ReBoot Webinar Series,

Season - II
Presumptions under Indian Evidence
Act,1872.

Presented By - D.U.Rajput.
C.J.J.D & J.M.F.C
Kuhi, Dist- Nagpur.
Meaning of Presumption
A presumption is an
inference of a fact drawn from other known or proved facts.
Such inferences may be affirmative or negative. It is a
jurisprudential rule under which courts are authorized to draw
inference from a particular fact, unless and until the truth of
such inference is disproved by other evidence.
Presumptions are drawn from the cause of nature or
events like ... night follows day;
...where a man with bloodstained clothes comes out of a
room where another man has been stabbed to death. The
inference is that the man coming out from the room is the
murderer.
The basic rule of presumption is when one fact of the case or
circumstances are considered as primary facts and if they are proving
the other facts related to it, then the facts can be presumed as if they
are proved until disproved.
Section 114 of Indian Evidence Act specifically deals with the
concept that ‘the court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common
course of...
(a) natural events,
(b) human conduct, and
(c) public and private business, in their relation to the facts of
the particular case’.
General Classification of Presumption
The traditional approach of common law system has classified presumption
only under two categories that are a presumption of law and presumption of facts
but to avoid any ambiguity in deciding any case the Indian legal system has adopted
the third classification that is mixed presumptions which includes both the aspects
of facts as well as law. Hence the existing legal system has three types of
presumptions which are as follows:

1) Presumption of Facts- Presumptions of facts are those inferences

that are naturally and reasonably concluded on the basis of observations and
circumstances in the course of basic human conduct. These are also known as
material or natural presumptions. Natural Presumptions are generally rebuttable in
nature.
There are few provisions that are directly expressing about Natural
Presumptions such as. Section 86 talk about certified copies of foreign judicial
records, Section 87expresses presumption of Books, Maps and Charts, Section 88
deals with presumption related to Telegraphic Messages, Section 90 deals with
documents aged thirty years old.
Section 113 A deals with hardcore crime that is Presumption as to abatement
of suicide by a married women and Section 113 B deals with the presumption as to
dowry death. Under the Presumptions of Facts, the concept of ‘shall presume’ is
utilized. And by the concept, the court will presume that a fact ascertained before
them are proven facts until and unless they are proven disproved by the accused.
The concept of ‘shall presume’ expresses that the courts are bound to maintain and
recognise some facts as proven by making a mandatory presumption and the court
has to consider them as completely proven until such presumption are challenged
and disapproved. When these presumptions are disproved by the challenging party
then the court has no discretion on maintaining such presumptions.
1.1) Few Conditions Where Court May Use the Presumption of Facts To
Ascertain Some Facts:-

...Foreign Judicial Records- Section 86 explains the principle that the court
has the discretionary power to make presumptions with respect to the
originality and accuracy of the certified copies of a different foreign country’s
judicial records and the called document should be consistent with the local or
domestic rules. The presumption explained under this Section has a very
significant role, therefore, should be complied with it. It is also observed that if
the court does not feel that the foreign judgments are not consistent with the
local laws then these judgments lose the evidentiary values in the court.
...Abetment as to Suicide by a Married Women- Section 113 A deals with
the presumptions of abetment of suicide of a married woman either by her
husband or any of his relatives. There are few essentials to check that whether
a suicide executed by married women is inconsistent with the essentials
mentioned under the provision, and if they are consistent to it then the court in
such cases presumption can be drawn that such suicide has been abetted
either by the husband or his relative. The essentials of this provision are:
(i) The incident of suicide was committed within a period of seven years from
the date of her marriage; and
(ii) Her husband, or his relative, has subjected her to cruelty as according to the
Section 498 A of IPC.
...Abetment of Suicide to married Women for the purpose of Dowry-
Section 114 B of Indian Evidence Act deals with the principles of presumption
related to abetment of suicide to married women for the purpose of dowry.
This Section empowers the court to presume that the husband and his
relative are the abettors of suicide and the wife was subjected to cruelty or any
torture related to demand of dowry. While explaining the concept of Section
113B the court explains certain essentials which are to be fulfilled for raising
any presumption related to abetment of dowry death. The essentials of Section
113B are completely the same as of essentials of Section 113A of Indian
Evidence Act. But a thin line of difference between Section 113A & 114B is that
the presumption of Section 114B only comes to the picture if the prosecution
has certain proofs that the cause of death was cruelty or maltreatment or
harassment for dowry demand. Hence, under this Section, the presumption is
carried only when the prosecution proves the case.
Certian Rullings-

