Presumption | Case Reference

Presumption of fact

A public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law- It is now settled that a public servant while discharging public duty seizes any contraband goods or article from a person, it will be presumed that he has acted in accordance with law. It is a presumption of fact. If the recovery and seizure are made in accordance with law, it is difficult to disbelieve the evidence of the seizing officer unless inherent infirmities are revealed in course of cross examination.

Therefore, the onus lies upon the accused to show that no such arm was recovered from his possession. It is now settled that the non-examination of public witnesses is not a legal ground to disbelieve the prosecution case. This view has been taken on consideration of the present socio- economic condition and on the rise of criminal acts. Normally, the public witnesses are not willing to depose against the terrorist persons for fear of reprisal or other reasons. That will not disprove the recovery of arms. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. The accused respondent shall get the benefit of section 35A of the Code of Criminal Procedure. The State =VS= Md. Ali Reza, [5 LM (AD) 247]

May presume-Presumption-Rebuttable. Observed by Allahabad High Court that it is no doubt true that a presumption of service arises in case there is an endorsement of refusal by the addressee but in view of Section 4 of the Evidence Act it is a rebuttable presumption and can be displaced by evidence being led by the defendants that the notice was not received and had not been refused. Satnarain v. Ram Kishan, 1981 Civ LJ 2.

Court may presume-Ordinary conese of postal business. In view of the provision in Evidence Act the Courts can presume that in the ordinary course of postal business registered letters and money orders or normally delivered to the addressee in the same town either next by or atleast on the day thereafter. In his case also the parties are the residents if the same town and the money- order has been sent on 18-6-1968. There is however no reason that it must have been reached the addressee on 20-6-1968. In 1964 All LJ 148, Zarreef Khan v. Mukhtar Ahmad, wherein it was held where the parties live in the same city and the same postal area the Court may presume under Section 114 of the Evidence Act the normal course of business must have been followed and the money-order sent by 13th July reached the landlord on the 14th July, though the exact time of the delivery cannot be ascertained. Smt. Bibbo v. Sheikh Barki Ali, 1981 Civ LJ 116. Cases relied on.- Smt. Parmeshwari Devi v. Abrar Hussain, AIR 1971 All 22. Ganga Rom v. Smt. Phoolwati, AIR 1970 All 446. Presumptions. The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Facts and circumstances from which certain inferences follow are indicated in various provisions of the Evidence Act. Whenever the law permits the raising of a presumption the Court can by reason of Section 4 of the Evidence Act raise the presumption for purpose of proof of a fact. If the presumption is avail- able in one section it can raise it under that section. If it is not available in one section and is available in another section, then the Court can raise pre- sumption under this section. It all depends upon the circumstances available in the case. Ram Jas v. Surendra Nath, AIR 1980 All 385, FB. Presumptions. Presumptions are of three types- (i) Permissive presumptions or presumption of fact. (ii) Compelling presumptions or presumptions of law, (iii) Irrebutable presumption of law or conclusive proof. Syed Akbar v. State of Karnataka, AIR 1979 SC 1848. Presumptions of facts. Presumptions of facts are inferences of certain facts patterns drawn from experience and observation of the common course of nature, the Constitution of human mind, the springs of human action, the usage and habits of society and ordinary course of human affairs. Syed Akbar v. State of Karnataka, AIR 1979 SC 1848. Presumption of law. In the case of presumption of law no discretion has been left to the Court and it is bound to presume the fact as proved until evidence is given to the party interesting to rebut or disprove it. Syed Akbar v. State of Karnataka, AIR 1979 SC 1848.

Presumption

Non-examination of important witnesses, particularly some of the neighbours, without reasonable explanation gives rise to an ad- verse presumption against the prosecution-Evidence Act S. 114(g) Dula Miah alias Nurul Islam and others Vs. The State, 14BLD(HCD)477

Ref: 27 DLR(AD)29; 44DLR(AD) 10. L.L.R. Indian Appeals 147; 12 DLR(SC) 156; 12DLR(SC)217; 36 DLR 185; 16 DLR 147; 45DLR 171; A.IR. 1939 (PC) 47; 25 DLR 399; AIR 1957(SC) 107; 6BLD(AD)1-Cited

Presumption arising out of failure to examine material witnesses mentioned in the charge-sheet.

