UNIT IV
MEANING OF THE TERMS MAY
PRESUME, SHALL PRESUME &
CONCLUSIVE PROOF
Course Outline
Understanding the concept of May Presume, Shall
Presume & Conclusive Proof and its application by
the court.
Meaning of Presumption – ‘Presumption’ word has not been defined under
Indian Evidence Act, 1872. With the help of dictionary and case law, it can be
defined. These are following -
Stephen- “A presumption” means a rule of law that Courts and judges shall draw
a particular inference from particular fact, or from particular evidence, unless and
until the truth of such inference is disproved.
M.S. Narayana Menon @ Mani v. State of Kerala & Anr. (4 July, 2006)
(SC)
In this case Hon’ble Supreme Court said, “A presumption is a legal or factual
assumption drawn from the existence of certain facts”.
M/S Kumar Exports v. M/S Sharma Carpets (December 16, 2008)
In this case Hon’ble Supreme Court said, “Presumption literally means “taking as
true without examination or proof”.
M/S Kumar Exports v. M/S Sharma Carpets
In this case Hon’ble Supreme Court also said,
“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. A presumption is not in itself
evidence, but only makes a prima facie case for a
party for whose benefit it exists”.
Kinds of Presumption:
Under Indian Evidence Act, all presumptions must come under
one or the other class of the three classes mentioned in the Act,
namely,
May presume (rebuttable),
Shall presume (rebuttable) and
Conclusive presumptions (irrebuttable)
May presume’ denotes the presumption of fact and ‘Shall
Presume’ and ‘Conclusive Proof’ denotes the presumption of
law.
There are two types of presumption namely;
Presumption of fact
Presumption of law
Presumptions of fact are inferences which are drawn
naturally from the observation of the course of
nature and the constitution of the human mind. It is
always rebuttable and goes away when explained or
rebutted with positive proof. Court may ignore it.
Presumption of law is based on provisions of law. It
is conclusive unless rebutted as provided under the
rule giving rise to presumption. It could be
rebuttable or irrebutable. Court cannot ignore it.
Section 4 defines:
“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.
May Presume:
Whenever the court may presume a fact, the Court
may take notice of the fact without taking proof or
may call upon a party to prove the fact.
The Court has discretion to presume a fact or not to
presume it.
EX: Sections 86 to 88, 90, 113A, 114 etc. of the Act.
Shall Presume:
The court cannot exercise its discretion when the words of
a provision have the words “shall presume”.
These are directions under law but rebuttable.
The Court in such a case will be compelled to take a fact
as proved. The Court will be at a liberty to allow the party
to adduce evidence to disprove the fact so presumed if the
party is successful in doing so.
Sections 79 to 85, 89, 105, 111A, 113B, 114A etc. of the Act.
Conclusive Proof:
When a fact is a conclusive proof of another fact, the court has
no discretion at all. It cannot call upon the party to prove nor
call the opposing party to disprove the fact.
These are irrebuttable presumption of law.
EX: when the court in one case concludes that A is the wife of B
and in another case it is questioned as to whether A and C are
married. It shall be considered to be conclusive proof from the
earlier case that A is married to B.
Relevant sections- Sections41,112 and 113 of IEA,Sec.82 IPC
In the case of M.S. Narayana Menon @ Mani v.
State of Kerala & Anr. Supreme Court observed,
“Presumptions are rules of evidence and do not conflict with the
presumption of innocence, because by the latter all that is meant
is that the prosecution is obliged to prove the case against the
accused beyond reasonable doubt. The obligation on the
prosecution may be discharged with the help of presumptions of
law or fact unless the accused adduces evidence showing the
reasonable possibility of the non-existence of the presumed fact.
The burden of proof may be shifted by presumptions of law or
fact, and presumptions of law or presumptions of fact may be
rebutted not only by direct or circumstantial evidence but also by
presumptions of law or fact”