1. Em Chand v State of Haryana (1994) 3 Crimes 608 (SC) the couple

married on 24 May of 1962. The wife left her husband’s home just after 2
months of her marriage and explained the reason to her parents that her
husband is demanding for a TV and a refrigerator. After listening to such
demands her father out of his hard money gave her around Rs. 6,000 and
she left for her matrimonial home. But the husband’s desire was not
finishing and he again asked her to get twenty-five thousand rupees from
her home as he is willing to buy some real estate property. Thereafter
the accused took his wife to her parents’ home and said that he’ll take
back her only if he will be paid Rs. 25,000. One year after she came back
to her matrimonial home with Rs. 15,000 and promised the balance
amount will be paid soon. But on the same day, she died of strangulation
in her husband’s home. The trial court and Hon'ble Supreme Court found
accused to be guilty and convicted on carrying the presumptions that her
husband has performed cruelty against her and the reason for her death
could be the husband’s cruelty for the purpose of dowry.
2. Shanti v State of Haryana AIR 1991 SC 1226

The Hon'ble Supreme Court held that the victim’s death should be soon
after the victim was subjected to cruelty or harassment for the purpose of
dowry. But in this matter, the wife was taken back to her home as the
dispute was solved by the local panchayat and this incident happened
before 10-15 days of her death. However, the facts seem to be so clear but
the presumption cannot be made as there was no evidence which
indicates that she was treated with cruelty for the purpose of raising dowry
when she was taken back to her matrimonial home. Hence in these
circumstances, the presumption for dowry death cannot be raised and
Section 113B of the Indian Evidence Act .
3. Baijnath & Others v. State of Madhya Pradesh (2017) 1 SCC 101

Hon'ble Supreme Court expounded that, “One of the essential

ingredients of dowry death under Section 304 B of the Penal Code is that
the women must have subjected to cruelty either by the husband or his
relatives for the purpose of dowry soon before her death and bring it as
an essential ingredient of Section 304 B of IPC the prosecution has to
prove the connection of the victim’s death with the act of cruelty by the
husband or by his relative for the purpose of demanding dowry and the
connection must be proved beyond reasonable doubt then only the
court will put the case into the window of Section 113 B of Indian
Evidence Act.
2) Presumption of Law-

Presumptions of law are those inferences which are said to be

established by law. It can further be divided into:-

A. Rebuttable presumptions of law ,and

B. Irrebuttable presumptions of law.

A. Rebuttable Presumptions :
Rebuttable Presumptions are certain presumption which is regarded as
evidence of good quality and does not lose their quality until proven contrary to
the presumption. Although it does not easily measure the extent of such
presumption as their validity only exists until they are not proven wrong.
The basic example of rebuttable presumptions can be-
a. Presumption of innocence,
b. Presumption of Sanity,
C. Birth during Marriage,
d. Presumption of death in ,
e. Presumption of possession ( except in the case of tanuncy )
f. If a person who is in possession of some stolen property than it is quite
obvious that he can either be a thief or a receiver of stolan property.
B. Ir-rebuttable Presumption -

Such presumptions cannot be ruled out by any additional probative

evidence or argument. Therefore the presumption explained comes under
the roof of conclusive presumption which cannot be proven contrary.
The basic example of irrebuttable presumptions can be-
a. A child under the age of seven years is presumed that he is not
capable of committing any crime ( Sec. 82 of IPC ).
b. Rule of Estoppel ( Sec. 115,116 and 117 of Indian Evidence Act. )
2.1) Few Conditions Where Court May Use the Presumption of Law To
Ascertain Some Facts:

