This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains all the aspects of Section 114 of the Indian Evidence Act; and the classification, as well as, differences between the different types of presumptions. 

It has been published by Rachit Garg.

Introduction

Section 114 of the Indian Evidence Act, 1872 empowers the courts to presume the existence of certain facts taking into consideration the common course of natural events, human conduct, and public and private business with relation to the facts of the case at hand. The presumption is an important legal tool that allows the judges to draw out inferences from the shreds of evidence and facts available unless they can be disproved. 

This article talks about Section 114 and explains the scope and extent of legal presumptions, as outlined in the Section. 

Section 114 of the Indian Evidence Act 

Section 114 outlines the powers of the courts in terms of presuming certain facts that are likely to have happened, with due consideration being given to the ‘common course of natural events, human conduct and public and private business’, as connected to the facts of the specific case. 

As per the illustrations mentioned, the court has the liberty to presume the following:

  1. If a person is found in the possession of stolen goods immediately after the theft has occurred, then that person is presumed to be either the thief or has received those goods with the knowledge that they are stolen, unless he can prove otherwise.

But the court must take into consideration all the factors. Unexplained possession of the stolen goods may create a strong presumption. But the fact of recovery must be proved beyond a reasonable doubt. The burden of proof lies on the accused to prove his innocence. 

  1. An accomplice is presumed to be unworthy of credit unless he can be corroborated in a material particular.

An accomplice is someone who is actively involved in the commission of a crime or the guilty associate. Corroboration can flow out from direct, indirect or circumstantial evidence. Evidence of a co-accused does not carry much weight against the accomplice unless it can be corroborated by any other evidence. 

  1. A bill of exchange, when accepted or endorsed, is presumed that was accepted or endorsed for good consideration.

A bill of exchange is a formal document or order in writing that binds one party to another to pay a fixed amount of money when demanded or at a pre-fixed date. This presumption assumes that all things are done the way they ought to be. Thus, when a bill of exchange is endorsed or accepted, it is done for good consideration. But the contrary could also be true and the court must look into all the factors before arriving at the final conclusion. 

  1. When it is shown that a thing or state of things has been in existence for a period shorter than the one within which such things or state of things usually stop existing, it is presumed that it is/are still existing.

It could be illustrated by the example that when an ancestral property has been in the family for generations, it will be presumed that it will continue to pass on to the coming generations unless the opposite is proved in the court of law. It implies that when a thing has followed its natural course for a considerable period of time, it is presumed that it will continue to do so unless evidence is presented that suggests the contrary. 

  1. It is to be presumed that all the judicial and official acts prescribed are performed regularly.

This presumption is similar to illustration (c) where it is presumed that the things prescribed are done in the right way and regularly. Thus, it is presumed that the judicial and official authorities have been doing the functions assigned to them regularly and correctly. For example, if a court has heard the case and given its judgment, it is presumed that it is done rightly. But the presumption can be rebutted by evidence that suggests that the work has not been done correctly or regularly. 

  1. It is presumed that in specific cases, the common course of business has been adopted as is usually done.

This provision can be better explained when read with Section 16 of the Indian Evidence Act. This Section talks about the importance and relevance of the natural course of business, whenever a particular act was done is in question. So when a letter that was dispatched was in question, the fact that it was put into the natural course of transmission is relevant. It is presumed that it will follow the common course of business as it is usually adopted. 

  1. If a piece of evidence could be presented but has not been presented, it is presumed that if presented, it would be unfavourable to the person who has been withholding it.

In this case, it is presumed that the person withholding the evidence does so because the evidence may be against him. For example, when the anti-adulteration authorities refuse to present the sample to be submitted, it can be presumed that there might be something in the sample that might provide evidence against them. 

  1. If a man refuses to answer a question, which he is not bound by law to do so, it is to be presumed that if it is answered, it would not be in his favour.
  2. If the document creating an obligation is found in the hands of the obligor, then it is presumed that the obligation has been discharged.

But not in all the above-mentioned cases, the presumption can be accepted as being final. Court has to consider all the facts carefully to assess whether the illustrated maxims can be applied or not. It is explained by the following examples:

  1. Where stolen money is found with a shopkeeper soon after it was stolen and he cannot account for its possession specifically, but it is in the usual course of business for him to receive money continually. 
  2. When a person A of good character is tried for causing a man’s death due to negligence in arranging certain machinery. Also, B, another person involved in the arrangement, of equally good character explains in detail what exactly was done and even admits the carelessness that caused the accident. 

