NAME:-AMAN KUMAR

SECTION:-A
ROLL NUMBER:-10
TOPIC:-PRESUMPTION
 Serial Topic Page
No:- No:-
1 Presumption 1
2 SECTION 4 OF INDIAN EVIDENCE ACT 1872:- 1
3 CLASSIFICATION OF PRESUMPTIONS 1

4 Distinction between Presumption of Fact and 3

Presumption of Law
5 SECTION 114 OF INDIAN EVIDENCE ACT 1872 4

6 Conclusion 10
7 Bibliography 10

Table of Cases:-

:- Miss Srumoyu Ghosh v. State of West Bengal and Others

:- Bhagban Panda v. Dullav Panda

:- Union Territory of Goa v. B.D’souza and others

:- Sanjay alias Kaka v. State of Delhi

:- Limbaji and Others v. State of Maharashtra

:- Avtar singh v. State of Maharashtra

:- Rony alias Ronald james alwaris v.State of Maharashtra

:- Milkhi Ram v. Milkhiram,

:- Lalsa v. Upper District Judge,Basti

:- Harihar Banerjee vs. Ramshashi Roy

What is a presumption:-
Presumption is an inference of fact drawn from other known or proved facts. It is
rule which treats an unknown fact as proved on proof or admission of certain other
fact. It means a rule of law that courts shall draw a particular inference from a
particular fact or from particular evidence, unless and until the truth of such
inference is disproved.
Presumptions help in determining the probative force of evidence by bringing the
estimation of probative force under some inflexible rules excluding judicial
discretion.
According to Black law dictionary Presumption is an inference in favor of a
particular fact. A presumption is a rule of law, statutory or judicial, by which
finding of a basic fact gives rise to existence of presumed fact, until presumption is
rebutted.

SECTION 4 OF INDIAN EVIDENCE ACT 1872:-

“May presume”- Whenever it is provided by this Act that the Court may

presume afact,it may either regard such fact as proved, unless and until t is 
disproved, or may call for proof of it.

“Shall presume”- Whenever it is directed by this Act that the Court shall

presume a fact, it shall regard such fact as proved, unless and until it is
disproved.
“Conclusive proof”-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.

CLASSIFICATION OF PRESUMPTIONS:-
The following are classification of presumptions:

1. Presumptions of Fact or Natural Presumptions:-

These are inferences which the mind naturally and logically draws from given
facts without the help of legal directions. Such inferences are drawn not by virtue
of any rule of law, but by the spontaneous operation of our reasoning faculty.
These presumptions fall more properly within the province of logic and do not
constitute a branch of jurisprudence. They are always permissive, rebuttable, and
Do not constitute a branch of Jurisprudence. They are indicated in the Act by the
expression ‘may presume’.
Sections 86 - 88, 90,, 113A and 114 lay down the provisions relating to
Presumption of Fact or Natural Presumptions  as stated below. these principles are
generally rebuttable.

Section 86.Presumption as to certified copies of foreign judicial records

Section 87.Presumption as to Books, Maps and Charts

Section 88.Presumption as to Telegraphic Messages

Section 90.Presumption as to documents thirty years old

Section 113A.Presumption as to abatement of suicide by a married women

Section 113B.Presumption as to dowry death

2. Presumptions of Law or Artificial Presumptions:-
Presumptions of law are those inferences which are said to be
established by law. It can be subdivided into
(a)-Rebuttable presumptions of law and,
(b)-Irrebuttable presumptions of law.
Rebuttable Presumptions of law are those presumptions of law
which hold good until they are disproved by evidence to the contrary.
Following are the Examples of this presumptions : 
Section 107.Burden of proving death of person known to have been alive within
thirty years.

Section 108.Burden of proving that person is alive who has not been heard of for
seven years.

Section 102.On whom burden of proof lies.

Irrebuttable Presumptions of Law are those presumptions of law
which are held to be conclusive in nature. They cannot be overturned by
any sort of contrary evidence however strong it is.

Following are the Examples of this presumptions : 

Section 115. Estoppel
Section 116. Estoppel of tenant and of license of person in possession

Section 117. Estoppel of acceptor of bill of exchange, bailee or licensee

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

Distinction between Presumption of Fact and Presumption of Law:-

No. Presumption of Fact/May Presumption of Law

Presume

1) Presumption of fact is based on Presumption of law is based on provisions of

logic, human experience and law law.
of nature.

2) The position of Presumption of The position of Presumption of law is certain

fact is uncertain. and uniform.

3) Presumption of fact is always The Presumption of law is conclusive unless

rebuttable and goes away when rebutted as provided under rule giving ruse
explained or rebutted by to presumption.
establishment of positive proof.

4) The court can ignore presumption The court cannot ignore presumption law.
of fact however strong it is.

5) The presumptions of fact are The presumptions of law are derived on

derived on basis of law of nature, established judicial norms and they have
prevalent customs and human become part of legal rules.
experience.

6) The Court can exercise its Presumption of law is mandatory.

discretion in drawing
presumptions of fact.
SECTION 114 OF INDIAN EVIDENCE ACT 1872:- 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—

(a) Presumption of possession of stolen goods:-  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;
(b) Accomplice:- That an accomplice is unworthy of credit, unless he is
corroborated in material particulars;
(c) Presumption as to Bill of Exchange:-That a bill of exchange,
accepted or endorsed, was accepted or endorsed for good consideration;
(d) Presumption of continuity of things :-That 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) Presumption of performance of judicial and official
Acts :-That judicial and official acts have been regularly performed;
(f) Presumption of transaction in usual course of business:-
that the common course of business has been followed in particular cases;
(g) Presumption of withholding evidence:- That evidence which
could be and is not produced would, if produced, be unfavourable to the person
who withholds it;
(h) Refusal to answer :-That 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) Presumption as to document in hand of obligator :-That
when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.

