​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving that a Person is Alive Who Has Not Been Heard of for Seven Years[Section 111]

1. Introduction
Questions relating to whether a person is alive or dead frequently arise in civil and criminal proceedings, especially in matters concerning succession, insurance, property rights, or matrimonial disputes. The Bharatiya Sakshya Adhiniyam, 2023 provides specific rules governing the burden of proof in such situations. Section 111 deals with the presumption of death where a person has not been heard of for a continuous period of seven years.

2. Statutory Provision under Section 111Section 111 provides that:

• When the question is whether a person is alive or dead, and
• it is proved that he has not been heard of for seven years by persons who would naturally have heard of him if he had been alive,

then the burden of proving that such person is alive shifts to the person who affirms that he is alive.
Thus, the law raises a presumption of death after seven years of unexplained absence.

3. Scope and RationaleThis provision is based on the principle of continuity of things. Ordinarily, once a state of affairs is shown to exist, the law presumes that it continues for the period during which such a state usually lasts. Human life is presumed to continue for a reasonable period, generally up to thirty years, as reflected in Section 110 of the Bharatiya Sakshya Adhiniyam.

Section 111 operates as an exception or proviso to Section 110. While Section 110 presumes continuance of life, Section 111 introduces a presumption of death when the condition of seven years’ absence is satisfied. Both sections must therefore be read together.

4. Burden of Proving DeathUnder Section 110, when a person is shown to have been alive within the last thirty years, the burden lies on the party asserting that he is dead. However, once the conditions under Section 111 are fulfilled, the presumption of continuance of life ceases, and the burden shifts to the party who claims that the person is still alive.

To attract Section 111, the following conditions must be proved:
(i) Absence for Seven YearsThe person must not have been heard of for a continuous period of seven years. Such absence gives rise to a rebuttable presumption of death.
(ii) Persons Who Would Naturally Have HeardThe absence must be established with reference to persons who would naturally and ordinarily have heard of him had he been alive, such as close family members, relatives, or friends.
If a person deliberately avoids contact—for example, an absconder evading arrest—the presumption may not arise, as silence in such cases is not unnatural.
In Hemat Kishore v. Brij Raj Kishore, where the father claimed to have seen his son alive within five years, the court refused to raise the presumption of death despite the claims of the wife and children.

5. No Presumption as to Time or Manner of Death
A crucial limitation of Section 111 is that it raises only a presumption of death, and not of:

• the time of death, or
• the manner or circumstances of death.

If the exact date or time of death is a material fact in issue, the party asserting it must prove the same by direct or circumstantial evidence.
In Saroop Singh v. Bantoo, the court held that although death could be presumed due to seven years’ absence, it could not be presumed that death occurred exactly seven years prior to the institution of the suit.

6. Presumption as to Survivorship (Simultaneous Deaths)
The principle relating to simultaneous deaths—such as when two persons die in a common calamity and the order of death cannot be determined—is not covered under Sections 110 and 111. Traditionally, the younger is presumed to have survived the elder, but this rule has been statutorily recognized under Section 21 of the Hindu Succession Act, not under the Bharatiya Sakshya Adhiniyam.

7. Judicial Interpretation
In LIC of India v. Anuradha, the Supreme Court examined the interplay between Sections 110 and 111 and laid down important principles:

• Section 111 is an exception to Section 110.
• Section 110 shifts the burden to prove death on the person asserting it.
• Section 111 shifts the burden back to the person asserting that the individual is alive.
• The presumption under Section 111 is limited strictly to the fact of death.
• No presumption arises regarding the date, time, or cause of death.
• The presumption arises only after the full lapse of seven years, not even a day earlier.
• The presumption can be raised only when the issue is brought before a competent court or authority.
• If a specific date or time of death is asserted, it must be proved by evidence and not by presumption.

8. Conclusion
Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 provides a balanced rule of evidence by recognizing human probabilities while safeguarding legal certainty. By shifting the burden of proof after seven years of unexplained absence, it prevents indefinite uncertainty regarding a person’s status. At the same time, by refusing to presume the time or manner of death, the law ensures that critical facts affecting rights and liabilities are established only through proper evidence.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving the Death of a Person Known to Have Been Alive Within Thirty Years [Section 110]
1. Introduction
In legal proceedings, questions often arise as to whether a person is alive or dead, particularly in matters relating to succession, insurance claims, property disputes, and matrimonial rights. The Bharatiya Sakshya Adhiniyam, 2023 lays down clear rules regarding the burden of proof in such situations. Section 110 specifically deals with cases where a person is shown to have been alive within the last thirty years.

2. Statutory Provision under Section 110
Section 110 provides that:

• When the question is whether a person is alive or dead, and
• it is shown that such person was alive within thirty years,

then the burden of proving that he is dead lies on the person who asserts that he has died.
Thus, the law presumes the continuance of life once it is established that a person was alive within the preceding thirty years.

