MAY PRESUME

SHALL PRESUME
CONCLUSIVE PROOF
Sec 4
SECTION 4 – MAY PRESUME,
SHALL PRESUME and
CONCLUSIVE PROOF
◻ “May presume”.—Whenever it is provided by this Act
that the 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.
◻ “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.
Presumption
◻ A presumption means ‘things taken for granted’.
◻ It is an inference of fact drawn from other known or
proved facts.

◻ General rule: No court can, while deciding a case,

place reliance on a fact unless and until it has been
proved according to the rules laid down in the Evidence
Act.
◻ But the law of evidence has provided that a court can
take into consideration certain facts even without
calling for proof of them i.e., the court may presume
certain things.
◻ A presumption means a rule of law that Courts and Judges
shall draw a particular inference from a particular fact, or
from a particular evidence, unless and until the truth of
such inference is disproved.

◻ Presumptions are devices by use of which the courts are

enabled and entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient
evidence.
◻ It literally means ‘taking as true without examination or
proof’.
◻ A presumption is not in itself evidence, but only makes
prima facie case for a party for whose benefit it exists.
◻ “May presume”.—Whenever it is provided by this
Act that the 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 – leaves it to the discretion of the

court to make the presumption according to the
circumstances of the case.
◻ “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.

◻ Shall presume – leaves no option with the court

not to make the presumption. The court is bound
to take the fact as prove until evidence is given to
disprove it, in sense such presumption is also
rebuttable.
◻ “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.

◻ Conclusive proof – gives an artificial probative effect

by the law to certain facts. No evidence is allowed to
be produced with a view to combating that effect. In
this sense, this is ‘irrebuttable presumption’.
 KINDS OF PRESUMPTION
According to English Law, a presumption can be of two kinds -
presumption of fact and presumption of law.
Presumption of Fact or Natural
presumptions
◻ Presumption of fact is those presumptions or inferences
about things or events that are naturally drawn from
the observation of the course of nature and the
constitution of the human mind. They are always
permissive, rebuttable and do not constitute a branch of
jurisprudence.
◻ Such as, presumption that a man with blood stained
clothes and a knife in his hands is the
murderer. Such presumptions are rebuttable from
further evidence.
◻ They are indicated in the Act by the expression ‘may
presume’. (Ss. 86-88, 90 and 114)
Example
◻ Sec 114 - Court may presume existence of certain facts.
◻ 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) 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;
◻ In the case of Union Territory of Goa v. B. D. D’Souza and others, 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, I.P.C (dishonestly receiving stolen property). 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.
Presumption of Law or Artificial
presumptions
◻ Presumption of law are arbitrary consequences that
are annexed by law to particular facts. They are
legal fiction. They may not be same as the
inferences that we may ordinarily draw but the law
prescribes that such inference may be drawn.
◻ They are always obligatory,
◻ They may take the form of either being
rebuttable or irrebuttable and constitute a branch
of jurisprudence.
 Artificial presumptions are further
divided into:
◻ 1. Rebuttable presumption – are those legal rules which can be
overcome/explained away/rebutted by any evidence to the contrary,
but are conclusive in the absence of such evidence.
◻ Thus the burden of proof lies on the opposite party.
◻ They are indicated in the Act by the expression ‘shall presume’.
◻ There is a presumption that a person who has not been heard
from for seven years is dead.
◻ This presumption is rebuttable by showing evidence. Sections 79 to
85, 89, 105, 107, 108 are examples of this presumption.
◻ Presumption is rebuttable. If there is any such circumstance
weakening such presumption, it cannot be ignored by the court;
Sobha Hymavathi Devi v. Setti Gangadhara Swamy, AIR 2005 SC
800.
Example
◻ Sec 84 - Presumption as to collections of laws and reports
of decisions.
◻ The Court shall presume the genuineness of every book
purporting to be printed or published under the authority of
the Government of any country, and to contain any of the
laws of that country, and of every book purporting to contain
reports of decisions of the Courts of such country.

◻ Sec 89 – Presumption as to due execution, etc., of

documents not produced.
◻ The Court shall presume that every document, called for and
not produced after notice to produce, was attested, stamped
and executed in the manner required by law.
◻ 2. Irrebuttable presumption or conclusive presumption –
are those legal rules which cannot be overcome by any
evidence that the fact is otherwise. They are indicated in the
Act by the expression ‘conclusive proof’.
◻ For example:
◻ The presumption that a child below seven years of age is
not capable of committing a crime cannot be rebutted.
Law presumes the age of the child as a conclusive proof of
his innocence –
◻ Sec 82 of the IPC : “Nothing is an offence which is done by
a child under seven years of age”.
◻ Other examples of irrebuttable evidence are Sections 41, 112
and 113 and 115, 116, and 117 of the Act that deal with
Estoppel.
Example
◻ Sec 115 - Estoppel
◻ When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a
thing to be true and to act upon such belief, neither he nor
his representative shall be allowed, in any suit or proceeding
between himself and such person or his representative, to
deny the truth of that thing.
◻ Illustration
◻ A intentionally and falsely leads B to believe that certain
land belongs to A, and thereby induces B to buy and pay for
it. The land afterwards becomes the property of A, and A
seeks to set aside the sale on the ground that, at the time of
the sale, he had no title. He must not be allowed to prove his
want of title.
DIFFERENCE BETWEEN
PRESUMPTION OF FACT AND
PRESUMPTION OF LAW
PRESUMPTION OF FACT PRESUMPTION OF LAW

◻ BASIS
◻ PoF is based on logic, ◻ PoL is based on provisions
human experience and law of law.
of nature.
◻ It may or may not be
◻ REBUTTABLE rebuttable.
◻ PoF is always rebuttable ◻ PoL is conclusive unless
when rebutted by rebutted as provided under
establishment of positive the rule giving rise to the
proof. presumption.
DIFFERENCE BETWEEN
PRESUMPTION OF FACT AND
PRESUMPTION OF LAW
PRESUMPTION OF FACT PRESUMPTION OF LAW

◻ POSITION ◻ The position of PoL is

◻ The position of PoF is certain and uniform.
uncertain and ◻ For instance, all
transitory, thus persons charged with
depending upon the crime are presumed to
be innocent unless
facts of the case.
proven guilty. Here the
condition is fixed and
uniform.
DIFFERENCE BETWEEN
PRESUMPTION OF FACT AND
PRESUMPTION OF LAW
PRESUMPTION OF FACT PRESUMPTION OF LAW

◻ IGNORE ◻ The Court cannot

◻ The court can ignore ignore PoL.
PoF, however strong it
is.

◻ DISCRETION ◻ The court is bound to

◻ The court can exercise draw a PoL, it is
its discretion while mandatory.
drawing a PoF.
MIXED PRESUMPTIONS
◻ MIXED PRESUMPTIONS or presumptions of law
and fact, lie in-between the above two, and consist
mainly of certain presumptive inferences which
attract the observation of the law.
◻ Mixed presumptions of law and fact are mainly
confined to the English law of real property so it
is not necessary to peruse the subject here.
Presumption and Proof
◻ “Proof” is that which leads to the conclusion as to
the truth or falsity of alleged facts which are the
subject of inquiry.
◻ Proof may be effected by
◻ (1) evidence,
◻ (2) admissions, or
◻ (3) judicial notice.
◻ Thus, presumptions are the means, and proof is the
end, of judicial inquiry. Presumption is merely an
inference. When a rebuttable presumption operates in
favour of a party, it is for the opponent to disprove it by
adducing evidence to the contrary.