A Presumption

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.