3. Scope and Principle
This provision is founded on the principle of presumption of continuity of life. Human life, once proved to exist, is presumed to continue for a reasonable period unless the contrary is shown. Section 110 embodies this principle by placing the onus on the party alleging death.
The presumption under this Section is rebuttable, meaning that it can be displaced by credible evidence showing that the person has in fact died. Until such evidence is produced, the court is bound to proceed on the assumption that the person continues to be alive.

4. Burden of Proof
The essential requirement to attract Section 110 is proof that the person was alive within thirty years prior to the date on which the question of life or death arises. Once this fact is established:

• The law presumes that the person is alive; and
• The party asserting death must prove it by leading appropriate evidence.

The evidence may be direct or circumstantial, depending upon the facts of the case.

5. Relationship with Section 111
Section 110 must be read together with Section 111 of the Bharatiya Sakshya Adhiniyam. While Section 110 presumes continuance of life, Section 111 provides an exception by raising a presumption of death where a person has not been heard of for seven years by those who would naturally have heard of him if he were alive. Section 111, therefore, operates as a proviso to Section 110.

6. Conclusion
Section 110 of the Bharatiya Sakshya Adhiniyam, 2023 reflects a practical and logical rule of evidence based on human experience and probability. By presuming the continuance of life for thirty years, it prevents premature or speculative conclusions regarding death and ensures that the party alleging death discharges the burden of proof. This provision, read along with Section 111, creates a coherent legal framework governing presumptions relating to life and death.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving Fact Especially Within Knowledge [Section 109]

1. Introduction
In judicial proceedings, there are situations where certain facts are exclusively or especially within the knowledge of a particular person. In such cases, it would be unreasonable and impractical to expect the opposing party to prove those facts. To address this difficulty, the Bharatiya Sakshya Adhiniyam, 2023 incorporates a special rule regarding the burden of proof under Section 109.

2. Statutory Provision under Section 109
Section 109 provides that:

• When any fact is especially within the knowledge of any person,
• the burden of proving that fact lies upon him.

This provision shifts the burden of proof only with respect to those specific facts that are peculiarly within the personal knowledge of a party.

3. Illustrations under the Section
The Act clarifies the application of this principle through illustrations:

• Illustration (a):
  When a person performs an act with an intention different from what the act and its surrounding circumstances ordinarily suggest, the burden of proving such special intention lies on that person.
• Illustration (b):
  If a person is charged with travelling on a railway without a ticket, the burden of proving that he possessed a valid ticket rests upon him, as this fact is especially within his knowledge.

4. Scope and Nature of Section 109
Section 109 is an exception to the general rule laid down in Section 104, which states that the burden of proof lies on the person who asserts a fact. This Section applies only where:

• The fact is pre-eminently or exceptionally within the knowledge of the accused or a particular party; and
• Proving such fact would be impossible or disproportionately difficult for the opposite party.

Importantly, this Section does not absolve the prosecution of its primary duty to prove the commission of an offence beyond reasonable doubt. It merely casts a limited burden on the accused to explain facts within his special knowledge, once the prosecution has established foundational facts.

5. Rationale of Section 109
The word “especially” signifies facts that are not merely within the general knowledge of a person, but facts that are peculiarly and exclusively known to him. The provision is designed to prevent failure of justice in exceptional situations where:

• The prosecution has proved circumstances pointing towards guilt; and
• Certain crucial links in the chain of events can be explained only by the accused.

If Section 109 were interpreted broadly, it would unjustly reverse the fundamental principle of criminal law by compelling the accused to prove innocence. Hence, courts apply this provision with caution and restraint.

6. Judicial Interpretation

• In Sidhartha Vashist @ Manu Sharma v. State (NCT of Delhi), the Supreme Court held that the whereabouts and possession of the weapon used in the offence were facts especially within the knowledge of the accused. His failure to give a proper explanation entitled the court to draw an adverse inference under Section 106 of the Indian Evidence Act (corresponding to Section 109 of BSA).
• In State of West Bengal v. Mir Mohammad Omar, the accused had abducted the deceased, and the victim was later found murdered. The Court held that once abduction was proved, the accused alone knew what happened to the deceased thereafter. Their failure to explain justified drawing an inference of guilt under Section 109.
• Conversely, in Manharan Rajwade v. State of Chhattisgarh, the Supreme Court cautioned that Section 109 cannot be invoked unless the prosecution first establishes the foundational facts, such as the theory of “last seen together”. Since the prosecution failed to do so, the burden could not be shifted to the accused, and he was acquitted.

7. Doctrine of Reverse Burden / Reverse Onus
Section 109 embodies the principle of reverse onus, where the burden temporarily shifts to the accused to explain certain facts. However:

• This shift occurs only after the prosecution has discharged its initial burden;
• The provision does not compel the accused to prove innocence;
• It merely calls upon the accused to explain facts within his exclusive knowledge.

