 Good evening one and all and it's always a pleasure connecting with Lex Legal, Lex Study Circle and today we have Suresh from the Lex Study Circle and we have been trying with Justice P. N. Prakash to share his knowledge because we had been keeping on receiving request to the effect that if one can make understand the criminal jurisprudence. They couldn't be a better person than Justice P. N. Prakash, a former judge from Madras Cycle. Since they say since Naam Hikap here, I will not introduce much, I will just ask Mr. Suresh to give a brief introduction and then we will ask Justice Prakash to share his insights on proof and presumptions under law. Good evening one and all, thank you for calling me to say a few words about Mr. Prakash. Good evening sir. I have been with him during his two or three days and can at least be seeing him as a judge also and now he is retired and as a Study Circle we have been doing this video conference sessions many during this COVID period and nice that beyond law because he is continuing that. Thank you once again for joining us also in the meeting. Over to you sir. Good evening Vikas and all this with their hope to this session. I went on a sabbatical and I decided not to return to law but you see Vikas was so persistent he has been behind me at least for the last three months very consistently he would call me every week and say sir we need you to come and give a thing. I told Vikas I have left law, I left it on 11 January 2023 and thereafter I said goodbye to law and I have no more nothing to do with what I said but you know it doesn't happen like that. I was forced to come back to teaching because there was a demand from the lawyers here for cracking the civil justice examination which is down the corner here. So once I accepted to teach them I couldn't refuse to be cast. So that's why I'm here. So good evening. It's a very nice gathering I suppose. We'll get let's get to business. I hope you all are having the Indian evidence that barrack with you because this is what I told Vikas to inform the participants that they should have a barrack. Hello. Vikas you can unmute yourself. Yeah, I thought my team was having the control. Yes sir everybody will be having the barrack and the people who are on the YouTube live and Instagram they should also have the barrack with them. The whole of their capacity rest will come on the YouTube only now. I know suddenly what happened was there it hanged. So I thought that there was some technical issue. But I was visible and audible during the call. No problem. Now my dear friends, see I'm not going to bore you with the ad director etc. But I just wanted you to have it as a mere referral point. Today the topic is proof and presumptions in law. See, before going into the subject, it's necessary for me to tell a small historical aspect with all this. See proof of a fact and presumptions in law is through the Indian evidence act. So you need to know a little history of the law of evidence in India. For that I would like to take you back to 1773 when the Regulating Act came and it was Warren Hastings idea to establish company quotes. You were aware that the British, the sovereign institute constituted a Supreme Court in Calcutta, Bombay and Madras in the towns of Bombay, Madras and Calcutta. But in the official area where the company was administering, you may be aware that after the Battle of Blasey, the Divani was transferred to the East India Company and they started administering the various places in the North India. So there was so much of chaos that Warren Hastings thought that some courts should have to be established to deal with the day to day problems of the people. That is how company courts were established in all these places outside of the town of Calcutta. Inside the town of Calcutta, you had the Supreme Court of Calcutta which was functioning. The company courts were being manned by ordinary civil servants of the company. The irony is in this country, in all other countries, first law will come and courts will come. In our country, first courts came and then only law came. So as the courts started administering justice, they did not know which law to administer. They were asking for the Hindus, they were asking the Pandits and they were administering whatever the Pandits suggested as the Hindu law. For the Muslims, they were asking the Moulvis and the Ghazis and whatever they suggested, these fellows were administering that. So in the confusion of about maybe say about 100 years, what they found was, they found a peculiar thing. Our people would use the company courts and get into the witness box and speak everything and everything in the courts because our Ghazis are really very imaginative people, very, very imaginative. So their belief systems would border on or would think on mysticism, magic, for example, supposing if there is a partition dispute or something, they would get into the witness box and say, my grandfather came in my dream and he told me son, this entire share is worse to the exclusions of your brother. You only should take the share and that is why you see, when my grandfather told me in my dream and for that he would bring some 10 witnesses who would also say that in their dreams also his grandfather came and told that this property should be given. This is the sort of thing which our fellow and if there is a crime is to be detected, our people would use some of the magic things, something on a beetle leaf, they will put on black thing, try to find out who the person who had tipped the property. All sorts of things our people used to get into the witness box and speak, irrelevantly. In every case you will find 50 witnesses on this side and 50 witnesses on that side. This is because everybody will get witnesses to support their stand and witnesses will get into the witness