General Presumptions under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023: Adverse Inference, Recent Possession and Regularity of Official Acts

Section 119 is the widest provision in the Adhiniyam. It permits a court to presume the existence of any fact it thinks likely to have happened, and it supplies nine illustrations of the kinds of inference the common course of human affairs will bear. Three of them do most of the work in practice: that a person withholding evidence would have been damaged by it, that a person found with recently stolen goods is the thief, and that official acts have been regularly performed.

1. The Provision

Section 119, BSA — 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.

Section 119 corresponds to Section 114 of the Indian Evidence Act and is carried forward with its nine illustrations. Three features of the drafting govern its use.

It is a 'may presume' provision. Under Section 2(1)(h) the court may either regard the fact as proved unless and until it is disproved, or may call for proof of it. The second limb is decisive: a party invoking Section 119 must persuade the court to draw the inference, and cannot assert it as a right.

Its subject-matter is unlimited. The court may presume any fact which it thinks likely to have happened. The illustrations are examples, not a closed list, and the section supports inferences they do not mention.

The inference must be drawn in relation to the particular case. The closing words — 'in their relation to the facts of the particular case' — require the court to apply the general proposition to the material before it rather than mechanically. Each illustration in the Adhiniyam carries an explanatory note doing precisely that, and those notes are as important as the illustrations themselves.

2. The Nine Illustrations

	The presumption	Where it is used
(a)	A man 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	Theft, robbery, dacoity and often murder
(b)	An accomplice is unworthy of credit unless he is corroborated in material particulars	Read with Section 138, under which an accomplice is a competent witness
(c)	A bill of exchange accepted or endorsed was accepted or endorsed for good consideration	Commercial and negotiable-instrument litigation
(d)	A thing or state of things shown to exist within a period shorter than that after which such things or states of things cease to exist is still in existence	Continuity of a state of affairs
(e)	Judicial and official acts have been regularly performed	Omnia praesumuntur rite esse acta
(f)	The common course of business has been followed in particular cases	Despatch, service, and routine transactions
(g)	Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it	The adverse inference — the most used of the nine
(h)	A man refusing to answer a question which he is not compelled by law to answer would, if he answered it, give an answer unfavourable to him	Refusal to give a sample, to undergo a test, or to answer
(i)	When an obligation is due, the obligation has been discharged	Presumption of payment

⚠ The explanatory notes are part of the section

Each illustration in the Adhiniyam is followed by a note directing the court to consider circumstances in which the presumption would not be appropriate. Illustration (a) is qualified by the example of a man who bought the goods openly in a market; illustration (b) by the case of an accomplice whose account is confirmed in every particular; illustration (e) by the case of an official whose regularity is doubtful. The court is not to apply the illustration mechanically but to ask whether, on these facts, a prudent person would draw the inference.

3. Illustration (g) — The Adverse Inference

The most invoked provision in the Adhiniyam after the definitions. It permits the court to presume that evidence which could be produced and is not would, if produced, be unfavourable to the person who withholds it.

📖 Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413

Held: Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue.

It is not a sound practice for those desiring to rely on a certain state of facts to withhold from the Court the best evidence which is in their possession and which could throw light on the matter in controversy, and then to contend that the party on whom the burden of proof lay has failed to discharge it.

Ratio: The inference operates regardless of where the burden of proof lies. A party in possession of material bearing on the issue is expected to produce it.

The opening words are the point of the decision and are frequently overlooked: even if the burden of proof does not lie on a party. A defendant who bears no burden at all may nevertheless suffer an inference by withholding what he holds.

3.1 What must be established

Four things, and a submission that omits any of them is unlikely to succeed.

The evidence exists, or existed. An inference cannot be drawn from the non-production of something that never was.
It is in the possession or power of the party against whom the inference is sought. This is the element most often assumed and most often unproved.
It would throw light on the matter in controversy. Material irrelevant to the issue produces no inference.
It has not been produced, and the failure is unexplained. A credible explanation — that the record was destroyed in the ordinary course, that it was seized, that it never came into the party's hands — defeats the inference.

3.2 Where the inference is at its strongest

Three situations recur in which the inference does real work.

Non-production after a notice to produce. Where a notice under Section 64 has been served and not complied with, the inference operates alongside three other consequences: secondary evidence becomes admissible under ground (a) of Section 60; Section 91 raises a mandatory presumption that the document was duly attested, stamped and executed; and Section 167 bars the withholding party from using the document later without consent or leave.

Withholding available footage or records. Where surveillance footage, call records or system logs existed and were allowed to be overwritten or were not produced, the inference is available and is frequently the most useful submission in such a case.