Failure to offer a reasonable explanation may permit the court to draw an adverse inference, but conviction cannot rest solely on this presumption.

8. Conclusion
Section 109 of the Bharatiya Sakshya Adhiniyam 2023 strikes a careful balance between the rights of the accused and the interests of justice. While reaffirming the principle that the prosecution must prove guilt beyond reasonable doubt, it recognizes that certain facts can be proved only by the person who has special knowledge of them. Applied cautiously, this provision prevents concealment of truth and ensures that justice is not defeated by technical impossibilities of proof.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Certain Offences [Section 115]
1. Introduction
Certain offences such as waging war, attempting to wage war, or abetting the waging of war against the Government of India are treated as extremely serious due to their direct impact on national security and public order. Because such acts often occur in disturbed or insurgency-like conditions—where direct evidence may be difficult to collect--Section 115 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) authorises the Court to raise a statutory presumption against an accused person if specific conditions are fulfilled.

2. Section 115(1): When the Presumption Arises
Under Section 115(1), the Court shall presume (unless the contrary is shown) that the accused committed the offence, when the following conditions exist:
A. Accusation of specified offencesThe person must be accused of an offence listed in Section 115(2).
B. The place must be within a special disturbed contextThe offence must relate to an area that is either:

1. A “disturbed area” declared under any law meant for suppression of disorder and maintenance of public order; or
2. An area where, for more than one month, there has been extensive disturbance of public peace.

C. Presence at a specific place and timeIt must be shown that the accused was present at a place in such area at the time when:

• firearms or explosives were used, and
• they were used at or from that place, to:
  • attack, or
  • resist
    the members of:
  • any armed forces, or
  • forces responsible for maintenance of public order,
    while they were acting in discharge of their official duties.

✅ Effect:
If these conditions are satisfied, the Court shall presume that such person committed the offence unless the contrary is shown.

3. Nature of Presumption

• This is a presumption of law (statutory presumption).
• It is rebuttable because the wording is: “shall be presumed unless the contrary is shown.”
• Once the prosecution establishes the foundational facts (disturbed area + presence + firearm/explosive attack), the burden shifts to the accused to rebut the presumption.

4. Offences Covered – Section 115(2)Section 115(2) specifies which offences trigger Section 115(1). These include:
(a) Direct BNS offencesOffences under the Bharatiya Nyaya Sanhita, 2023:

• Section 147 – Waging, attempting to wage war, or abetting waging war against the Government of India
• Section 148 – Conspiracy to commit offences punishable under Section 147
• Section 149 – Collecting arms etc., with intention of waging war against the Government of India
• Section 150 – Concealing with intent to facilitate design to wage war

(b) Related forms of liabilityAlso covered are:

• Criminal conspiracy, or
• attempt, or
• abetment
  to commit offences under:
• Section 149, or
• Section 150 of BNS, 2023.

5. Key Notes (Quick Revision)

• Applies in disturbed areas or areas of prolonged public peace disturbance.
• Triggered when accused is shown to be present at a location used for firearm/explosive attack/resistance against forces on duty.
• Presumption is mandatory (shall presume) but rebuttable.
• Once foundational facts are proved, burden shifts to accused to show contrary.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption by the Court [Sections 115–123]

1. Introduction
A presumption in law refers to a process by which the Court infers the existence of a fact from another proved fact, based on probability, experience, and logical reasoning. Presumptions help the judicial system function efficiently by avoiding the impractical burden of proving every fact directly, especially where human conduct, natural events, or statutory policy justify such inference.
Under the Bharatiya Sakshya Adhiniyam, 2023, Sections 115 to 123 deal with different kinds of presumptions, laying down when the Court may presume, shall presume, or treat a fact as conclusive proof. Broadly, presumptions are classified into:

1. Presumption of Facts
2. Presumption of Law

2. Presumption of Facts
Presumptions of facts are those natural and logical inferences which the Court draws from the surrounding circumstances, human behaviour, and the common course of events.
Nature and Meaning

• They arise from experience of life and human conduct.
• Also called natural or material presumptions.
• They are essentially a form of circumstantial evidence.
• The Court uses reasoning to infer one fact from another.

Key Characteristics

• Always rebuttable.
• Entirely discretionary—the Court may presume or may decline to presume.
• Not fixed or uniform; they depend on facts of each case.
• They shift the burden of proof to the opposing party once drawn.

Examples

• Presumption that a person found in possession of stolen goods soon after theft is either the thief or a receiver of stolen property.
• Presumption regarding abetment of suicide by a married woman under Section 117.
• Presumption drawn from conduct such as withholding evidence.