box and speak anything and everything. It was a very chaotic situation it was. So the necessity to have a codified law of evidence was felt by the commissioners 1853. If you remember Macaulay comes here and then 1855 that time they say that yes, there should have to be a law to codified law for India. Otherwise it would be very difficult to administer justice in India because capricious thing it would be so very arbitrary. So the codified laws started coming with Macaulay framing the Indian Penal Code and you will find in the Indian Penal Code also. There are certain sections 33, 34, 35, 36, 37 and all where law of evidence should be discussed there. Evidentiary aspects should be there because there was no substantive law of evidence then. So evidentiary values 34 common intention, cooperation all these are evidence rules of evidence. They are not punishing sections though you will find them in the Indian Penal Code. The Indian Penal Code is not punishing sections they have rules of evidence it is there. Then of course Macaulay's code gets posted to the back burner for quite some time because there are a lot of opposition from the Englishmen themselves. They didn't want the code. Sir the first chief justice of the last chief justice of Supreme Court of Calcutta, Barnes Peacock and the first chief justice of the High Court of Mineta. You may be aware that the Supreme Court of Calcutta becomes High Court of Calcutta. The Supreme Court of Madras becomes the High Court of Madras. The Supreme Court of Bombay becomes High Court of Bombay. So all those judges become the High Court. So Sir Barnes Peacock will revive the Indian Penal Code that was drafted by Macaulay and Kip and that is how 1861 this code comes. So 1861 also we did not have an evidence law but you would find the principles are written at the 1861 code of criminal procedure. See whenever there is a substantive law which defines the rights and liabilities. For example Indian Penal Codes says this is the offence, this is the punishment and how do you implement that substantive provision? You need a procedural code and the procedural code is 1861 code of criminal procedure under which the criminal codes were established and the criminal codes were asked to administer justice in accordance with the code of criminal procedure implementing the substantive law. The substantive law being Indian Penal Code. So the code started implementing 1861 but if you see the 1861 code you will find the confession to police officer which is the present 25, 26, 27 all that will be there in the 1861 code of criminal procedure. Because it contained both procedural aspects as well as evidential aspects. As I told you, Indian Penal Code also has certain evidential aspects namely common intention, cooperation, all those sections, all those journal sections speak about evidential aspects. So 1861 what happened was the code of criminal procedure also had evidential aspects as well it had the procedure for trial, procedure for investigation, etc. Then comes Sir James Stevens, he comes as a law member and then that man's genius is the Indian Penal Indian Evidence Secretary in 1972 is that these people are all, please understand they are all bentomites. You know a bentomite is a person who believes that everything must be purified and they must not allow arbitrariness in judicial proceedings. Whereas in England it is, nothing is purified, everything is judge made law, the law of evidence in England is a judge made law. You have a law of evidence only recently, if my memory serves me right, the PAS, P-A-C Act came only 1985, 1985 by the way. So 1872 they didn't have any evidence of the rules of evidence, the judges applied the rules of evidence which are fairness, equity and another thing is culturally English people speak very less. English people speak so very less that you know it's very difficult to, you go to England and you will find people just silently going in an electric train or in a, I think they wouldn't find them very boisterous like Americans or Indians. So they speak very less and to the point they will speak, they get to the witness box, they will speak up to the point and that's it. On the contrary I told you our people are very boisterous, very gregarious people, they are all their imagination, they are lit goose in the witness box, they will see all sorts of things and this has to be, this had to be regulated by law. Therefore the Indian evidence that is brought in and the fundamental basic of the Indian evidence that is relevancy and admissibility. So keep this in mind, this you must have been taught in the law college itself, relevancy and admissibility. So relevancy sections, this part one sections in the Indian evidence that is relevancy section, what is relevant etc. The admissibility sections starts with the part two and all, presumptions also come at the part two. So this is broadly the framework of the Indian evidence that which is be applied in the court of law. Please understand, don't get confused with its application outside the court of law, outside the court of law for the purpose of investigation etc. The court of criminal procedure that I think and 1861 criminal procedure is repeated and 1898 criminal procedure comes because I told you 1872 this act comes and this act takes away quite a lot of provision from the 1861 court regarding inner disability of conflict etc. in Portugal 1872 court, then 1898 court is revised and 1861 court is given, there is one more court comes in the interim, let's not get worried about that. Then 1898 court comes, 1898 court comes to stake in our country till 1973. In 1973 you are aware that the present court of criminal procedure in 1970 came to be repealing the 1898 court. This is broadly the court of criminal procedure and evidence that is 1872 we are managing with it. Of course