In another case, a crime is committed by several persons, and the three of them, i.e., A, B and C are caught at the crime scene. When investigated separately, all three give accounts that implicate D and these accounts are also corroborated with each other in such a manner that renders the previous concert highly improbable. 

  1. A bill of exchange was given by A, the drawer, a man of business to B, the acceptor who was a young and ignorant person, and completely under A’s influence.
  2. In a situation where a river ran a certain course five years ago but is prone to changing its course due to recurrent floods since that time.
  3. When a judicial act under scrutiny for its irregularity was performed under exceptional circumstances. 
  4. When it is in question whether the letter was received, it is shown that it has been delivered but the usual course is disrupted by some disturbances. 
  5. A man may refuse the presentation of documents bearing on a contract of minute significance in the case in which he is sued, as the presentation of documents might harm the reputation of his family or hurt their feelings. 
  6. A man may refuse to answer questions asked to him which he is not bound to answer as answering them might cause him a loss in matters that are completely not related to the present matter at hand. 
  7. The obligor might possess a bond, though it may have been acquired by theft. 

In all the above-mentioned instances, it is shown that the validity of legal presumptions illustrated above can be questioned and they may not be the final conclusions. 

Cases related to the validity of legal presumption under Section 114 of the Indian Evidence Act, 1872

This issue has been further clarified in a slew of several judgments decided by the courts.

  1. It was held in Tulsa v. Durghatiya (2008 (4) SCC 520) that if the partners have lived together for a considerably long period as husband and wife, it will be presumed that they are married. But this presumption is rebuttable and the burden of disproving it lies on the person who challenges the validity of the legal origin of the marriage. 
  2. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy (AIR 2005 SC 800), it was observed that a presumption can be rebutted. Also, any circumstance weakening a given presumption ought not to be ignored by the court. 
  3. It was laid down in Lalta v. District IVth upper Distt. Judge Basti (AIR 1999 All 342), that the mere omission of the husband and wife relation from the family register is no clinching evidence to deny their relationship if there is oral and other reliable evidence satisfactorily proving that the couple lived together as husband and wife.
  4. It was highlighted in Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad (AIR 1999 Guj 108), that the onus of proving a document to be correct and genuine lies on the person believing it to be so through cogent and direct evidence. 
  5. Supreme Court declared in Mukund alias Kundu Mishra v. State of Madhya Pradesh ((1997) 4 Supreme 359), that in a case where a person is found in the possession of stolen goods, it can not only be legitimately presumed by the court that he committed the robbery but also that the murder was committed by him. 
  6. In Vasant alias Roshan Sogaji Bhosale v. the State of Maharashtra ((1997) 2 Crimes 104 (Bom)), it was held that if the recovery is made some days after the dacoity has taken place, then it cannot raise a valid presumption under Section 114(a) of the offence of dacoity. 

Presumption by the court under Section 114

This Section has placed discretionary powers in the hands of the court to presume certain facts from the existing circumstances of the case that can reasonably guide us towards a valid conclusion. It is pertinent to note that it is not mandatory to do so. Presumptions can be deduced from the prevailing facts and conditions, albeit not from other presumptions through logical reasoning and a balance of probabilities. Also, presumptions are conclusive evidence and must be made within the ambit permitted by law. They may be rebutted by the evidence produced by the person on whom the onus lies. It is on the court to carefully look through all the facts presented and take a reasonable and informed decision. 

Main elements of forming a presumption 

Broadly, the Section outlines three main elements of forming a presumption. These are- 

  1. Common course of natural events

A presumption must be such that it conforms to the natural course of events, depending on the facts and circumstances of the case.

  1. Human conduct

It is the conduct that is natural to a human being, capable of rational judgment between what is right and wrong. The expression of the conduct could be positive or negative, characterized by the situation. 

  1. Public and private business

A presumption can flow out of the ordinary course of public and private business, where it is presumed that an event will take place as is regularly conducted. 

Classification of presumptions

Broadly, the presumptions can be classified into two categories- 

  1. Presumption of Fact
  2. Presumption of Law

What is presumption of facts

Also known as material or natural presumptions, presumptions of fact can be derived from the reasonable observation of the circumstances that flow naturally from the usual course of human conduct. They are based on circumstantial evidence wherein inferences can be drawn out from various facts of the case that make reasonable sense. They are generally rebuttable in nature. 

When can the courts use presumption of facts

Instances, where natural presumptions or presumptions of facts can be used by the courts, are found in the following sections of the Indian Evidence Act. 