3. Presumption of Law
Presumptions of law are those inferences which the law itself mandates or recognises, irrespective of judicial discretion.
Nature and Meaning

• They are created by statute.
• Courts are bound to apply them once foundational facts are proved.
• Based on public policy, legal certainty, and uniformity.

Types of Presumptions of Law

1. Rebuttable Presumptions of Law
   • These presumptions operate unless disproved.
   • The accused or opposing party may rebut them by leading evidence.
   • Example: Presumption of dowry death under Section 118.
2. Irrebuttable (Conclusive) Presumptions of Law
   • These do not permit any contrary evidence once conditions are satisfied.
   • The Court must accept the presumed fact as final.
   • Example: Conclusive proof of legitimacy under Section 116, subject only to proof of non-access.

Key Characteristics

• Operate with certainty and uniformity.
• Court has no discretion once statutory conditions are fulfilled.
• Shift the burden of proof as directed by law.

4. Difference Between Presumption of Facts and Presumption of Law (Note Form)(i) Definition

• Presumption of Facts:
  Inferences drawn by the Court from facts or groups of facts based on logic, experience, and probability.
• Presumption of Law:
  Inferences mandated or recognised by law, often without requiring proof in specified situations.

(ii) Position of Presumption

• Presumption of Facts:
  Uncertain and variable; depends on case-specific circumstances.
• Presumption of Law:
  Certain, fixed, and uniform in application.

(iii) Rebuttable or Conclusive Nature

• Presumption of Facts:
  Always rebuttable.
• Presumption of Law:
  May be rebuttable or conclusive depending on statutory language.

(iv) Discretion of the Court

• Presumption of Facts:
  Court has full discretion to presume or not to presume.
• Presumption of Law:
  Court has no discretion; it must apply the presumption once conditions are met.

(v) Source

• Presumption of Facts:
  Derived from natural law, customary practices, and general human experience.
• Presumption of Law:
  Derived from statutes, judicial customs, and established legal principles.

(vi) Examples

• Presumption of Facts:
  Presumption of abetment of suicide by a married woman, presumption from possession of stolen property.
• Presumption of Law:
  Presumption of innocence, presumption of declared death in absentia, presumption of dowry death.

5. Conclusion
Presumptions under Sections 115–123 of the Bharatiya Sakshya Adhiniyam, 2023 play a vital role in the law of evidence. While presumptions of facts allow flexibility and judicial reasoning, presumptions of law ensure certainty, consistency, and protection of public interest. Together, they balance the need for justice with practical realities of proof, ensuring that courts can arrive at truth without imposing unreasonable evidentiary burdens.
If you want, I can also map each section (115–123) under “may presume”, “shall presume”, and “conclusive proof” categories for quick exam revision.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Proof of Good Faith in Transactions Where One Party Is in a Relation of Active Confidence [Section 114]
1. Introduction
The concept of good faith occupies a significant place in transactions involving trust and confidence. According to Black’s Law Dictionary (8th Edition), good faith means honesty in belief or purpose, faithfulness to one’s duty or obligation, observance of reasonable commercial standards of fair dealing, and the absence of any intention to defraud or gain an unconscionable advantage.

Ordinarily, the law presumes that acts are done in good faith. However, this presumption does not operate uniformly in all situations. Where a transaction takes place between parties standing in a fiduciary or confidential relationship, the law adopts a more cautious approach. Section 114 of the Bharatiya Sakshya Adhiniyam, 2023 specifically addresses such situations by shifting the burden of proof.

2. Statutory Provision under Section 114
Section 114 provides that:

• Where a question arises as to the good faith of a transaction between parties,
• and one party stands to the other in a position of active confidence,
• the burden of proving the good faith of the transaction lies on the party who is in the position of active confidence.

Thus, when a dominant party derives benefit from a transaction with a weaker party who has reposed trust in him, the law requires the dominant party to justify the fairness and honesty of the transaction.

3. Illustrations
The section is clarified through illustrations:

1. Advocate–Client Relationship
   Where the good faith of a sale by a client to his advocate is questioned in a suit filed by the client, the advocate must prove that the transaction was entered into in good faith.
2. Parent–Child Relationship
   Where a son who has just attained majority challenges the good faith of a sale made to his father, the father bears the burden of proving that the transaction was bona fide.

4. Scope and Principle Underlying Section 114
The general rule of law is expressed in the maxim “Omnia praesumuntur rite esse acta”, meaning all acts are presumed to have been done rightly and regularly, unless the contrary is shown. Section 114 operates as an exception to this rule.
In transactions involving active confidence, the law presumes the possibility of undue advantage and therefore shifts the burden of proof. The rationale is that the weaker party may not be in an equal bargaining position and may have relied entirely on the honesty and integrity of the dominant party.

5. Meaning of “Active Confidence”The expression active confidence refers to a relationship where:

• One party is duty-bound to protect the interests of the other, and
• The other party reposes trust and reliance on him.