The course of conduct which the Section114 of Indian Evidence Act terms
as ‘common’ can only be that which is the most common in the experience of the
judge who has to decide the point. The conduct of animals as dogs, are not
admissible under this section.
 In Miss Srumoyu Ghosh v. State of West Bengal and Others1, it was held
by Calcutta High Court that if a student obtained good marks in earlier
examination, this cannot be the basis to presume that she or he would get the same
marks in the subsequent examination. Good performance in earlier examination
cannot be the ground for revaluation in subsequent examination.
In Bhagban Panda v. Dullav Panda2, there was presentation of suit for
partition. Defendant alleged that there was partition before the present suit.
There being no evidence that the land in possession was self-acquired by
defendant father, family will be presumed to be joint Hindu family.

If Live-in-relationships between the parties continue for a long time, it

cannot be termed as “walk in and walk out3” relationship. The presumption of
marriage arises between them.

The application of the section114 of Indian Evidence Act is very wide. In a

criminal case the burden of proof always lies on the prosecution, for the accused
is to be presumed to be innocent.

In the case of Union Territory of Goa v. B.D’souza and others4, the accused
was unable to give any evidence about the stolen things. The presumption can be
made under section 114. The accused were guilty under section 411, of Indian
Penal Code. But from the fact that the stolen article was recovered from the
accused after one month of theft, it shall not be presumed that the accused had
committed murder.

In Sanjay alias Kaka v. State of Delhi5, the recoveries of stolen property were
made from the accused consequent upon their disclosure. Statement did not
offer any explanation regarding possession of stolen property. Thus drawing
presumption under section 114 of evidence act, it can be safely heldpersons were
guilty of offence of robbery. Similarly, recent and unexplained possession of

1
AIR 1996 Cal.01
2
AIR1991 Ori66
3
Madan Mohan Singh V. Rajni Kmat, AIR 2010 SC 2933
4
AIR 1993 SC.1199
5
AIR2001 SC.979
stolen property could be taken as presumptive evidence of charges of murder as
well.

In Limbaji and Others v. State of Maharashtra6, it was held by Supreme Court

that in circumstances of recovery of incriminating articles within reasonable time
after incident at the places pointed out by accused, the presumption as to
commission of offence by accused can be drawn.

In Avtar singh v. State of Maharashtra7, the bags containinjg poppy husk were
seizedfrom the vbehiucloe in which accuseed were travelling. The accused was
driving the vehicle. The other two were sitting on the bag. Failure to explain the
circumstances in whiuch they were travelling at wee hours is circumstances
against the accused. But in absence of any examination of the accused on
querstion of possession, the presumption that baccused were in possession of
poppy husk cannot be raised.

In Rony alias Ronald james alwaris v.State of Maharashtra8, there was recovery
of articles belonging to deceased famuily from possession of accused,soon after
the incident./Possession remained unexplained by accused.So presumption under
illustration(a) of Section 114 was held to be attracted.The case involved murder
and robbery found to be part of the same transactyyion.Thus it would ber
concluded that accused and not else had committed murder and robbery.

In Milkhi Ram v. Milkhiram9,the proof of long cohabitation of persons mother

with his father was established by oral as well as documentray
evidence.Held,there would presumption of valid wedlock.

In Lalsa v. Upper District Judge,Basti10, parties were always treated as husband

and wife.The deceased husband was railway employee.The deceased husband
has acknoeledged female as wife by making declaration in various forms and

6
AIR 2002 SC491
7
AIR 2002 SC 3343
8
AIR 1998 SC 1251
9
AIR 1996HP 116
10
AIR 1999 All. 342
documents maintained by railways.Parties were living together for four
years.Therewas concurrent finding by courts below as to relationship. Omission to
mention female as wife of concerned employee in family register cannot be
treated as clinching evidence to deny the status of wife to female in question.
In several cases, the Indian Judiciary has been confronted with the issue of
presumption of service by registered post. One of the earliest cases which
recognized the concept of presumption of service by registered post under
section 114 of the act is the case of Harihar Banerjee vs. Ramshashi Roy11.
In this case, the Court held that there can be a presumption of receipt of a
letter sent under postal certificate in view of the provisions of Section 114(f) of

the Act. Sub clause (f) of Section 114 states that the Court may presume “that
the common course of business had been followed in particular cases.”

11
AIR 1918 PC 102
Conclusion
The effect of this presumption is to make it perfectly clear that Courts of Justice are to
use their own common sense and experience in judging the effect of particular facts,
and that they are to be subject to particular rules whatever on the subject. From certain
fact or facts the court can draw an inference and what would remain until such inference
is either disproved or dispelled. It shows on whom burden of proof lies. According to
Section 114 it is duty of the court to discern the truth and to arrive at finding with
reasonable certainty.

Presumption can only be raised where they are permitted under the law and such a
presumption is not permitted by any of the provisions of the Evidence Act or any other
law.

In some circumstances the court may draw adverse inference. The adverse inference
can be drawn against the party who had knowledge of material factor of the case and
has not entered in witness box without sufficient reasons.

BIBLIOGRAPHY
Websites Reffered

1:- www.srdlawnotes.com

2:- www.shareyouressays.com

3:- www.scribd.com

4:- www.lawteacher.net

Books Reffered:-
1:- The law of evidence by Batuk Lal

2:- Principle of Law of Evidence by Avtar Singh