Meaning of presumption
As per the dictionary, the meaning presumption is ‘an idea that is taken to be true based on probability’ or ‘the act of believing that something is true without having any proof’.
In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. Invoking a presumption shifts the burden of proof from one party to the opposing party in a court trial.
Presumptions are either of law or fact. Presumptions of fact are inferences that the mind naturally and logically draws from given facts, irrespective of their legal effect. A presumption is a rule where if one fact, known as the primary fact, is proved by a party, then another fact, known as the presumed fact, is taken as proved if there is no contrary evidence of the same. It is a standard practice where certain facts are treated in a uniform manner with regard to their effect as proof of certain other facts.
Presumptions can be classified into certain categories:
i. Presumption of fact
ii. Presumption of law
iii. Mixed presumption
According to Section 119 (1) of The Bharatiya Sakshya Adhiniyam, 2023-
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.
Illustrations.The Court may presume that-(a) a man who is in 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;(b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;(c) a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;(d) a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;(e) judicial and official acts have been regularly performed;(f) the common course of business has been followed in particular cases;(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;(h) if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;(i) when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
Different types of presumption of law have been provided in section 2(1)(l), 2(1) (b), 2(1)(h) .
“May Presume”
The word “may” itself denote ‘expressing possibility’ or ‘expressing or seeking permission’.
The presumptions under the first clause of Section 2(1)(h) (May Presume) may also be called as “Presumptions of Fact”; “Natural Presumptions”. “Permissive Presumptions”; “Rebuttalble Presumptions”. These presumptions do not constitute a branch of jurisprudence.
According to the first clause of Section 2(1)(h), whenever it is provided by this Adhiniyam that the Court may presume a fact,-
(i) It may either regard such fact as proved, unless and until it is disproved; or
(ii) It may call for proof of it.
The word provided in the first clause is weaker than the word directed in the second clause.
Illustrations
The Court may presume-
a. That judicial and official acts have been regularly performed;
b. That the common course of business has been followed in particular cases;
c. That a man who is in 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;
Sections 88 to 93, 117, 119 and 120 of the Bhartiya Sakshya Adhiniyam provide the necessary presumptions for “may presume”.
“Shall Presume”
The word ‘shall’ itself denotes a “strong assertion or intention or determination”. The presumptions under the 2(1)(h) (Shall Presume) may also be called as “Presumptions of Law”; “Artificial Presumptions”, “Obligatory Presumptions”; “Rebuttable Presumptions of Law”. These presumptions constitute a branch of jurisprudence.
According to the 2(1)(h), whenever it is directed by this Adhiniyam that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
The word directed in the second clause is stronger and determinative than the word provided in the first clause. The expression shall presume gives no discretion to the Court, but to accept a fact as proved, unless and until it is disproved.
Sections 78 to 87, 91 and 108,115, 118 of the Bhartiya Sakshya Adhiniyam provide necessary presumptions for “shall presume”.
Whenever there is a provision to the effect “that the court shall presume a fact” the court cannot exercise its discretion. It is compelled to take the fact as proved, i.e., it shall have to presume the fact. But in this case, the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in disproving it, the court shall not presume the fact.
“Conclusive proof ”
The word ‘conclusive’ itself denotes a “proving that something is true”, or “ending any doubt”.
When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.
When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that evidence or by some other evidence that the court permits or requires. When such other evidence is adduced, it would be open to the court to consider whether, upon that evidence, the fact exists or not.
The phrase ‘Conclusive proof is found in Sections 35, 116, and 117, 118 of the Evidence Act and S. 20 of the Bhartiya Nyaya Sanhita.