there is two amendments here and there which we have made about which I will just make a pass. Now proof and presumptions, so the concept of proof, what is the proof? Simple, see court is a system which deals with the past tense action, is it not? For a debt, for a promissory note given last year, if there is going to be demand, the court will decide whether the demand is correct or not etc. For a murder that is committed earlier, the judge decide whether this is below the murder, for a cheating that is committed earlier, the judge decide whether the cheating was done by him. So the past tense action is what the judicial system decides. Unlike the executor who decide on today, today what has to be done? What action has to be taken? If there is going to be a mob thing, should there be a firing? Should there be 144 clamp? Should there be preventive arrest? They take action in presently to do this and legislature always thinks in future how India should be next 10 years, what should be the laws of India. So basically past tense is judiciary, present tense is executable, future tense is the legislature. So we are dealing with the past tense action. So somebody has to come and tell before a judge, sir this is exactly what happened. And therefore I have a right. I am asserting my right. He is liable to pay me this. So you decide about this. That is why a person comes to the court. For that you must read the small definition of fact and issue. I will not trouble you. Fact and issue, the expression fact and issue means and includes any fact from which either by itself or in connection with other facts. The existence comma, non-existence comma, nature or extent of any right comma, liability or disability, asserted or denied in any suit or proceeding necessarily follows. So you must provide the section so beautifully that is any suit either you are right, liability or disability. These things is what a person comes to the court to be determined as a fact and issue. It's very simple, my dear. In several cases you frame the issues, is it not? In several cases, the plaintiff's file, the retention from this file, the judge reads it and waves the issues. That is issues. That's exactly issues. In criminal cases, the charges. What is the charge against you, sir? On this date, this date 30th of January, so on and so on. So you, with the previous motive, so on and so on. So took a knife and stabbed, so on and so on and so on. So costing is instantaneous. Whatever it is. So the charge is asserting a liability on you. It asserts a liability that you are liable for having ordered this file liability. So you come to the court with this to determine the fact and issue. And evidence is an instrument. It is a material through which you established these facts before a court, before a judge who was not present when the murder took place. So you understand? The judge was not present. You're trying to reconstruct the past transaction to a judicial officer in the court of law and saying that, asserting a liability of the accused, that the accused sitting standing there is liable for having raped this woman or cheating this thing or murdering this person or whatever it is. So this is where the court mechanism comes. So the court mechanism is required to determine this right or liability. For that determination, evidence is there. Evidence. So now, what is proof? To understand the concept of proof, you must sink into your system, the definition of the word proof. I always felt that, you know, if once we teach our law college students, the fundamentals of the word prove. And if it gets into their system, whether it is the proved, disproved and not proved, then 50% of the problems will be solved. Today, there is so much of confusion in the minds of lawyers and judges because of the fact that they have not really understood what they are required to prove in the court of law. That is the problem. So I will just take a little time. If anybody has evidence that you may take it and read and slowly along with me, take time to read the definition of the word prove. Prove. A fact is said to be proved when here you must be, what is required to be proved is fact. You are required to prove a fact. You are not required to prove the truth. Please understand, we are all getting confused about proof of truth. Indian evidence said the courts are not required but truth is very, very different. An Indian idea of truth is absolute truth and relative truth. You will see absolute truth is Brahman. Relative truth is what Maya, all these sort of philosophies Indians will tell. So you will get confused if you go to the concept of truth. What you are required to prove is fact. What is a fact? Fact is nothing but what the five senses perceive. You touch, you see, you smell, you taste, you hear. These are things fact. Truth and fact are two different facets. I will demonstrate it in no time for you. It is a fact that sun rises in the east and sets in the west. Simple. But it is not the truth. Where does the sun rise in the east and rise in the west? Sun remains there itself. The earth rotates and therefore morning sunrise happens, night sunset happens. But factually your eyes perceive the sun rising from the horizon, going up at 12 o'clock in the afternoon and then coming down at 5 o'clock in the evening on the western side. Is it not? You stand in your terrace, you keep watching it with your eyes. It just goes up and goes back. So factually what you will say, sun rises in the east and sets in the west. But truthfully what you will say, the earth does not rise. It remains there. So you don't get confused about truth and not. Don't waste your time trying to find truth and not. You will never ever be able to find the truth in the digital system, especially with human affairs. It will not be an easy task to find truth. So the problem