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Report No. 185

Section 114

The presumption as to state of things in future is provided in section 114 illustration but the presumption backwards, as recognized by Courts, is sought to be introduced by our recommendation. Certain other minor changes are made.

As to accomplice, we shift the substance of illustration (b) to section 133 and drop illustration (b) from section 114.

We recommend the following changes in the illustrations in section 114.

(i) illustrations (b) and (c) be omitted.

(ii) after illustration (d), the following illustration be added namely,

"(da) that a thing or state of things which has been shown to be in existence at a point of time, was in existence earlier within a period shorter than within which such things or state of things usually cease to exist";

(iii) after the paragraph "But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:" the following amendments shall be made, namely:-

(A) both the paragraphs starting with the words "As to Illustration (b) " shall be omitted;

(B) the paragraph starting with the words "As to Illustration (c) " shall be omitted;

(C) after the paragraph starting with the words "As to Illustration (d)" the following shall be inserted, namely:-

"As to Illustration (da) : It is proved that a river is running in a certain course this year, but it is known that there have been floods for several years earlier, which might have changed its course." ;

(D) in the paragraph starting with the words," As to Illustration (e)", for the words " A judicial act, the regularity of which is in question ",the words ," A judicial or official act, the regularity of which is in question" shall be substituted."

Section 114A

In 172nd Report of the Law Commission, there was an amendment proposed in section 376 of the Indian Penal Code defining 'sexual assault'. Consequent changes were proposed to be made in section 114A, in the 172nd Report. But, as the said Report is not yet implemented, we leave section 114A as it is now.

Section 114B

The text of section 114B as recommended in the 113th Report was as follows:

"114B. (1) In a presumption of a police officer for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.

(2) The Court, in deciding whether or not it should draw a presumption under subsection (1), shall have regard to all the relevant circumstances including, in particular, (a) the period of custody, (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence, (c) the evidence of any medial practitioner who might have examined the victim, and (9) evidence of any magistrate who might have recorded the victim's statement or attempted to record it."

We reiterate this recommendation with modification. In the light of D.K. Basu , we are of the view that a subsection (3) be added below the proposed section 114B that 'police officer' in this section means, officers belonging to police, the para military forces and the officers of Revenue Department such 910 as those of the Customs, Excuse officers and the officers under Revenue intelligence.

We recommend that a new section 114B be inserted as follows:-

"114 B. Presumption as to bodily injury while in police custody.- (1) In a prosecution of a police officer for an offence committed by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.

(2) The Court, in deciding whether or not it should draw a presumption under sub-section (1), shall have regard to all the relevant circumstances including, in particular,

(a) the period of custody;

(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence;

(c) the evidence of any medical practitioner who might have examined the victim; and

(d) evidence of any magistrate who might have recorded or attempted to record the victim's statement ."

(3) For the purpose of this section, the expression 'police officer' includes officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences."







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