... Presumption of Innocence - According to this legal maxim, the burden of proof is
with the person who declares the facts, not the person who denies the fact. The
presumption of innocence is the legal principle which means every person should be
considered as an innocent person unless it is proven guilty or until court believes that
the person is in charge of acts prohibited under law.
...Birth During Marriage- The Latin maxim ‘pater est quem muptice demonstrat’,
explains a basic assumption that the person who marries women is the father of son/
daughter out of wife. Section 112 of the Indian Evidence Act deals with the legitimacy
of a child born during the marriage. The Section implies that if a child is born during
the continuance of a valid marriage between the couple then it is conclusive proof of
that the child is legitimate and the only ground which is available to either of the
parties to prove the illegitimacy is to prove any access to each other in such a way
that their marriage was not consumed. The main objective of the lawmaker institute
is to provide legitimacy to the child born during a valid marriage and the legislature
also explains that such presumption is not only limited to provide legitimacy to the
child but also it is to maintain the public morality so that the legitimacy of the child
It must be noted that the application used under the Section 112 derives from
Section 4 and must be read together to understand the general applicability
Section 4 which expresses that wherever there is a doubt of the legitimacy of
children born during a valid marriage the court will presume, fact that the person
whom the mother married the father of that child. Hence to achieve the objective
of the legislature the court must assume it to be a case of ‘conclusive proof’. Just
like all laws, no law is absolute therefore the legitimacy of such a child can only be
rebutted the party proves non-access to each other or if no marriage was
consumed.
In Revanasiddappa v. Mallikarjun (2011, 11 SCC 1) Hon'ble Supreme Court
opined that: the objective of the Constitution is broadly expressed in the
Preamble of our Constitution which focuses on equality, equity, equal opportunity
and separate individual’s dignity. The Court while adjudicating such cases must
remember the objectives of the constitution that everybody has separate and
individual dignity of his own, therefore the court has to look into the matter that
illegal or immoral or illegitimate relationships of parent do not hinder the dignity
of the child born out of such relationships. As a child born out of such a
relationship is innocent and has all the rights empowered to him under the
Constitution and the status of the child must be as equal to as of child born out of
valid marriage.
Gautam Kundu v. State of West Bengal (AIR 1993 SC 2295)
Hon'ble Supreme Court in its observations expresses that-
1. Courts have no authority to direct blood test to challenge the legitimacy of
the child.
2. The husband has only one possibility to get rid of such presumption and for
that, he must satisfy the court by proving no- access to consume the
marriage.
3. The Court should carefully examine the fact that what will be the
consequences if the blood test comes in favour of a husband who is
challenging the legitimacy of the child. And what if the further
consequence has a serious impact on the child’s legitimacy or makes the
mother as an impure/ unchaste woman.
… Presumption of Death- The presumption of death is explained under Section
107 and 108 of Indian Evidence Act which refers to a situation when a person has
disappeared for many years, and after such situations the law presumes him to be
dead.Section 108 of this Act describes the amount or the tenure i.e. 7 years,
where, there should be no proof of the existence of the person in the society.
In Balambal v. Kannammal (A.I.R 1989 Madras 248 = 1989-1-L.W. 306), the
court held that the presumption of death could only be invoked if the death or
inexistence of that person is proved when the presumption is raised in the court
and no person can utilise such presumption for generating any type of death
record of the called person.
In T.K Rathnam v. K. Varadarajulu (1970 A.P 246), the dissenting opinion of the
learned judge explains in his judgment that the presumption of the existence of
the person or death of the person is always rebuttable. He also observed that the
accurate timing of death is not a matter of presumption rather it is a matter of
evidence.
… Presumption of Sanity- It refers to the mental state of a person facing a criminal
trial. Specifically, the court assumes that every person is sane and is fit to his
mental capacity until someone proves contrary to the assumptions of the court.
… Presumption of Constitutionality- The presumption of constitutionality refers to
a concept that all statutes, bills, policies, guidelines etc., drafted by different levels
of governments are consistent with the constitutional requirements. The court
generally presumes that the statues are meeting the constitutional requirements’
and are helping in achieving the constitutional objective. But the person, who
interprets these statues in such a manner which makes such statues contrary to
constitutional requirements, then has to prove the same.
… Presumption of Possession- Section 110 deals with such presumption and
explains it as when a person who is enjoying the possession of anything and he
claims himself as the owner then the court inferences that he is the real owner.
These are generally rebuttable presumptions and do not lose their substantiality
until they are proven contrary by the affecting party.
3) Mixed Presumptions (Presumption of Fact and law both):

Mixed presumptions is a blend of different concept. When the court in its

inferences uses such blend consists of different classification of presumption
i.e., Presumption of Facts and Presumption of Law then the presumption is
considered to be a Mixed Presumption. The principles of such presumptions are
only reflected in the English which specifically deals with statute of real
property. But in the Indian legal system, the principles of presumptions are
expressed specifically and The Indian Evidence Act deals with such principles.
The Indian Evidence Act has mentioned few provisions both for the
presumption of law and for presumptions of facts. The scope of this statute just
does not end here rather it also has different provisions which deal with the
discretionary power of Indian Court in raising presumption such as- Principles of
May Presume, Shall Presume and Conclusive Proof.
May Presume, Shall Presume and Conclusive proof

May presume is a condition when the court enjoys its discretion power to
presume any/ certain/ few 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 that a fact or a group
of facts may be regarded as proved, until and unless they are disapproved. The
concept is defined under Section 4 that ‘May Presume’ deals with rebuttable
presumption and is not a branch of jurisprudence.
Shall presume denotes a strong assertion or intention to determine any fact.
Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that 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. Section 4 of the
Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be
called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory
Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of
jurisprudence.
Conclusive Presumptions/ Proofs, this can be considered as one of the
strongest presumptions a court may assume but at the same time the
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 whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of
the Indian Penal Code are one of the most important provisions related to the
irrebuttable form of presumptions or Conclusive Presumption.
Conclusion :-

In Tukaram v State of Maharashtra 1979 2 SCC 143, This case was decided on
considering the facts of Mathura Rape Case and while adjudicating the case the
Court justified the need and necessities of such presumptions. The Court also
explained that Presumptions has 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.
Therefore such presumption can effectively help the judiciary in providing
quick and complete justice to the society. According to Stephen presumption is
mandatory, not permissive presumption and especially permissive is dealt in
Section 90 of the evidence act. Permissive presumption means it is on the court
discretion whether to believe or not to believe.
THANK YOU.....!!!