with our people is we try to, we want to know the truth and who wants to. You can't know the truth at all. You are not God. Your senses are only so limited that you can't even perceive anything beyond 100 meters. So where is you to perceive? You are not even able to perceive the fact that the world is rotating. You are able to perceive the thing that only sun is rising and visiting. So don't waste your time trying to find truth and not. Stick to fact. Your fact is said to be proved when considering the matter is very important. Stephens has used the expression matters before it and not the evidence before it. The expression matters in English dictionary is something larger than the expression evidence because evidence is defined under the Indian Evidence Act. Matters is left to the dictionary meaning. It is left to the judge to look at the case from all standpoint, from circumstantial standpoint. Circumstances will speak. They are all matters to be decided. So from the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man, here the expression uses a prudent man, not an intelligent man, not Albert Einstein or Swami Vivekananda, not a down quick sort either. So you and I are ordinary people, the man in the market place, ordinary market place, a common Indian with a common sense, he is a prudent man. Prudent man under the circumstances of the particular case, under the circumstances of the particular case, that is why I always used to say that in criminal law, law of precedence has no relevance at all because just because in that case, the Supreme Court disbelieved with the testimony of the police officer with regard to the recovery of the knife, that cannot be cited as the preceded in this case for the recovery of a knife in another case. On that facts of that particular case, the Supreme Court would have held that we are not believing the recovery and would have acquitted that case. So law of precedence has no real value in criminal jurisprudence because under the circumstances of the particular case, that's what this is different intelligence to act upon the supposition that it exists. So you act upon the supposition that in the facts in particular of the particular case, the fact is said to be proved from the matters before the court a prudent man. The whole problem is the prudent man test is not there with us at all. We are so confused in our mind that we either think that we are King Vikramaditya or we are nothing. You are nothing. You are not a Vikramaditya either. You are nothing. You are an ordinary person. Apply your common sense. Don't keep your common sense in cold storage. That is the biggest problem. When you look at a certain thing with very less common sense, you tend to get confused about the whole thing. So this word proved is proof of a fact. So of a fact. The proof of about 10 facts will lead to an inference that a particular person is guilty of the offense or not guilty of the offense. Simple. Proof of 10 facts or 10 facts or 20 facts or 15 facts. So what you are required to look into is proof of facts, whether a fact has been proved, b fact has been proved, c fact has been proved. For example, after the murder. See, eyewitness is there. Eyewitness seeing is a thing. But the fact that eyewitness saw the murder by itself could not mean that it is a murder. It would be something different. It could be culpable. We say not amounting to murder. Earlier that fellow would have had some good reasons to take the knife and attack her. So proof of fact is that the fact has to be perceived by the licenses and the fact has to be shown to the court. And from the matters before the court, the prudent man appraises the fact and says, yes, this fact has been proved. The recovery has been proved. The fact that there was blood stain in their thing and the plus sign and then the cloth was sent to the forensic science laboratory and it comes with a positive A positive that has been proved. So then the post-automation shows that so many injuries are in the body. The fact that he was attacked and the death was on account of his attack is proved. Then whether was this the attacker ultimately committed that could be correct from the other evidence. You could either hold to that. This man, for example, you say that the evidence that the murder has taken place in the courtroom where only the husband and wife are there. Why is lying there? It means you come to an intelligent inference. But if not for that fellow who else would have murdered, unless that person shows that yes, I was not murdered or the burden of proof shifts there. So there comes the burden of proof and other aspects. So essentially what I am trying to drive home is try to understand the expression proved and disproved and not proved. Because that will be for you to understand that only then you will be able to appreciate presumptions. Presumptions, which I am going to come a little later, you will be able to appreciate presumptions only if you are able to understand what proof is. So relevancy and admissibility, I told you that this entire evidence set is based on relevancy and admissibility. And whatever is relevant is not admissible and whatever admissible is not relevant. I think this is a fundamental thing which I hope the audience will be aware of, maybe to help some of them. I would say that, see for example, a communication to the advocate, a communication by one spouse to another spouse would be relevant out of the relevant permissions for a fine. Now, I told you my dear friends that the system of our people getting into the witness box and speaking all sorts of things, how it is getting controlled, I will tell you. The control switches in section 5 of the witness act, the control switch in section 5. Section 5 says the evidence may be given in any suit or proceeding. See here suit is a civil one, proceeding