In different departments of the law, the absence of a person leaving no trace behind gives rise to mysterious and perplexing problems. The authorities demonstrate that these problems are by no way as straightforward to solve as the books on Evidence indicate. The explanation for this difficulty is that this issue and indeed the whole domain of presumptions are focused on an unresolved clash of policies.
On the one hand, there is the dislike of being coerced into factual judgments by codes of law rather than logic; on the other hand, when the proof is objectively inadequate, there is the compelling need to provide some judgment in each case. There is no convenient or standardized resolution to this dispute. Both the facts that give rise to the inference, the essential facts, and the assumed facts, vary according to the type of case before the court.
The view that the assumption must be absent “beyond the seas” no longer needs a great deal of assistance but while in any position a person may be absent, the problem persists absent from where? The absence from the last site of dwelling must, as a general rule, be proven.
However, if it is not known where the person last resided, it is alleged that the absence from the last place where the witnesses in the proceedings had heard him should be appropriate, even though it is possible that he may have had some other, but undisclosed, place of residence afterwards.
- UNHEARD FOR SEVEN YEARS
It is stated that if there is no dependable source which proves that the person is alive in seven years, i.e., unheard for seven years- the person is presumed to be death. Contrary, it is obvious that the sole evidence that a person has not been heard of is not adequate if the application of fair diligence might have acquired news of him.
Just as the individual who attempts to create the assumption is not compelled to listen to meaningless rumors, he must not close his eyes to potential sources of reliable knowledge as well.
- PEOPLE WHO COULD HAVE LIKELY HEARD OF THE PERSON
It is actually not possible to assume that which person can likely hear from the missing person. By a general rule, it is laid down that usually the closed ones, the near ones, the neighbors and of course the family members fall under this category.
However, if there are reasons other than death to explain for the disappearance and absence of news, their testimony is not adequate. Therefore, a man who is an escapee from justice, creditors, his relatives, or his fiancé should not be presumed to connect with the people who would have possibly learned from him, but for such flee.
But it is evident that if there is no credible proof of his execution, such an escapee will not be endured with legal immortality. The outcome of such cases depends on whether the judge is predominantly affected by the disdain of being coerced into an unreasonable decision or by the urge to obtain some definite result, even though the evidence is logically inadequate to justify it.
In order to lift the suspicion, it is appropriate, in the’ rational’ view, to track the fugitive to the location where he disappeared and to find witness accounts there to attest that they did not hear from him. It is necessary for the ” practical ” view to take the witnesses from the position from which he vanished.
The latter view is obviously more desirable if no one knows precisely where the fugitive has gone, or where it is difficult to make investigations at his last known place of residence, as happens in most instances.
- DEATH TIME
It is sometimes, though not always, is possible that the evidence put forth deduces the time of death of the missing person.
For example: if I permitted my brother to go out and play and he does not return and on the next day or after a couple of days, his body is found in the lake- it will be presumed that he died on the day I permitted him to go out and play. It is irrelevant if the fact of death is founded by proof, as in the example above, or whether it is demonstrated by the presumption of death.
The perfectly rational outcome is met in these situations that, while the fact of death cannot be known until the expiry of seven years, it is then feasible to ‘reflect back’ and revisit the events in order to assess the added fact of the date of death. In instances of ‘pure’ presumption, where there is no proof at all as to the time of death, the most severe challenges emerge.
It is certainly enticing to place the matter thus in such cases: an absence at around this time; this absence is, at the time of proceedings, past 7 years; That being said, this abstract kind of investigation contributes to uncertainty. The most efficient investigation is one that places the absence in the sense of the specific problem and focuses not on the time of the prosecution, but on the date on which it must be proven that demise happened.
- WHEN THERE IS DEATH WITHOUT ISSUE
There are situations and circumstances where people claim that the missing person has died without an issue. In these cases, the plaintiff has the burden of proof upon him and not the defendant.
The question arises- whether such claims without issue is admissible? In various laws around the world, it was not accepted as a ratio decendi, however, if prima facie it is evident, then the judgment is in favor of death without issue.
Further, it would appear that either there must be, without doubt, some proof of death, even if it is inadequate to contribute to the intended inference by its own force; or that the conditions must be so obscured in mystery over time that it is virtually difficult to acquire any substantiation at all.
SECTION 107 & 108 OF INDIAN EVIDENCE ACT, 1872
Section 107- “Burden of proving death of person known to have been alive within thirty years. —When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.”
Section 108- “Burden of proving that person is alive who has not been heard of for seven years.—1[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2[shifted to] the person who affirms it.—1[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2[shifted to] the person who affirms it.”
EXPLAINATION– Burden of demonstrating death within thirty years of a person believed to have been alive. When the issue is if a man is alive or dead, and it is seen that within thirty years he was alive, the responsibility of showing that he is dead lies on the person who claims it. The responsibility of demonstrating that an individual who has not been heard of for seven years is alive.
Given that when the issue is if a man is alive or dead, and it is proven that those who would normally have heard of him if he were alive have not learned of him for seven years, the responsibility of demonstrating that he is alive is [shifted to] the person who asserts it.
In Smt. Radha Gajapathi Raju v. The Assistant Controller of Estate duty, it was upheld that There is a presumption of death at the end of seven years, although there is no presumption as to the actual time of death. The specific time of death is not a matter of inference, and the burden of proof lies with the individual seeking the right to prove that the death occurred at a particular time.
In O I C v. Mohd Hameed, it was stated that under Sections 107 & 108 of the Indian Evidence Act, a presumption of death can be formed when someone is not heard alive by those who should ordinarily have heard about him within a span of seven years, but no presumption can be derived about the time and cause of death of the expired.
In, L.I.C. Of India v. Anuradha, it was deduced that If, after seven years of absence, the presumption of death applies, the person shall be assumed to have died by the end of that time, where the presumption does not apply or is substituted by proof, it shall be determined on the facts of the case in question.