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.

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’.

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.
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.

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.

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.

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) 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) That an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
(d) 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) That judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it;
(h) 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) that when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case before
it:—
--As to illustration (a) — A shop-keeper has in his till a marked rupee soon after it
was stolen, and cannot account for its possession specifically, but is continually
receiving rupees in the course of his business;
--As to illustration (b)—A, a person of the highest character, is tried for causing a
man's death by an act of negligence in arranging certain machinery. B, a person of
equally good character, who also took part in the arrangement, describes precisely
what was done, and admits and explains the common carelessness of A and
himself;
--As to illustration (c)— A, the drawer of a bill of exchange, was a man of
business. B, the acceptor, was young and ignorant person, completely under A's
influence;
--As to illustration (d)—It is proved that a river ran in a certain course five years
ago, but it is known that there have been floods since that time which might change
its course;
--As to illustration (e)—A judicial act, the regularity of which is in question, was
performed under exceptional circumstances; 
--As to illustration (f) –– the question is, whether a letter was received. It is shown
to have been posted, but the usual course of the post was interrupted by
disturbances;
-- As to illustration (g) –– a man refuses to produce a document which would bear
on a contract of small importance on which he is sued, but which might also
injure the feelings and reputation of his family;
--As to illustration (h) –– a man refuses to answer a question which he is not
compelled by law to answer, but the answer to it might cause loss to him in
matters unconnected with the matter in relation to which it is asked;
--As to illustration (i) –– a bond is in possession of the obligor, but the
circumstances of the case are such that he may have stolen it.

The court may presume the existence of certain facts- If a fact is likely to have
happened in the common course of natural events according to general human
conduct, according to public and private business, in their relation to the facts of
the particular case, the court may presume the existence of such fact. “The effect of
this section coupled with the general repealing clause at the beginning of the act, is
to make it perfectly clear that the courts of justice are to use their own common
sense and experience in judging of the effects of particular facts, and that they are
to be subject to no technical rules whatever on the subject”. This section gives the
court very wide power.
If a fact must happen in the ordinary course of events the court may
presume it and the party denying its existence has to rebut it.
Common course of natural events:
This expression signifies that an event can take place only when certain circumstances
become favorable or unfavorable. What is most common depends upon the facts and
circumstances. For example, period of gestation, continuance of life etc.

Human conduct:
Human conduct means the conduct found only in human being who can judge what is
right and wrong. The expression of such conduct may either be positive or negative and
that can be determined by his actions. Example: if a man and woman are living as
husband and wife for a longtime, the presumption is they are married.

Public and private business:

It is a common presumption that everything is presumed to be rightly and regularly
performed until the contrary is proved. The address of a registered letter bears correct
address. Mere denial of receiving it was not enough. The presumption prevailed.

In order to presume certain fact the court under section 114 of the Evidence Act, has to
have regard to the common course of natural events, human conduct and public and
public business. “It is necessary that the common course of natural events, human
conduct and public and private business in so far as it relevant to the facts in issue in
particular case must be established.” If the alleged course of conduct unless established
cannot be made use of by the court for the purpose of arriving at decision under section
114 of the Evidence Act. Where a witness is not cross-examined over the matter of his
testimony, a presumption arises that his version has been accepted.

1. Presumption of possession of stolen goods [Illustration

(a)]:
The Illustration (a) is an exception to the general rule that the burden of proof always
lies on the prosecution. According to Illustration when a person was found in possession
of stolen goods soon after theft, it gives rise two presumptions viz.,

1-Either he is thief; or

2- He has received the goods knowing them to be stolen. Merit of the presumptions
depends upon various facts and circumstances of a case.

According to the Supreme Court all factors are to be taken into consideration in arriving
at a decision. Unexplained possession of stolen goods has been held to be sufficient to
create a presumption of guilt. “Where the Supreme Court raised only the presumption
from the recovery of stolen property that it was received with knowledge, but not that the
person from whose custody they have been recovered should be presumed to be also
the murderer of the woman to whom the articles belonged.”
The presumption can be drawn only if fact of recovery is proved beyond reasonable
doubt. Where the articles belonging to the victim are found in the possession of the
accused, the burden shifts to the accused to explain the same

2. Accomplice [Illustration (b)]:

The word ‘accomplice’ has not been defined in the Evidence Act. An accomplice means
a guilty associate in crime. He is one concerned with others in the Commission of a
crime. Illustration (a) lays down that an accomplice is unworthy of credit, unless he is
corroborated in material particular. It is absolute discretion of the court to raise any
presumption. “It is not necessary that there should be independent corroboration of
every material circumstance. All that is required is that the story of the accomplice is
true and that it is reasonably safe to act upon it.” When the evidence of the approver
corroborated by medical evidence the conviction of the accused under section 396, IPC
was held proper.