Such relationships are fiduciary in nature. Common examples include:

• Advocate and client
• Doctor and patient
• Parent and child
• Guardian and ward

In these relationships, the dominant party cannot retain benefits arising from a transaction unless he can satisfy the Court that the transaction was fair, voluntary, and made with competent and independent advice.

6. Relation Between Section 114 and Section 16(3) of the Contract Act
Although Section 114 of the Bharatiya Sakshya Adhiniyam and Section 16(3) of the Indian Contract Act deal with similar ideas, they are distinct in scope and application:

1. Nature of Transactions
   • Section 16(3) of the Contract Act applies only to contracts.
   • Section 114 applies to all kinds of transactions, whether contractual or not.
2. Nature of Relationship
   • Section 16(3) uses the expression “position to dominate the will of another”.
   • Section 114 uses the expression “position of active confidence”.
     Section 114 is narrower and applies primarily to fiduciary relationships, similar to situations in loco parentis.
3. Requirement of Unconscionability
   • Under Section 16(3), the burden shifts only if the transaction is shown to be unconscionable.
   • Under Section 114, there is no requirement to prove unconscionability; the burden automatically lies on the dominant party once active confidence is established.

7. Conclusion
​Section 114 of the Bharatiya Sakshya Adhiniyam, 2023 embodies a rule of protective justice. It recognises that transactions between parties in a relationship of trust and confidence are vulnerable to abuse. By placing the burden of proving good faith on the party in a position of dominance, the law seeks to prevent exploitation and ensure fairness. This provision strengthens ethical standards in fiduciary dealings and reinforces judicial scrutiny where imbalance of power exists.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Birth During Marriage – Conclusive Proof of Legitimacy [Section 116]
1. Introduction
Determination of legitimacy and paternity has significant civil, criminal, and social consequences. To protect children from being branded illegitimate and to preserve family stability, the law incorporates a strong presumption regarding the legitimacy of a child born during marriage. Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) embodies this principle by treating birth during marriage as conclusive proof of legitimacy, subject to a narrow and strictly regulated exception.

2. Statutory Provision (Section 116)
A child shall be conclusively presumed to be the legitimate child of a man if:

1. The child is born:
   • During the continuance of a valid marriage, or
   • Within 280 days after dissolution of marriage, provided the mother remains unmarried; and
2. The parties to the marriage had access to each other at the time when the child could have been begotten.

⚠️ Exception:
The presumption does not apply if it can be proved that the parties to the marriage had no access to each other during the relevant period of conception.

3. Illustration
If a husband and wife were married and lived together even briefly, and a child is born during marriage or within 280 days after divorce, the law conclusively presumes legitimacy, notwithstanding doubts or allegations, unless non-access is strictly proved.

4. Scope and Rationale

• Based on the maxim Pater est quem nuptiae demonstrant
  (“The father is he whom the marriage indicates”).
• Reflects public policy to prevent:
  • Bastardisation of children
  • Social stigma
  • Psychological harm
• The presumption operates irrespective of how soon after marriage the child is born.
• Applies only where marriage is valid.

5. Valid Marriage – Requirement

• Section 116 applies only to valid marriages.
• It does not apply to marriages that are:
  • Void ab initio.
• Voidable or irregular marriages remain valid until annulled by a court.
• The section deals only with paternity, not maternity.

6. Nature of Presumption – Conclusive but Qualified

• “Conclusive proof” ordinarily bars any contrary evidence.
• Section 116 itself provides a limited escape route:
  • Proof of non-access.
• Once access is shown, no further evidence (including ordinary rebuttal evidence) is admissible to deny legitimacy.

7. Burden and Standard of Proof

• Burden lies on the party alleging non-access.
• Non-access means absence of opportunity for sexual intercourse, not mere denial of cohabitation.
• Standard of proof:
  • Higher than preponderance of probabilities
  • Lower than proof beyond reasonable doubt
• This heightened standard reflects the law’s concern for child welfare.

8. DNA Evidence and Section 116(a) Traditional Position – Goutam Kundu v State of West Bengal
Key principles:

• Courts cannot order DNA/blood tests as a matter of routine.
• Strong prima facie proof of non-access is mandatory.
• Courts must consider:
  • Risk of branding a child illegitimate
  • Violation of privacy
• No person can be compelled to undergo DNA testing.

(b) Evolving Approach – Nandlal Wasudeo Badwaik v Lata Badwaik
The Supreme Court held:

• Section 116 raises a presumption, not a legal fiction.
• Where scientific evidence (DNA) conclusively establishes paternity:
  • Presumption must yield to truth.
• When truth is known, presumptions lose relevance.
• Interest of justice lies in discovering biological truth.

👉 Scientific proof can override presumption where:

• DNA test is voluntarily undertaken, and
• Results conclusively disprove paternity.