It is true prosecution is not bound to examine each and every witness cited in the indictment of the charge-sheet. But, nevertheless, it takes the risk that if anyone of these witnesses is shown to be a mate- rial witness, then the court may, having regard to the facts and circumstances of a case, draw a presumption that if such a material witness had been examined, he would not have supported the prosecution case. Fazlul Hasan Vs. State (1959) 11 DLR 316: (1959) PLD (Dac) 931. 

Presumption unfavourable from non- examination of evidence or document.

It is hardly necessary to stress the great importance which attached to non-production of an important witness by the prosecution in a criminal case, where no satisfactory reason for non-production is established. It is true that the prosecutor is not bound to produce before the Court a witness who is expected to give true evidence, but he cannot escape the duty of causing such a witness, if his evidence be of importance, to be present at the trial in case the opposite party should wish to examine him. Khairdi Khan Vs. Crown (1953) 5 DLR (FC) 185 (204 left. h. col. bottom).

Presumption

Non-production of the 'requisition slip' by the prosecution leads to an adverse presumption against it under section 114(g) of the Evidence Act that if the slip was produced it would show that the Director himself obtained the blank Accession Register and made over the same to accused Respondent No. 2 for preparation of a new Register. The Solicitor, Government of Bangladesh Vs. Feroz Mahmud and another, 14 BLD(HCD)160

Presumption

In view of the evidence on record, the observations made by the Special Judge against the informant in the judgment under appeal are not unjustified and call for no interference. 

The Solicitor, Government of Bangladesh Vs. Feroz Mahmud and another, 14 BLD (HCD) 160

Presumption that the judicial or official acts were performed regularly. Presumption that a judicial or official act, which has been performed, has been performed regularly does not go to prove that the act was actually performed. A.Mannan Vs. Crown (1953) 5 DLR 533

Presumption under the clause does not go to prove that the act was actually done unless there is evidence to the effect. State Bank of Pakistan Vs. Azizul Islam (1961) 13 DLR 476

An insured letter was received by the Post Master at the post office K. The prosecution case was that this insured letter was sent by the post office K to the post office S. There is no evidence that this letter was actually sent to the post office S except an entry in the Master's journal that it was so sent to S. The prosecution relied upon this entry in the journal to show that the letter was actually sent by the Post Master at K.

Held-The presumption under clause (e) of section 114 of the Evidence Act only applies when there is evidence to show that the act itself was per- formed. A.Mannan Vs. Crown (1953)5 DLR $33

Sanction for prosecution accorded by an officer-Presumption is that official act was regularly performed, unless contrary is proved. Nirode Chandra Vs. State (1957) 9 DLR 546.

Onus that detention is lawful, on the authority-Presumption is, every detention is unlawful.

Malafide must be pleaded with particularity and once one kind of malafide is alleged, the detenu should not be allowed to adduce proof of any other kind of malafides. Initially the onus is on the detaining authority to justify the detention by establishing the legality of his action.

The presumption is that every imprisonment without trial and conviction is prime facie unlawful and it is only then that the onus shifts on the detenu to show malafides, again having regard to the fact that in cases the materials upon which the belief is based will be mainly in the special knowledge of the detaining authority and not of the detenu, section 106 of the Evidence Act itself would require the detaining authority to discharge this burden. Government of West Pakistan Vs. Begum Agha Abdul Ka- rim Shoresh Kashmiri, (1969) 21 DLR (SC) 3.

Presumption against the prosecution for withholding witnesses and evidence 

When the prosecution did not examine the doctor who held postmortem examination, the investigation officer and other charge-sheeted material witnesses without satisfactory explanation, adverse presumption under section 114(g) of the Evidence Act must be drawn against the prosecution.  Munsurul Hossain alias Babul Vs The State, 16BLD(HCD)326  Ref: 36 DLR 333; 28DL R 128—Cited.     

Presumption against Prosecution Case- In First Information Report it is stated that Sub-Inspector Sunil Kumar Sen who figured as charge sheet witness no. 11 accompanied Sub-Inspector of Police PW1 and, also! PW 6  to  the  place  of occurrence and apprehended convict-appellant. PW6 in his testimony testified that local chowkidar took them to the place of occurrence but these two persons had not been placed on witness box by prosecution. No explanation even had been even assigned for their non-examination   by   prosecution. Nor production of above two witnesses was vea much fatal for prosecution case and presumption contemplated in Section 114(g) of The Evidence Act must follow.  Babul Vs. The State 13 BLT (HCD) 339