Leading judgment of Supreme court on appreciation of DNA evidence

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 24 of 2014 (Arising out of Special Leave Petition (Crl.) No. 8852 of 2008)

Decided On: 06.01.2014

 Nandlal Wasudeo Badwaik  Vs. Lata Nandlal Badwaik and Ors.

Hon'ble Judges/Coram:

C.K. Prasad and J.S. Khehar, JJ.

Citation: (2014) 2 SCC 576

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What is distinction between legal fiction and presumption?

There is a clear distinction in law between a legal fiction and presumption9. "A distinction commonly taken between the fiction and the legal presumption runs something as follows: A fiction assumes something which is known to be false; a presumption (whether conclusive or rebuttable) assumes something which may possibly be true. This distinction is regarded as being reinforced, as it were, in the case of the rebuttable presumption because such a presumption assumes a fact which probably is true."10 "Presumptions are closely related to legal fictions ... but they operate differently"11. "Fictions always conflict with reality, whereas presumptions may prove to be true"12. Legal fictions create an artificial state of affairs by a mandate of the legislature.

... an assumption of fact deliberately, lawfully and irrebuttably made contrary to the facts proven or probable ....... with the object of bringing a particular legal Rule into operation ... the assumption being permitted by law ...

They compel everybody concerned including the courts to believe the existence of an artificial state of facts contrary to the real state of facts. When a fiction is created by law, it is not open to anybody to plead or argue that the artificial state of facts created by law is not true, barring the only possible course if at all available is to question the constitutionality of the fiction. It is settled law that only sovereign legislative bodies can create legal fictions but not a subordinate law making body.

33. Whereas presumptions are Rules of evidence for determining the existence or otherwise of certain facts in issue in a litigation. "Presumptions13 were inferences which the judges were directed to draw from certain states of facts in certain cases, and these presumptions were allowed a certain amount of weight in the scale of proof; such a presumption and such evidence amounted to full proof, such another to half full, and so on."14 Nothing is brought to our notice to say that a non-sovereign law making body cannot make a Rule of evidence containing a presumption. In our opinion, Agricultural Market Committee is not an authority for the proposition that a presumption cannot be created by subordinate legislation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7823, 7825 and 7824 of 2014

Decided On: 24.03.2017

Bhuwalka Steel Industries Ltd. and Ors.

Vs.

Union of India (UOI) and Ors.

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Whether non-sovereign law making body can make Rule of evidence containing presumption?

Section 3A(2) only embodies a Rule of evidence which command the department to presume certain facts. Such presumptions are not unknown to law. Whereas presumptions are Rules of evidence for determining the existence or otherwise of certain facts in issue in a litigation. "Presumptions were inferences which the judges were directed to draw from certain states of facts in certain cases, and these presumptions were allowed a certain amount of weight in the scale of proof; such a presumption and such evidence amounted to full proof, such another to half full, and so on." Nothing was brought to notice to say that a non-sovereign law making body cannot make a Rule of evidence containing a presumption. Agricultural Market Committee v. Shalimar Chemical Works Ltd. is not an authority for the proposition that a presumption cannot be created by subordinate legislation. [31] and[32]
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7823, 7825 and 7824 of 2014

Decided On: 24.03.2017

Bhuwalka Steel Industries Ltd. and Ors.

Vs.

Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Jasti Chelameswar and Abhay Manohar Sapre, JJ.

Citation:(2017) 5 SCC598

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Whether Indian penal code provides for vicarious liability for any offence alleged to have committed by company?

Learned counsel for the respondents have not

rebutted this issue in any of his arguments. With the

meticulous understanding of the orders of the Courts

below in the instant case, we can see that general and

bald allegations are made in the context of appellant

No.1 who is a juristic person and not a natural

person. The Indian Penal Code, 1860, does not

provide for vicarious liability for any offence alleged to

be committed by a company. If and when a statue

contemplates creation of such a legal fiction, it

provides specifically therefor, e.g. Negotiable

Instruments Act, 1881. Further, reliance was made

on S.K. Alagh Vs. State of Uttar Pradesh & Ors.,

reported in (2008) 5 SCC 662, where at paragraph 16,

this Court observed that “Indian Penal Code, save and

except some provisions specifically providing therefor,

does not contemplate any vicarious liability on the part

of a party who is not charged directly for commission of

an offence.” Further in Maksud Saiyed Vs. State of

Gujrat & Ors., reported in (2008) 5 SCC 668, at

paragraph 13, this Court observed that where a

jurisdiction is exercised on a complaint petition filed

in terms of Section 156(3) or Section 200 of the Code

of Criminal Procedure, the Magistrate is required to

apply his mind. Indian Penal Code does not contain

any provision for attaching vicarious liability on the

part of the Managing Director or the Directors of the

Company when the accused is the Company. The

Learned Magistrate failed to pose unto himself the

correct question viz. as to whether the complaint

petition, even if given face value and taken to be

correct in its entirety, would lead to the conclusion

that the respondents herein were personally liable for

any offence. The Bank is a body corporate. Vicarious

liability of the Managing Director and Director would

arise provided any provision exists in that behalf in

the statute. Statutes indisputably must contain

provision fixing such vicarious liability. Even for the

said purpose, it is obligatory on the part of the

complainant to make requisite allegations which

would attract the provisions constituting vicarious

liability. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1213 OF 2016

(Arising out of S.L.P.(Crl.) No.1913 of 2012)

HDFC Securities Ltd. & Ors 

V

State of Maharashtra & Anr.

Dated:December 9, 2016. 

Citation:(2017)1SCC640

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Distinction between legal fiction and presumption of a fact.

We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption. The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

Supreme Court of India

Nandlal Wasudeo Badwaik vs Lata Nandlal Badwaik & Anr. on 6 January, 2014

Citation; 2014 (crimes) 10 SC,(2014) 2 SCC576

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