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PRESUMPTIONS – A Cat on The Wall?

Article submitted by Kalidharun, SASTRA Deemed to be University.

What is presumption?

Presumption generally means a process of ascertaining few facts on the basis of possibility. It is the consequence of some facts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. It is “the idea that is taken to be true on the basis of probability” or “the act of believing something to be true without having any proof. Presumptions have a wider scope as they don’t only help the victim in the fast trial but it also helps in giving direction to the case.[1] The meaning and the purpose of a presumption was best explained by the Supreme Court in Kumar Exports v. Sharma Carpets[2] as follows:

When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over

Presumption can be either of law or fact. It is something that the mind draws, naturally and logically, irrespective of the legal effect. The invocation of a presumption shifts the burden of proof from the party, on whose favor the presumption is made, to the other or opposing party. Sections 79 to 90A deal with presumption as to documents and sections 111A to 114A deal with presumption as to facts in certain offences. Here we shall see how the presumption operates with relation to the facts of a case.

Types of Presumptions:

Presumption of facts:

Presumptions which are naturally and logically derived on the basis of experience and observations in the course of nature or the constitution of the human mind or springs out of human actions are presumption of facts, also known as material or natural presumptions. Presumption is a rule where if one fact is known as the primary fact is proved by a party then another fact which is known as the presumed fact is taken as proved if there is no contrary evidence. It is the standard practice where certain facts are treated in a uniform manner with regard to their effect as proof of certain other facts. For instance, if it is proved that a person is standing before the dead body in a crime scene with a knife; it is presumed that he has committed the crime.

Presumption of law:

A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. For instance, Presumption of innocence, i.e. the accused in any case is presumed to be innocent unless proved guilty beyond reasonable doubts. It is of two types as follows:

1. Rebuttable presumptions of law – presumptions which hold good until they are disproved by evidence to the contrary.

2. Irrebuttable presumptions of law – presumptions that are conclusive in nature. They cannot be overturned by any sort of contrary evidence.

Mixed presumptions:

Mixed presumptions are certain inferences which can be considered as observations of law due to their strength or importance, also known as presumptions of mixed law and fact and presumptions of fact recognized by law.

Section 4 of the Indian Evidence Act:

Section 4 of the evidence act speaks about three degrees of presumption, i.e. 1. May presume; 2. Shall presume; and 3. Conclusive proof.

May Presume:

May presume is a condition when the court enjoys its discretionary power to presume certain facts and recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act provides “whenever it is proved by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it”. “May presume” is a rebuttable presumption and is not a branch of jurisprudence. The court may presume the facts under the circumstances envisaged under sections 113A and 114 of the evidence act.

The court may presume the abetment of suicide when the following two conditions are fulfilled:

(i) She had committed suicide within a period of seven years from the date of her marriage and;

(ii) That her husband or such relative of her husband had subjected her to cruelty.

In the case of Pinakin Mahipatray Rawal v. State of Gujarat[1]the court made a differentiating line as to when the presumption should be invoked in the following words:

Prerequisites as stated in Section 113-A, Evidence Act must be established by prosecution before presumption thereunder can be invoked. Then only does burden shift on to accused to rebut the presumption.

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

For instance, the court may presume that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession

Shall Presume:

Shall presume denotes a strong assertion or intention to determine any fact. Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’. The court does not have any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they are proved until they are disproved by the other party. ’Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’. It is a branch of jurisprudence. The courts shall presume facts under the circumstances envisaged under sections 113B and 114A of the Evidence act.

The court shall presume that a person has committed the dowry death of the women, if soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry.

In Anand Kumar v. State of M.P[2]the court drew the distinction between the presumptions taken by the court under section 113A and 113B in the following words:

Burden to prove innocence is more on the accused under Section 113-B than under Section 113-A, which places a far lighter burden on the accused. In Section 113-A, which relates to Section 306 IPC, the court “may presume”, “having regard to all the other circumstances of the case”, but in Section 113-B, which is relatable to Section 304-B, the court “shall presume” and further there is no reference to the circumstances of the case,

In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent

Conclusive proof:

Conclusive proof can be considered as one of the strongest presumptions a court may assume. These presumptions are not completely based on logic rather court believes that such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence. This is the strongest kind of all the existing presumptions. Sections 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are some of the most important provisions related to the irrebuttable form of presumptions or Conclusive Presumption.

The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs.

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

A notification in the [Official Gazette] that any portion of British territory has been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.


While the truth or fact is known, there is no need or room for any presumption. The 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. When there is a conflict between a “conclusive proof” envisaged under law based on a presumption and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.[3] Hence presumptions are often invoked by the courts to fill the lacunae in the evidence. It is, therefore, said that the function of a presumption often is to “fill a gap” in evidence[4]. It is “a cat on the wall” for the reason that, unlike “conclusive proof” in “may presume” and “shall presume” a probative evidence disproving the presumptions will change the entire nature of the trial. Hence, the course of the case on presumptions is like “a cat on the wall”, it may result in favor of either party.

[1] (2013) 10 S.C.C. 48. [2] (2009) 3 S.C.C. 799. [3] Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 S.C.C. 576. [4] Narayan Govind Gavate v. State of Maharashtra, (1977) 1 S.C.C. 133.



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