or criminal will come. Earlier also when I told you fact in issue, the criminal proceeding is criminal will come within the ambit of the proceeding. Given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are here and after declared to be irrelevant. So, of such other facts as are here and after declared to be irrelevant. In chapter 2, I am going to, since Stephen says I am going to tell what are all the relevant facts. Fact in issue is supposing a person is going to say that I saw the murder, it was done. He speaks directly to the murder. On the contrary, if a person is going to get a witness box and say that I analyzed the garments of the disease and the garments of the accused and found the blood stain of the disease on this thing. So, he is a relevant fact. The relevancy of facts will come from this section 55 down 5 from 5 section 5 down onwards from 6 onwards 11 to start. The catch word is my dear friends and of such other facts as are here and after declared relevant and of no others. See the end of no others is the catch expression. Boss, you get into the witness box and you don't talk nonsense in the witness box. We don't want your grandfather to come in your dream and tell you that yes, he came and told me the property belongs to you or you wrote. We don't want your priest, your magician to say that yes, I saw in the magical screen this fellow had taken the money and on all the nonsense and all. You are not going to listen to it unless they fit into any of these provisions from 6 onwards. So, this is the catch word and no others and of no others. That is why you see Indian judges after the evidence act discussed speak relevantly. Don't speak whatever your imagination. There is no scope for your imagination. So, speak relevant facts. So, now I told you whatever is relevant, it doesn't mean that it's admissible. See for example, the communication to a lawyer that comes in communicates. It is relevant, absolutely relevant. It could be relevant as not a section 6 or the other side. It could get relevant from 8 or 11 side. So many sections on that you should get relevant, become relevant and true. But it is inadmissible in the fourth paragraph. Privileged communication. It is admissible, need not be relevant. Simple. You put the witness to the witness box and cross examine the witness. You ask irrelevant questions. That says, why are you putting irrelevant questions? You say, no, I am testing the veracity of this witness. I want to test whether this witness is a speech speaking witness or a life speaking witness. In order to test its veracity, I am forced to put this relevant questions. So, though the answers given by the witness may not fall within the relevancy from section 6 down on words. It is admissible in evidence because testing the veracity. So, in several situations, admissibility and relevancy get interchanged. For example, confession to police officer is irrelevant. It has made relevant and inadmissible. Simple and straight. There cannot be the confession to police officer. Section 25 makes it totally irrelevant. It is not relevant and it is not admissible. So, relevancy and admissibility are used very frequently and you would have to understand that. So, here in section 6, the first part deals with relevancy and the second part it deals with proof, admissibility. All right. Now, I am not going to go into the other because with the topic before me, it is not about relevancy or fact. This I am touching because to make you understand the concept of proof. Now, proof, how do you prove it? Evidence access, proof is, by oral evidence, are we talking about evidence? Simple. Oral evidences, a person who had seen something, heard something, who smelled something, or the five senses, whatever he had perceived to his five senses could get into the witness box and say, yes, I was in my flat. I heard her seeking and saying, don't kill me, don't kill me. With a mouth morrow, with a mouth morrow, she says. I heard the voice, I heard the voice from a neighbor's flat. Then I just opened the door. I saw her husband running and going. That's all. So, what he heard is, he heard at 2 o'clock, the noise of his neighbor's lady. They all the fight between them. They were fighting. There was vessels being thrown here and there. Then I just came out to see what happened. So, this fellow running and going. That's all. So, he tells the court what he heard. He tells the court what he saw. He's a blind person. He's going to tell the court what he heard. Simple as that. I heard this. I felt this. I just shook hands with them. When I shook hands with them, I knew it was not Prakash. It was an imposter who was introducing. I held the Prakash sands earlier and I could feel Prakash sands. It was not Prakash. So, his feeling that he had held Prakash sands earlier and had understood that grip. Subsequently, the imposter said, yes, I am Prakash. He said, no, this is not Prakash. It is his feeling about which he can come to the court. In a given case. These are illustrations. Don't get the thing illustrated. I tried to draw on the point of illustrations. So, illustratively, a blind person could come and give evidence of what this sense of touch, his sense of hearing, his sense of smelling. I smelled LPG gas coming from out of the flat. Blind man. Yes. And that's it. You go inside that girl lady is burnt and dead. So, it gives an impression that yes, there is a man who smelled LPG. By then the police could come and think that LPG could get dissolved in the air and you may not have that smell. Till the court cases happen. That's stupid. But the fact that this blind neighbor smelled LPG is an relevant fact. It's an relevant fact. So, all relevant facts put together and prove from the standpoint of the word proof. You test the facts and come to an intelligent inference about the liability