The corroboration need not be direct evidence. It is sufficient if it is merely

circumstantial evidence of the connection of the accused with the crime. It is unsafe to
act solely upon the evidence of co-accused unless it is corroborated in material aspects.

3. Presumption as to Bill of Exchange [Illustration (c)]:

All things are presumed to be rightly done. This maxim is also applicable to private
business. According to Illustration (c) the court may presume that a bill of exchange
accepted or endorsed was accepted or endorsed for good consideration. But this
section has authorized also that the court must have regard to other material facts for its
consideration. In considering all facts the court may presume a bill of exchange proved
until it is disproved.

4. Presumption of continuity of things [Illustration (d)]:

The presumption is that a thing or state of things existed within a period shorter than
that within which such thing or state of things usually ceased to exist, is still in
existence. it may be presumed that things remain where they were in original state.
When a person is in possession of certain property it may be presumed that his
possession continues unless his dispossession is proved. Property which was shown to
be ancestral would be presumed to continue in that state unless the contrary is proved.

5. Presumption of performance of judicial and official Acts.

[Illustration (e)]:
The presumption under this section, though it is optional is that when a judicial or official
Act has been done it may be presumed to be regularly done. The rule is based on the
maxim that all acts are presumed to be rightly and regularly done. The statement of
facts happened at the hearing and recorded in the judgment of the court is presumed to
be correct.

The Illustration (c) means that if an official act is proved to have been done, it would be
presumed to have been regularly done. Where official acts are regularly performed and
if satisfied that the action in question is traceable to a statutory power, the courts will
upload such state action.
 Similarly, same presumption is applicable to the official acts where the procedure
adopted by the selection committee was based on merits and marking was given
accordingly it was presumed that the official acts were genuine.

6. Presumption of transaction in usual course of business.

[Illustration (f)]:
Illustration (f) attaches a great evidentiary value to an act done in any general course of
business. The presumption is that the course of business is followed by the parties in
commercial transaction. If the letter correctly addressed was posted and that it did not
come back it may be presumed that in course of business it was received by the
addressee. Where postal receipt and acknowledgement due showed the dispatch and
receipt of notice, it was held that there was presumption service of notice. Where a
notice to quit sent by the landlord by registered post to the tenant, which the latter as
verified by the postman, refused to take, was presumed to have been delivered.

7. Presumption of withholding evidence [Illustration (g)]:

This Illustration deals with the presumption arising from withholding evidence. It enables
the court to presume that where evidence is withheld by the party, it goes against him.
“The presumption under section 114(g) is only permissible inference and not a
necessary inference”. Merely because some important material which has not been
examined in the case, the court would not draw inference that if the witness had been
examined he would have given contrary. Where the anti-adulteration authorities did not
produce the sample which was submitted to analysis, it created presumption that there
was something in the sample against them.

The question relates to determination of consent or implied consent for surgical

operation. The patient denied to have consented to surgery excision of tumour, whereas
the doctor concerned in written submissions appended copy of consent from of the
hospital but not the actual consent taken from the patient and no evidence was
produced on part of the doctor. It raised presumption against the hospital and the
attending doctor as held by the Supreme Court. It was held that in essence of surgery
consent given for excision biopsy could not by inference be taken to be consent for
surgery.

8. Refusal to answer [Illustration (h)]:

The Illustration says that if a person refuses to answer question which he is not
compelled to answer by law, the court may presume the answer if given would be
unfavourable to him. But if the accused refuses to disclose his defense at the committal
proceeding no adverse inference against him can be drawn.

9. Presumption as to document in hand of obligator.

[Illustration (i)]:
According to this Illustration it is a natural presumption that a man will protect his
interests by securing his document before or at the time of discharging it. Where an
instrument of debt and a security for it are in the hands of the debtor, the presumption
would be that the debt must have been discharged and for protecting his interest the
debtor obtained the document and security after discharging the debt. Section 114 of
the Evidence Act cannot be relied upon to plead due discharge of obligor under
document if it is in the hands of obligor.

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 Others, 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 Panda, 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 out” 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 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, 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 Delhi, 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 held that accused
persons were guilty of offence of robbery. Similarly, recent and unexplained
possession of stolen property could be taken as presumptive evidence of charges
of murder as well.

In Limbaji and Others v. State of Maharashtra, 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.
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. E.g:-Right to be searched has to be made in presence of Gazetted Officer under
section 50 of the Narcotic Drugs and Psychotropic Substance Act. The Search
was to be conducted in presence of Superintendent of Police. But the accused opted to
be searched in presence of the Dy. Superintendent of Police, being a Gazetted Officer.
There is no presumption that there may be bias on part of the Dy. Superintendent of
Police.

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.