  1. Section 86 covers the presumption as to certified copies of foreign judicial records.
  2. Section 87 includes a presumption in the matters of books, maps and charts.
  3. Presumptions related to telegraphic messages are included in Section 88
  4. Presumptions as to documents that are purported or proved to be thirty years old are covered in Section 90. 
  5. Section 113A lays down the rule on presumption as to abetment of suicide by a married woman within seven years from the date of her marriage and that she was subjected to cruelty by her husband or his relatives in line with Section 498A of the Indian Penal Code. 
  6.  Section 113B deals with presumption as to dowry death. In all of these instances, it is laid down that the court “shall presume” certain facts inferred from the given circumstances of the case. Also, these are considered to be valid unless challenged and proved to be wrong. 

What is presumption of law

Presumptions of law include such inferences and conclusions that can be derived from the law itself. It is further classified into- 

  1. Rebuttable presumptions- These are such presumptions that can be inferred by the courts under the law, even though there may not be sufficient proof of believing it to be so. However, if sufficient evidence can be presented to disprove it, the court is bound to reject it. 

Example: Under the law, a person who has not been heard alive for seven years or more by people who would naturally have heard of him is presumed to be dead by the law. However, the contrary can also be true and proved in court. 

  1. Irrebuttable presumptions- Also known as conclusive presumptions, they are considered to be final and irrebuttable by law, even though the facts could prove otherwise. 

Example: A child below the age of seven is presumed to be incapable of committing a crime and understanding the consequences of his act. It is considered to be final and no evidence can be presented that can suggest otherwise. 

When can the courts use presumption of laws

Examples, where courts can employ the usage of presumption of law, may include the following instances:

  1. Presumption of innocence- A person is deemed to be innocent unless it can be proved with evidence that it is not so. Thus, the burden of proof lies on the person alleging the facts to be true and not on the one denying them. It was observed by the Supreme Court in the State of Maharashtra v. Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199) that the accused is always presumed to be innocent in a criminal trial until the prosecution can prove his guilt. Thus, the burden of proof always lies on the prosecution and never shifts. 
  2. Doli incapax- Mentioned in Section 82 of the Indian Penal Code, it lays down that no act committed by a child below the age of seven years is an offence. In the English case of Marsh v. Loader ( (1863) 14 CBNS 535), the accused was a child of below seven years and was caught stealing a piece of wood from the defendant’s premises. However, the child was discharged following the principle of doli incapax.
  3. Presumption of death- As mentioned in Section 107 and 108 of the Indian Evidence Act, a person who has not been heard alive for seven years or more by the people who would have naturally heard of it is presumed to be dead by the law, unless it can be proved otherwise. 
  4. Birth of a child during marriage- Section 112 of the Indian Evidence Act states that any child born during the continuance of marriage between the mother and any man, or within 280 days after its dissolution is conclusive proof that the child is legitimate unless evidence can be presented to prove the contrary. 

Can the courts use presumption of law and presumption of facts at the same time

Presumption of facts and law can be used at the same time and such presumptions are known as mixed presumptions. They are majorly used in the English law of real property but have a limited scope in Indian law. The Indian Evidence Act consists of numerous provisions that outline the use of presumptions of facts and law. At times, a presumption may be derived from another fact that can be disproved on evidence or can be conclusively taken to be true with no evidence admissible to disprove it. Thus, in certain instances, courts may need to employ both the presumptions together to reach a reasonable conclusion. 

Difference between presumption of facts and presumption of law

Presumption of facts Presumption of law 
These presumptions are derived from the facts of the situation itself. These presumptions are adopted by the courts as per the law, regardless of any evidence proving the same. 
They are rebuttable and can be derived from any evidence presented to suggest the contrary. They are of two types- rebuttable and irrebuttable. The latter cannot be disproved even by evidence suggesting the contrary, while the former can be. 
Court has discretionary powers to presume or not to presume certain facts from the circumstances of the case. Courts do not have any discretionary powers and they are bound by the law to do so. 
Example: Presumption of foreign judicial records, presumption of books, maps and charts, etc. Example: Doli incapax, presumption of innocence, etc.

May presume 

“May presume” as mentioned in the first clause of Section 4 of the Indian Evidence Act is a discretionary power given to the courts. They may also be called presumptions of fact or natural presumptions. As per the Act, the court may presume a fact as to be true unless and until it is proved otherwise, or it may call for proof of it. Thus, ‘may’ here denotes a weaker form of presumption, i.e. it may or may not be presumed to be so. 

Example: The court may or may not presume that the judicial and official acts are performed regularly. 