that is asserted in a given case. All right. So, then documentary evidence. So, documentary evidence is the knife, the material objects are also brought into the fold of documentary evidence. Document. It is a document that is exhibited in court. This is what the witness identifies. Yes. This is the knife which I think. So, on witnesses, on proof of witnesses, on proof of witnesses, the standard case is Badiwe Luthevatsky's. Always bear in mind Badiwe Luthevatsky's, Vivian Bose's standard thing. There, Vivian Bose will say there are three class of witnesses, wholly reliable, partly reliable, partly non-reliable, wholly unreliable. So, the first category of a witness, he could be accepted, a wholly reliable witness, could be accepted without anything corroboration, without anything further. You accept the testimony as proof of that fact. As a proof, he doesn't require any corroboration. Partly reliable, partly unreliable is a class of witness who requires corroboration. Accomplice. Accomplice is partly reliable, partly non-reliable. So, you look out for a corroboration, totally unreliable. False speaking witness, no corroboration. His testimony has to be rejected totally. So, classes of witnesses are broadly three, one, two, and three, and to appreciate their evidence, you have certain principles. What is the principle? The principle is, falses and omnibus will not apply to India. I've given this falsely, it's already there in YouTube, in a big lecture which I've given on falses. But for the purpose of this proof, I would say that in Indian context, a witness, the court can, in England, if a witness is found to speak light on a particular fact. If he were to speak about five facts and if he's found to have spoken light with the court on one fact, he will be disbelieved with respect to other facts also because they will, they would not want a liar. They would not want to rely upon liars. If we apply the yardstick to India, you no case will get sustained because our people's imagination is so much that many at times they will speak something believing it to be true, firmly true, firmly true. So, you can't blame them. Their presence of perception would make them believe a certain thing to be true. So, falses and you know, falses and omnibus cannot be applied. You remove that and assess the witness in the intrinsic world. If you believe in two facts, fine. No problem. If there's some corroboration for those two facts, you hold that those two facts are being proved. You don't believe the same witness respect of three other facts. No problem. Don't believe him. The two facts that you believe in to that extent is his testimony is worthy of acceptance. Such a person does not obtain in other things. Take into the cultural aspect. This is what we are consistently we don't apply this thing. Then what's the quality of proof? Quality of proof is the irony today in our system is we have imported the proof beyond reasonable doubt quality into our system. Proof beyond reasonable doubt. How did it come? It came into our system from Woolmington 1935 House of Lords page All England reported. 1935 All England reports page one. Woolmington's case. That is where the query that the web of the criminal jurors put in there that you will find this quoted in all the most of Supreme Court has been saying the web of the justice goes from there that the innocent should not be convicted and there should be golden rule of evidence is proof beyond reasonable doubt. Proof beyond reasonable doubt. This concept of proof beyond reasonable doubt does not find a place anywhere in the audience. The quality of proof is as defined in the word proved. So the quality of proof is what the development was from the matters before it or the supposition that a prudent man believes it to exist. That's all. Where is beyond doubt all these are all common law principles where there is no evidence act in England in 1935. So the court evolved this the House of Lords evolved this principle in but again the Privy Council in 1973 Jay Sena. Jay Sena's case came from Ceylon. Ceylon also has the same Indian evidence act. Ceylon's evidence act is in Perry, so there's a Privy Council said in the House of Lords business we will go with the statute law where the proof beyond reasonable doubt is not there. But then what had happened was India and our Supreme Court considered both Jay Sena and Wilmington and stated that in criminal cases it is proof beyond reasonable doubt in civil cases pre-ponderance of probability. These are all judgment laws how did it come? It all judgment laws. Evidence act is common to both civil and criminal if a civil case is there the fact has to be proved only in accordance with the word proved in the evidence act. Criminal case the fact has to be proved only same in the word there is no scope for preponderance of probability and proof beyond reasonable doubt. These are all judge made court made laws and for that I can just refer you to this 2004 Supreme Court you take Venkatachala Gounder case go into net and Venkatachala Gounder case 2004 Supreme Court. The Supreme Court have discussed about this thing. Then of course P.M. Krishnalal Krishnalal's case only we will discuss Jay Sena and Wilmington and say that no no no even though Jay Sena has stated like that this principle of proof beyond reasonable doubt has come into our system it should not go out of our system so proof beyond reasonable doubt is come to stay in the system so it becomes a chancellor's jurisdiction. What is proof beyond reasonable doubt for one jet need not be proof beyond reasonable doubt for another jet so that's a different issue totally so this essential aspect of proof is proof beyond reasonable doubt in criminal cases proof preponderance of probability in civil cases now presumptions in this presumption you know what presumptions