
a) A offers a bribe to
B, a public servant, as a reward for showing A some favor in the exercise of
B's official functions. B accepts the bribe. A has abetted the offence defined
in section 161.
b) A
instigates B to give false evidence. B, in consequence of the instigation,
commits that offence. A is guilty of abetting that offence, and is liable to
the same punishment as B.
c) A and B conspire to
poison Z. A in pursuance of the conspiracy, procures the poison and delivers it
to B in order that he may administer it to Z B, in pursuance of the conspiracy,
administers the poison to Z in A 's absence and thereby causes Z's death. Here
B is guilty of murder. A is guilty of abetting that offence by conspiracy, and
is liable to the punishment for murder.
Abetment
of suicide of child or insane person
If any person under eighteen
years of age, any insane person, any delirious person, any idiot, or any person
in a state of intoxication, commits suicide, whoever abets the commission of
such suicide, shall be punished with death or [imprisonment for life], or
imprisonment for a term not exceeding ten years, and shall also be liable to
fine.
Abetment
of suicide
If any person commits
suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
ABETMENT OF SUICIDE BY A
MARRIED WOMAN
The Indian Evidence Act
section 113A deals with the presumption as to the abetment of suicide by a
married woman. Section 113A states that:
When the question is whether
the commission of suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband and
such relative of her husband had subjected her to cruelty, the curt may
presume, having regard to all other circumstances of the case, that such
suicide had been abetted by her husband or by any such relative of her husband.
For the purpose of this
section, cruelty shall have same meaning as in section 498A of the Indian Penal
Code
The term cruelty shall mean
the same as defined in 498A section of India Penal Code according to this:
Cruelty means-
a) Any willful
conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
b) Harassment of the
woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any such person related to her
to meet such demand.
The section 113A was inserted
by Criminal Law (second amendment) Act 46 of 1983. This was introduced because
there was increasing number of dowry death, which was in fact a matter of
serious concern. This evil was commented upon the Joint Committee of the House
to examine the work of Dowry Prohibition Act, 1961. The cases of cruelty by the
husband or relative of husband which would result in suicide or murder only
constituted a small fraction. In order to move this difficulty it was proposed
to amend Indian Penal Code, Indian Evidence Act and Criminal Procedure Code
that could efficiently deal with the cases of dowry death as well as cruelty to
married woman by her husband or his relatives.
The beauty of law is that if
a person wants to get some remedy done through the court he has to prove the
existence of certain factual situation. In the same way in order to attract the
provision of s113A of the Indian Evidence Act the burden of proving the fact
lies on the person who affirms it. This principle of burden of proof is
applicable to all matrimonial offences. For attracting the provision of 113A
the following things has to be proved.
1. Suicide must be
committed by a married woman
2. Suicide must have
been abetted by husband or any relative of her husband
3. Suicide must be
committed with in seven years of the marriage
4. She must have been
subjected to cruelty (as defined in 498A of Indian Penal Code) by her husband.
Presumption under section
l13A refers to one of the three ingredients of abetment as defined in section
107 IPC i.e. instigation, conspiracy and intentional aiding of the act. Where
conduct of the accused indicated that he did not want her to die even though he
might have treated her cruelly earlier, it cannot be presumed that he abetted
the suicide.
The presumption of abetment
of suicide by a married woman is rebuttable. If the accused is able to prove
that the woman has committed suicide by other reason or she was not harassed in
her matrimonial house by her in-laws in the name of demanding more dowry. This
presumption can be rebutted. There is an interesting fact to note that the
presumption of 113A is applicable only against the husband not against woman.
This was revealed with an interesting case that came before the High Court in
2000.
PRESUMPTION AS TO DOWRY DEATH
When the question is whether
a person has committed the dowry death of a woman and it is shown that soon
before her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry; the court shall
presume that such person had caused the dowry death.
Explanation- For the purposes of this
section 'dowry death' shall have the same meaning as in section 304-B of the
Indian Penal Code (45 of 1860)
This section and the section
304B of Indian Penal Code have been added by the Dowry Prohibition (Amendment)
Act No.43 of 1986 which was with effect from 19th November 1986. This was done
in order to solve the increasing problem of dowry death. The word dowry death
has been defined in 304B Indian Penal Code and the term dowry has been defined
in section 2 of the Dowry Prohibition Act 1961
Section 304B of the Indian
Penal Code states that-
Dowry death - (1) where the death of a woman is caused
by any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any demand for dowry,
such death shall be called "dowry death", and such husband or
relative shall be deemed to have caused her death.
Explanation. - For the purpose of this
sub-section, "dowry" shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961 (28 of 1961). (2)Whoever commits dowry death
shall be punished with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.
While examining the
constituents of dowry death the court held that:
(a) when the death of a woman
is caused by any burns or bodily injury; or
(b) occurs otherwise than
under normal circumstances;
(c) and the aforesaid two
facts spring within seven years of girl's marriage;
(d) and soon before her
death, she was subjected to cruelty or harassment by her husband or his
relative;
With the introduction of the
above-mentioned section the court would to some extent stop the violence and
the atrocities committed to women. The presumptions has helped a lot in solving
the problem of dowry death because in such cases it difficult to get evidence.
The presumption is favourable to men at the same the courts could se that the
women folk did not misuse this presumptions because in order to attract these
presumptions the existence of certain facts have to be proved. The credit of
trying to eradicate this evil should not be given to court alone; the
legislature has also done a considerable amount of work. While enacting this
provision it did not leave any loophole in order the convict to escape.
CONCLUSION
The legislature has by
amending the Penal Code and Evidence Act made Penal Law more strident for
dealing with and punishing offences against abetment to suicide. Such strident
laws would have a deterrent effect on the offenders only if they are so
stridently implemented by the law courts to achieve the legislative intent. On
the facts found and the offence proved to have been committed leading to
suicidal death. For offence under Section 306 IPC the sentence may extend to
ten years. In case the husband is found to have harassed his wife to such an
extent as to drive her to commit suicide, sentence of five years would be
proper sentence for the crime with the amount of fine of Rs. 20000 to be paid
to the parents of the deceased.