9. Ordering DNA Tests – PrinciplesDipanwita Roy v Ronobroto RoyDNA test may be ordered:

• On the principle of necessity
• Where allegations of infidelity are specific and serious
• Where evidence is directly relevant to relief claimed

If a party refuses:

• Court may draw adverse inference under Section 119 (Illustration h).

10. Test of “Eminent Need”Bhavani Prasad Jena v State Commission for WomenDNA testing:

• Must not be routine
• Allowed only when eminently necessary for justice
• Requires balancing:
  • Right to privacy (Article 21)
  • Court’s duty to ascertain truth

11. Child’s Right to Privacy and LegitimacyMahesh Chand Sharma v State of Rajasthan
Aparna Ajinkya Firodia v Ajinkya Arun FirodiaHeld:

• Children have a right not to have legitimacy questioned frivolously
• DNA tests of children born during valid marriage:
  • Allowed only when strong prima facie case exists
• Legitimacy forms an essential part of right to privacy under Article 21

12. Distinction Between Goutam Kundu and Nandlal Badwaik

• Goutam Kundu:
  • DNA test not permitted without proof of non-access
• Nandlal Badwaik:
  • DNA test conducted with consent
  • Scientific truth prevailed over presumption

👉 No conflict: difference lies in facts and procedural posture.

13. Key Notes (Quick Revision)

• Section 116 protects legitimacy of children.
• Presumption applies during marriage and 280 days post-dissolution.
• Non-access is the only statutory rebuttal.
• DNA tests allowed only:
  • On strong prima facie case
  • On test of eminent need
• Child’s welfare and dignity are paramount.
• Scientific evidence may prevail, but cautiously.

14. Conclusion
Section 116 of the Bharatiya Sakshya Adhiniyam, 2023 represents a careful balance between legal certainty, child welfare, and evolving scientific truth. While the law strongly guards against illegitimacy through conclusive presumption, courts have progressively accommodated DNA evidence where justice so demands. Nonetheless, the guiding principle remains clear: children must not suffer for disputes between adults, and their legitimacy cannot be questioned lightly or routinely.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Chapter on Estoppel (Sections 121–123)

1. IntroductionThere are certain facts which, although relevant, cannot be proved by evidence due to specific legal prohibitions. One such prohibition is based on the doctrine of estoppel. This doctrine lays down that a person cannot approbate and reprobate, cannot blow hot and cold, and cannot affirm a fact at one time and deny it at another. In essence, a person is prevented from contradicting a position which he has previously taken, especially when another person has relied upon it.
This chapter deals exclusively with facts governed by the principle of estoppel. Estoppel operates as a rule of exclusion of evidence under certain circumstances, thereby preventing a party from denying the truth of a representation already made by him. It does not create substantive rights but regulates the admissibility of evidence.
The provisions relating to estoppel under the Bharatiya Sakshya Adhiniyam, 2023 are contained in Sections 121 to 123, which include:

• Section 121 – Estoppel by conduct
• Section 122 – Estoppel of tenant and licensee of person in possession
• Section 123 – Estoppel of acceptor of bill of exchange, bailee, and licensee

The doctrine of estoppel is primarily relevant in civil law, where consistency, fairness, and good faith between parties are essential. It applies in specific legal relationships such as:

• between tenant and landlord, and licensee and licensor (Section 122);
• between acceptor and drawer of a bill of exchange, bailee and bailor, and licensor and licensee (Section 123).

Thus, estoppel does not declare a fact to be true or false but merely prevents a party, under particular circumstances, from leading evidence contrary to his earlier conduct or representation. It is therefore a rule of evidence grounded in justice, equity, and good conscience.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Absence of Consent in Certain Prosecutions for Rape [Section 120]

1. IntroductionIn prosecutions for rape, the question of consent assumes central importance. Recognising the inherent difficulty faced by victims in proving lack of consent, the law provides a statutory presumption in favour of the prosecutrix in certain cases. Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 incorporates this protective presumption by shifting the burden of proof on the accused once specific foundational facts are established.

2. Statutory Provision
Section 120 provides that:
In a prosecution for rape under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023, where:

1. Sexual intercourse by the accused is proved, and
2. The question before the Court is whether such intercourse was without the consent of the woman, and
3. The woman states in her evidence before the Court that she did not consent,

— the Court shall presume that she did not consent.
Explanation:
The term “sexual intercourse” shall have the same meaning as assigned under Section 63 of the Bharatiya Nyaya Sanhita, 2023.

3. Presumption as to Absence of Consent
For the application of Section 120, the following three essential conditions must be satisfied:

• Proof of sexual intercourse between the accused and the prosecutrix;
• Existence of a dispute regarding consent; and
• A categorical statement by the prosecutrix before the Court that she did not consent.