come presumption it comes to the part 2 see present proof I told you proof is earlier through the medium of oral and documentary to establish the proof presumptions are 3 categories may presume shall presume conclusive proof very very simple may presume, shall presume and conclusive proof for broadly I will tell you conclusive proof is something which is concluded one one two of the evidence act would say that the birth of a child within DOS and so it's conclusive proof you cannot accuse evidence and bastardize the child one one two of the evidence act but this doesn't what a conclusive legitimacy of a child is one one two but what has happened this Supreme Court has watered down one one two the DNA case that when the DNA when the Stephens had written this DNA was not there so DNA comes and says okay we can find the paternity with 100% accuracy so when DNA scientific evidence is there to still say that no no no we cannot question the paternity with suspending evidence it may not be correct it may not be just so Supreme Court has watered down this 112 may presume and shall presume very interesting you will find that shall presume if you take the evidence act I will tell you shall presume you will find from 89 from 79 to 130 89 and 130 B 79 to 18 and 130 shall presume shall presume means simple it's a direction of law it's a legal presumption it's a direction of law says you have to presume and such a presumption can be disproved so now you take definition of the word shall presume whenever it is directed by this act whenever that is act then the court shall presume a fact it shall regard that fact as proved unless and until it is disproved so earlier I reviewed the word definition of the word proved disproved is also very imperimaterious thing the proof how a fact is disproved so shall presumption are presumptions dictates of mandate in Torrem this is Katie Thomas it is a proof on the dictates of law losses yes you shall presume the court has no other option it has to presume then if the presumption is against x person means that the x person should have to disprove the presumption alright so the person in whose favor the presumption act need not prove this fact this fact need not be because the law directs of in every other case 130 be this women dying within presumption as the dowry death you will find when the question is whether a person has committed the dowry death of a man and it is shown that soon before a death such women had 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 so what will the prosecution require to prove the prosecution will be required to prove that a women was subjected to cruelty or harassment in connection with any demand for dowry okay in connection with any demand for dowry and if she dies whether it is suicide or a thing there shall be a presumption that such person had caused the dowry death simple what the prosecution will prove is that the person had committed dowry death of a man and it is shown that soon before her death so the expression soon before is very elastic it is not necessary that it is one day one day before the death depending upon facts and so it was soon before has been interpreted such women had been subjected by such person to cruelty or harassment what should be the cruelty and harassment is for in connection with any demand for dowry and what is the demand for dowry they were defined under the dowry provision this one small presumption I am taking and explaining to you this is a presumption in law in terorim which the court has to presume if those facts are true what are the facts are true whether the death of the women was a homicide or a suicide doesn't matter it could be a suicide or a homicide alright unless it is not a natural death so homicide or suicide and it was within 7 years of marriage then it is because the IPC 304 B because I am not reading the evidence act the main section for dowry death you will find under the indian bill court you may remember that 304 B capital B IPC 113 A 113 B evidence act all sister provisions which came in 1983 so 304 capital B dowry death is defined what dowry death is rule of evidences if these facts are true 7 years marriage her death was not a natural death she was subjected to cruelty or harassment in connection with dowry that is all then the court shall presume that the accused has committed dowry death then the burden shifts on that accused to disprove this fact how do you disprove this fact disprove the fact by through the definition of the word disprove here a fact is said to be disproved when after considering the matters before it the court either believes that it does not exist or considers as the non-existence so probable that the prudent man ought under the circumstance of a particular case to act upon the supposition that it does not exist so you see in prude exist exist will come not not not will come in not so this is presumption in law like that there are other presumptions in the NDP there are two presumptions section 35 and 54 presumption is there in special laws these are all presumptions special laws because of paucity of time I don't want to go into those special laws and speak about I just confine myself to the presumptions in the evidence act itself then the may presumption see if you say may presumption mean a discretion is given to the judge to call for proof of this fact or you can say I'll presume this 114 evidence act see my dear friends 114 evidence act is a very important provision which has to be read with the definition of the word prune and you must this is once again a common sense provision 114 evidence act is a common sense provision what does 114 say 114 is a very beautifully worded section 114 the court may presume the existence may presume whereas I when I read 113d shall presume even in 113d it may presume don't worry about it the