In Hans Raj v. the State of Haryana (MANU/SC/0174/2004), the question was raised concerning the presumption mentioned under Section 113A, which is regarding the abetment of suicide of a married woman. The Court here clarified that the presumption mentioned in this Section is a ‘may presumption’, i.e. it is dependent upon the discretion of the court. The presumption cannot be adopted merely on the basis of the fact that the suicide was committed within seven years of marriage and had been subjected to cruelty by her husband. It does not automatically give rise to the presumption of abetment. It ‘may’ be strengthened by the circumstantial evidence. The court must look into the circumstances and the words ‘the other circumstances of the case’ in the Section denote the need for the court’s supervision in deciding whether the presumption can be adopted in the case or not. It was observed that there must be a cause and effect relationship established between cruelty and suicide, and then the presumption may be raised. This is the essence of the ‘may presumption’ where the court’s discretion depending upon the particular facts of the case determine whether the presumption can be raised or not. 

Shall presume 

Covered by the second clause of Section 4 of the Act, shall presumptions are also called the presumptions of law. They suggest a strong assertion that does not give discretionary powers to the court. Instead, it binds the court to presume a fact mandatorily, though it may be rebutted. The Act prescribes that the court ‘shall’ presume a fact as proved, unless and until it is disproved. 

Example: The court ‘shall’ presume a person to be dead if he has not been heard alive for seven years or more by persons who would have naturally heard of it, unless and until it can be disproved. 

In Maya Devi and Ors. v. the State of Haryana (MANU/SC/1398/2015), the Court held that Section 113B, which is related to the presumption of dowry death, is a ‘shall’ presumption. Thus, it leaves the court with no other option but to presume that when the ingredients of Section 113B are fulfilled by reasonable and reliable evidence, such death ‘shall’ be deemed to be dowry death caused by the husband or his relatives. In the eyes of the court, the redeeming factor here is that this presumption is rebuttable. The accused must produce proof of his innocence and that the deceased’s death was caused by natural factors in order to rebut the presumption. Therefore, it is a ‘shall’ presumption where the court is obliged to presume it in the presence of ingredients determined by the provision. But it is rebuttable by presenting the evidence supporting the contrary. 

Conclusive proof

Conclusive proofs are considered as final and cannot be rebutted by any evidence suggesting the contrary.

Example: Section 113 of the Indian Evidence Act prescribes that when a notification is issued in the Official Gazette regarding the cession of territory to the native state, it is considered as conclusive proof of a valid cession that occurred on the mentioned date in the notification. No evidence can disprove this final conclusion. 

In the case of Smt. Sonawanti and others v. the State of Punjab and others (MANU/SC/0034/1962), the Apex Court dismissed the distinction that is often established between ‘conclusive proof’ and ‘conclusive evidence’. It was observed that it is often contended that where a fact has been declared to be ‘conclusive proof’ by the law, then the court is precluded from considering any evidence suggesting the contrary once such a conclusion is established. Thus, where a fact has been made out as conclusive proof of another fact and it is established to be true, then the court is supposed to proceed further considering it to be final. On the other hand, where the law makes a fact the ‘conclusive evidence’ of another fact, then the possibility of presenting another evidence proving the contrary is not shut out. However, this argument was rejected and it was declared that there was no difference between ‘conclusive proof’ and ‘conclusive evidence’, both suggesting a final conclusion to be adopted by the court. 

Tracing the difference between may presume, shall presume and conclusive proof

May Presume Shall Presume Conclusive Proof 
Mentioned in the first cause of Section 4, may presumptions provide a discretionary power to the courts to presume a fact as true unless proven otherwise, or call proof for it. It is a presumption of facts and rebuttable. Mentioned in the second clause of Section 4, it puts an obligation on the courts to presume a certain fact to be true, unless and until it can be disproved by substantial evidence. It is presumption of law and compelling. Conclusive proofs provide no room for disproving a fact, even if the evidence suggests the opposite. Whenever it is prescribed by the law, the courts are bound to treat it as the final conclusion with no need for any circumstantial or strong evidence. 

Conclusion 

Legal presumptions have been of tremendous help in promoting legal developments. They have helped in deducing certain facts from the circumstantial evidence present and made it easier for the courts. Section 114 of the Indian Evidence Act provides the right impetus in this direction. It outlines the powers of the courts to make certain presumptions based on the facts of the case flowing out from the usual course of things. 

Moreover, the Section relies on natural events, human conduct and public and public and private business. It draws out natural facts from them and declares them as ‘presumptions’ to be adopted by the court, though they are mandatory or discretionary. Thus, the Section lays down the foundation of presumptions that can be found dispersed among other laws and used from time to time.  

References 

  1. V.D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY (5th ed. 1987). 
  2. https://crlreview.in/section-114-indian-evidence-act/ 

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