Once these conditions are fulfilled, the law mandates the Court to presume absence of consent, and the burden shifts to the accused to rebut this presumption.

This provision emerged as a corrective response to the controversial decision in Tukaram v. State of Maharashtra (Mathura case), where the absence of physical resistance was wrongly equated with consent. Public outrage following the judgment led to legislative reform, recognising that consent cannot be inferred merely from silence or submission.

In cases of gang rape, the issue of consent is legally irrelevant, and the sole and uncorroborated testimony of the prosecutrix, if reliable, can form the basis of conviction.
The Supreme Court has repeatedly emphasised that rape is not merely a sexual offence but a grave violation of a woman’s bodily integrity, dignity, and privacy.

In Puran Chand v. State of Himachal Pradesh, the Court observed that Section 120 does not require blind acceptance of the prosecutrix’s version. However, where her testimony is supported by surrounding circumstances—such as an attempt to commit suicide—it lends greater credibility to her claim of absence of consent.

4. No Presumption in Cases of False or Consensual RelationshipsThe presumption under Section 120 is not automatic in every case involving sexual relations. Courts have consistently held that false promises or prolonged consensual relationships do not, by themselves, attract the presumption of rape.

In Naim Ahamed v. State (NCT of Delhi), the Court held that:

• Every breach of a promise to marry does not amount to rape;
• The prosecutrix, being a married and mature woman with children, was fully capable of understanding the nature and consequences of her actions;
• The long-standing consensual relationship, knowledge of the accused’s marital status, and delayed complaint negated the allegation of consent obtained under misconception of fact.

The Court concluded that the relationship was consensual, and the presumption under Section 120 was not applicable, leading to the acquittal of the accused.
Similarly, in Pankaj Singh v. State of Haryana (2024), the Supreme Court scrutinised the conduct of the prosecutrix and the surrounding circumstances. It was found that:

• No fiduciary or position of trust existed between the parties;
• The prosecutrix accompanied the accused willingly;
• Evidence showed that they presented themselves as husband and wife at a guest house.

The Court held that Section 120 had no application, as the prosecution failed to prove absence of consent beyond reasonable doubt. It reaffirmed that the accused is not required to prove his innocence unless the statute expressly places such burden upon him.

5. Burden of Proof under Section 120
While Section 120 creates a rebuttable presumption against the accused, it does not dispense with the prosecution’s primary obligation to prove the offence beyond reasonable doubt. The presumption applies only when statutory conditions are satisfied and cannot be invoked mechanically.

6. Conclusion
Section 120 of the Bharatiya Sakshya Adhiniyam, 2023 forms part of Chapter VII, which deals with burden of proof and presumptions. This provision reflects a conscious legislative effort to balance the rights of the accused with the need to protect victims of sexual offences.
While the presumption as to absence of consent strengthens the prosecutrix’s position, courts remain vigilant against misuse of the provision. The fundamental principle of criminal jurisprudence continues to apply--an accused is presumed innocent until proven guilty, and the prosecution must establish guilt beyond reasonable doubt unless the law expressly shifts the burden.

Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-The Court may presume the existence of certain facts [Section 119] 

1. Meaning of Presumptions of Fact
Presumptions of fact are logical and reasonable inferences which a Court draws from ordinary human experience, conduct, and surrounding circumstances. These are also known as natural or material presumptions.

• They are essentially instances of circumstantial evidence.
• The law recognises that proving every fact strictly would make administration of justice impracticable.
• Therefore, Courts are permitted to rely on common sense and human probabilities.
• Natural presumptions are generally rebuttable, and the opposing party may disprove them by leading evidence.

2. Statutory Provision: Section 119(1)Section 119(1) provides that:
The Court may presume the existence of any fact which it thinks likely to have happened, having regard to:

• the common course of natural events,
• human conduct, and
• public and private business,

in relation to the facts of the particular case.
👉 The word “may” signifies discretion and not compulsion.

3. Illustrations under Section 119(1)The Court may presume that:

• (a) A person found in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he explains possession.
• (b) An accomplice is unworthy of credit unless corroborated in material particulars.
• (c) A bill of exchange accepted or endorsed was accepted or endorsed for good consideration.
• (d) A thing or state of things shown to exist recently continues to exist.
• (e) Judicial and official acts have been regularly performed.
• (f) The common course of business has been followed.
• (g) Evidence which could be produced but is not produced would, if produced, be unfavourable to the person withholding it.
• (h) If a person refuses to answer a question which he is not legally compelled to answer, the answer would be unfavourable.
• (i) When a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

4. Section 119(2): Caution in Applying PresumptionsWhile considering whether a presumption should be drawn, the Court must also consider relevant surrounding circumstances, such as:

• A shopkeeper regularly receiving money may innocently possess a marked stolen coin.
• An accomplice of high character may still be reliable.
• Independent corroboration by multiple accused reduces chances of fabrication.
• Influence, floods, exceptional circumstances, postal disruption, privacy concerns, or theft of documents may weaken presumptions.