court may presume the existence of any fact which it thinks likely to happen regard being had to the common cause of natural events human conduct and public and private business in their relation to the facts of the particular case facts of the particular see the particular case is very important is very important so in that particular case this could have happened means the court may presume and the court may call for proof of this fact in circumstances in certain circumstances the creation is vested with the exception the illustrations given in section 114 is not exhausted please understand the illustration given in section 114 is not exhausted illustrations there are so many things you don't may presume there are so many notorious facts can be judicially taken if you fall back upon judicial notice you will find section 56 no fact of which court will take judicial notice need not be proved facts of which judicial notice facts of which court must take judicial notice these are all must so it is not it doesn't mean the court can take judicial notice of whatever the facts stated in section 57 there are certain notorious the fact that in the year 2015 in Madras in which Madras was Maroon the fact that tsunami struck Madras in 2003 whatever it is is all facts which you don't have to be proved at all so these are all facts we need not be proved nor do these facts and 114 is a presumption made presumption where court may presume about the existence of this applying common sense for example you would have got into the for example common sense application you get into a train you would have bought the ticket the court may presume unless it is shown that you was a traveler without ticket this presumption may be required in a mass accident case somebody may say you got into the train where is the proof that you would have bought the ticket sorry sir in that many in all the things my ticket lost the ticket whatever it is the court may often have seen the fact in a certain particular case we may presume in the course of ordinary events in the course of ordinary things the traveler would have purchased the tickets and got into the train this discretion is available when they bought so may presume presumption on facts shall presume presumption dictated by law over which the distinction is very may look very very market distinction between these two genres of presumptions may presume and shall presume and of course in special enactments as I told you in NDP sector north there will be an element there will be a presumption see what had happened to us very interesting the customs act was being implemented those days in Bombay these carriers used to bring silver ingots from Karachi and when the carrier is caught he will say that I don't know that my friend gave this suitcase he said give it to this person in Bombay I brought it to Bombay because it contained silver ingots it will be silver ingots or silver gold or whatever it is smuggling cases used to happen act of non-fascist regime is a principle that applies to criminal law so in cases relating to custody of offending articles like gold, smuggle to gold silver, opm ganja whatever it is mere custody is not the vision there will be an element of consciousness in position of it because act as non-fascist regime means when there is no ministry I didn't know I am merely having custody so how could you put me in jail was it different than fellows who are escaping then there was a law commission report on economic offences loss I think it was this Gajendra Ghatkar's report that report would have given thing that these fellows are coming out easily shift the presumption of minstrelia you shall be presumed to have the guilty mind but the fact that you did not have the guilty mind should be proved by you beyond reasonable doubt this was recommended by the 72 73 law commission report and customs act was amended center like says act was amended all his acts were amended to include a minstrelia presumption 138 capital A of customs act is a minstrelia presumption an NDPS act was formulated that 138 A will come as section 35 of the NDPS act where the minstrelia is that if custody is established then you had the necessary minstrelia is presumed and you shall prove the fact beyond reasonable doubt and not by prepontance of probability so this is broadly my dear friends is the concept of proof and presumptions and I am glad that I hope that this short because these are all subjects over which I keep talking for days on end there is so much of materials to talk about but I think for the present these fundamentals of this proof and presumptions would help the listeners to use the distinction with assumption and presumption assumption is taking it for granted after 10 without people because English is not all language so assumption is taking it for granted and presumption is taking the liberty to assume presumption is the law gives the liberty to assume that this fellow has committed the offence and it is for him to disprove it so the law gives the liberty through a shall presumption to assume or they may presumpt to assume so assumption and presumptions is a very beautiful expressible thing so with this I wind up my lecture I hope that it would have benefited the listeners and viewers thank you Vikas thank you sir just like your name you have actually illuminated the minds of the audience not only on the YouTube Facebook and Zubu the fact that on the YouTube I am seeing that number of viewership is excellent and in fact even on the zoom you will find that there was a consistent the participants didn't leave it the fact that your this is the testimony of that fact and thank you sir we will look forward for more sessions from you that was so insightful and thank you once again and thank you next study for partner ring with us stay safe, stay best Namaskar