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evidence_law:presumption

Presumptions

Introduction

Section 4 of the Indian Evidence Act; 1872 provides for three types of presumptions namely, May Presume, Shall Presume and conclusive Proof. It runs as follows:

May Presume:– Whether 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 the 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.

Evidence is a “means“ to arrive at proof. Proof is a process by which truth or falsehood as to fact is convinced. Proof enables a reasonable man to come to a conclusion. Before analyzing the expressions, May Presume, Shall Presume and Conclusive Proof, it is necessary to fathom the meaning of ‘presumption’, from which the above expressions are emerged.

Presumption: – In the absence of absolute certainty, we resort to presumptions. The word “presume” means “supposed to be”. The word “presumption“ means “an inference from known facts”. “Presumption“ is and inference, which takes place in the absence of absolute certainty as to truth or falsehood of a fact. In other words, presumption is an inference drawn by the court as to the truth of a particular, from other known or proved facts.

Definition

The term “Presumption”, in its largest and most comprehensive signification, may by defined to be an inference, affirmative or disaffirmative of the truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning from something proved or taken for granted.

For instance, A finds B’s scooter in front of a, restaurant. Then, A may presume that B is in the restaurant. When A entered into the restaurant, he found B, then his presumption is correct/ true. Instead of B if C (B’s brother) is found, his (A’s) presumption is incorrect/ wrong. Thus, presumptions may be true or untrue. In other words, they may be rebuttable (may be challenged or irrebuttable (cannot be challenged).

Classification of Presumption

Presumptions may be classified as follows:

  • Presumption of Fact or Natural Presumption or May Presume (Section 86–88, 90, 113A and 114)
  • Presumption of Law or Artificial Presumption–
    • Rebuttable Presumptions of Law or Shall Presume (Section 79–85, 105, 111A, 113B and 114A)
    • Irrebuttable Presumptions of Law or Conclusive Proof (Section 41, 112 and 113)

May Presume or Presumption of Fact or natural Presumption

Section 86–88, 90, 113A and 114 lay down the provision relating to Presumption of Fact or Natural Presumption or May Presume as stated below:

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 abetment of suicide by a married woman”
Section 114 “Court may presume existence of certain facts”

The expression “may presume“ refers to discretion of the court as to the existence or non-existence of a fact in issue. For instance, when a person is found in possession of stolen property, the court may presume him as thief or has received such goods with the knowledge that they are stolen (Section 114).

According to Section 4 of the Evidence Act, “may presume” a fact mean (a) regard it as proved unless and until it is disproved, or (b) call for proof of it. In the above example, the court has discretionary power either to presume the possessor (of stolen property) as thief; or may presume that he had received such goods with the knowledge that they are stolen or may refuse to presume the guilt of accused and may ask (direct the prosecution to prove the guilt of the accused). These presumptions are generally rebuttable.

Shall Presume or Rebuttable Presumptions of Law

Section 79–85, 89, 105, 111A, 113B and 114A lay down the provisions relating to “Rebuttable Presumptions or Shall Presume” as stated below: | Section 79 | “Presumption as to genuineness of certified copies” |

Section 80 “Presumption as to documents produced as record of evidence”
Section 81 “Presumption as to Gazettes, newspapers, private Acts or Parliament and other documents”
Section 82 “Presumption as to document admissible in England without proof of seal or signature”
Section 83 “Presumption as to maps or plans made by authority of Government”
Section 84 “Presumption as to collection of laws and reports and decisions”.
Section 85 “Presumption as to powers-of-attorney”
Section 89 “Presumption as to due execution, etc., of documents not produced”
Section 105 “Burden of proving that cause of accused comes within exceptions”
Section 111A “Presumption as to certain offences”
Section 113B “Presumption as to dowry death”
Section 114A “Presumption as to absence of consent in certain prosecution for rape”

According to Section 4 of the Evidence Act, the Court has no option or discretionary power in drawing a presumption as to the existence or non-existence of a fact in issue. The Court is bound to regard a fact as proved, unless an evidence is produced to disprove it. However, (rebuttable presumption of law) “shall presume‟ is not conclusive, but only rebuttable. Section 79 directs that when a certified copy of a public document is produced, the Court shall presume that the certifying officer held that official character when the copy was certified. The Court cannot call for evidence to disprove this fact but the opposite party still has privilege to disprove that he held that official character.

For Example: – The Court presumes the genuineness of every document purporting to be the official Gazette (u/s 81 of Evidence Act). Similarly, the court shall presume the accuracy or genuineness of the maps and plans made by the Government authority (u/s 83 of Evidence Act).

Conclusive Proof or Irrebuttable Presumptions of Law

Section 41, 112 and 113 of the Indian Evidence Act, 1872 lay down the provisions relating to “Conclusive Proof or Irrebuttable of Law” as stated below:

Section 41 “Relevancy of certain judgments in probate, etc. Jurisdiction”
Section 112 “Birth during marriage, conclusive proof of legitimacy”
Section 113 “Proof of cession of territory”

According to Section 4 of the Evidence Act, when one fact is declared by the Evidence Act to be conclusive proof of another, the court, on proof of that fact must regard the other having been proved and it (court) shall not permit any kind of evidence for the purpose of rebutting or disproving that fact. In other words, when a fact is proved to be conclusive under evidence Act, the court must confirm it as conclusive and shall not permit/entertain any evidence for the purpose of disproving that fact. In such words, neither the court has discretion to call for evidence nor the party has the privilege to disprove it. Even if the party seeks to disprove it, the court has a duty, not to allow evidence for that purpose.

For Example: – ‘A’ and ‘B’ are married but divorced. When the question arises whether ‘A’ and ‘B’ are husband and wife, if the decree of divorce is submitted to the court, the court shall conclusively presume that they are no longer husband and wife from the date of such decree for divorce. In this example, the divorce decree is regarded as conclusive proof.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
  • E-mail: adv.abhishek3995@gmail.com


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Created on 2020/12/13 23:15 by Japhin Raj • Last modified on 2021/04/09 22:12 (external edit)