👉 This ensures presumptions are not applied mechanically.

5. Scope and Nature of Section 119This Section embodies rules of natural justice and common sense.
Key points:

• Presumptions are discretionary, not mandatory.
• Courts must apply their judicial mind.
• Illustrations are not exhaustive, only illustrative.

6. Categories of Presumptions under Section 119Presumptions may arise from:

1. Natural events – e.g., continuity of a state of things (Illustration d)
2. Human conduct – e.g., possession of stolen goods, accomplice testimony (a, b, g, h, i)
3. Public and private business – e.g., consideration in bills, regularity of official acts (c, e, f)

A. Court’s Discretion to Presume Facts

• Courts have wide discretionary powers.
• A presumption may arise where a fact would ordinarily occur.
• The party denying the presumption bears the burden of rebuttal.
• The expression “may” cannot be converted into “must.”

In M. Narsinga Rao v. State of Andhra Pradesh, the Supreme Court held:

• Presumption is an inference drawn from proved facts.
• It represents prudent reasoning, not a final conclusion.
• It indicates shifting of burden of proof until rebutted.

B. Recovery of Stolen Property (Illustration a)Essential ConditionsTo raise this presumption, prosecution must prove:

1. The property is stolen property.
2. Recovery is soon after theft (recent possession).
3. Possession is exclusive.

If possession is remote in time or not exclusive, presumption weakens.
Extension to Graver Offences

• In Tulsiram Kanu v. State, the presumption was extended to robbery and murder if part of the same transaction.
• In Limbaji v. State of Maharashtra, recovery of incriminating articles soon after the incident justified presumption of guilt.
• In Mukund alias Kundu Mishra v. State of M.P., possession of stolen goods supported presumption of robbery as well as murder.

Key Principles:

• Presumptions are rebuttable.
• Burden shifts once presumption is drawn.
• Courts must apply common sense and caution.

C. Presumption regarding Accomplice Testimony (Illustration b)An accomplice is presumed unreliable unless corroborated in material particulars.

• Must be read with Section 138 BSA, which makes accomplice a competent witness.
• Under BSA, 2023, corroboration is treated more strictly than under the old Act.

Meaning of Accomplice

• A guilty associate or partner in crime.
• Includes principals, accessories, abettors, and receivers of stolen goods.
• Mere knowledge of crime is insufficient.

Rationale

• Accomplice may lie to shift blame or gain pardon.
• Hence, corroboration is required as a rule of prudence.

In Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, it was held:

• Conviction based solely on accomplice evidence is legal but unsafe without corroboration.

Rules of Corroboration

• Not every detail needs confirmation.
• Evidence must connect accused with crime.
• Must come from independent source.
• May be circumstantial.

D. Presumption as to Bill of Exchange (Illustration c)

• Bills and promissory notes are presumed to be for valuable consideration.
• Presumption weakens if acceptor is young, ignorant, or under influence of drawer.
• Absence of proof of consideration rebuts presumption.

E. Presumption of Continuity (Illustration d)

• A state of affairs once proved is presumed to continue.
• Court must consider possible interruptions (e.g., floods).
• Presumption is discretionary.

F. Presumption of Regularity of Judicial and Official Acts (Illustration e)

• Official and judicial acts are presumed to be regularly performed.
• Exceptional circumstances may rebut the presumption.
• Example: Dispatch of samples by Food Inspector.

G. Presumption from Common Course of Business (Illustration f)

• Business transactions are presumed to follow normal routine.
• Letters properly posted are presumed delivered.
• Postal disruptions may rebut presumption.

Presumption of Marriage

• Long cohabitation raises strong presumption of marriage.
• Cases: Tulsa v. Durghatiya, Kattukandi Edathil Krishnan v. Valsan
• Burden lies heavily on person denying marriage.

H. Presumption from Withholding Evidence (Illustration g)

• Non-production of available evidence permits adverse inference.
• Court must consider reasons such as privacy or reputation.

In Suresh v. State of Karnataka, it was held:

• Adverse inference cannot be drawn unless prosecution first establishes foundational facts like presence of accused.

I. Refusal to Answer (Illustration h)

• If a person refuses to answer a non-compulsory question, Court may presume the answer would be unfavourable.
• But Court must consider unrelated potential loss.

J. Presumption of Discharge of Debt (Illustration i)

• When debt instrument is in debtor’s possession, debt is presumed discharged.
• Creditor must rebut this presumption.
• Presumption may fail if document was stolen.

K. Illustrations
Not Exhaustive
​The illustrations under Section 119 are examples only. Courts may draw other presumptions based on:

• human conduct,
• natural events, and
• public and private business practices.