Failure to examine a material witness. Where a person who must have known the relevant facts is not called and no explanation is offered, the inference may be drawn — subject to the qualification that the prosecution is not obliged to examine every witness, and that the quality of the evidence led matters more than its quantity, Section 139 providing that no particular number of witnesses is required.

⚠ The inference is not a substitute for proof

It is a may presume provision, and it supplements a case rather than making one. A party who has led no evidence on an issue cannot succeed by pointing to material the other side did not produce; the inference assists a case that already has something in it. Where the party bearing the legal burden has led nothing, the correct outcome is that he fails — not that an inference fills the gap.

4. Illustration (a) — Recent Possession of Stolen Property

The second of the three heavily used illustrations, and the one with the most developed body of authority.

A man in possession of stolen goods soon after the theft is presumed to be either the thief or a receiver knowing the goods to be stolen, unless he can account for his possession.

4.1 The conditions

Condition	What it requires
The goods are stolen	The theft itself must be established, and the articles must be identified as those stolen
Possession by the accused	Possession must be conscious and exclusive. Articles found in a place accessible to others do not establish it
Recent	The possession must be soon after the theft. What is recent depends on the nature of the article and how readily it changes hands
Absence of explanation	The presumption operates 'unless he can account for his possession'. A plausible explanation displaces it

The word recent carries most of the weight and is a question of degree. Currency notes and ordinary articles change hands quickly, and possession a month later proves very little; distinctive ornaments, machinery bearing identifying numbers and unusual articles remain traceable far longer. The test is whether the interval is short enough to make innocent acquisition improbable.

4.2 The extended inference

📖 Earabhadrappa alias Krishnappa v. State of Karnataka, (1983) 2 SCC 330

Held: Where a murder and a robbery form part of one transaction, and the accused is found in recent possession of the property of the deceased and offers no explanation or a false explanation, the presumption under the illustration corresponding to Section 119(a) may extend not merely to the offence of theft but also to the graver offence with which the theft is connected.

The nature of the presumption depends on the nature of the evidence and the circumstances; where the ornaments of the deceased were found in the possession of the accused shortly after the murder and no explanation was forthcoming, the presumption that he was the murderer as well as the thief was open.

Ratio: Where theft and a graver offence form one transaction, recent unexplained possession may support a presumption as to the graver offence.

Two qualifications confine the extension and must be established before it is invoked. The two offences must form one transaction, so that possession of the property is explicable only on the footing that the possessor committed both. And the possession must be genuinely unexplained, or explained falsely — a false explanation being itself a circumstance under Section 6(2) as conduct.

Where the theft and the graver offence are separable, or where a plausible account of the possession is given, the extension does not operate and the presumption is confined to the offence against property.

5. Illustration (e) — Regularity of Official Acts

The third of the heavily used illustrations expresses the maxim omnia praesumuntur rite esse acta — all things are presumed to have been done rightly and regularly.

The court may presume that judicial and official acts have been regularly performed. The presumption spares every litigant the task of proving the routine steps by which official business is transacted, and without it no proceeding could be conducted at reasonable cost.

5.1 What it covers

That a court which passed an order had jurisdiction and followed the prescribed procedure.
That a summons or notice issued in the ordinary course was issued and served as the rules require.
That an officer who performed an act was duly appointed and authorised to perform it.
That statutory formalities preceding an official act — sanction, approval, publication — were observed.
That records maintained in the ordinary course were maintained regularly.

The illustration operates alongside Section 78, under which the court shall presume that an officer signing a certified copy held the official character he claims. The two are complementary: Section 78 is mandatory and attaches to certified documents; illustration (e) is discretionary and covers official acts generally.

5.2 Its limits

⚠ Regularity, not validity

The presumption is that an act was performed regularly — that the steps were taken and the formalities observed. It is not a presumption that the act was lawful, or within jurisdiction as a matter of substance, or correct in its conclusion. Where the challenge is that an authority had no power to act at all, illustration (e) does not answer it; the presumption assumes a regular exercise of a power and says nothing about whether the power existed.

Three further limits should be noted. The presumption is discretionary, and where the circumstances suggest irregularity the court may call for proof instead. It is rebuttable, and material showing that a step was not taken displaces it. And it operates on official acts — acts done in the discharge of a public function — and not on the private acts of persons who happen to hold office.

6. The Remaining Illustrations

The other six arise less often but each has a defined field.

Illustration (b) — the accomplice. An accomplice is unworthy of credit unless corroborated in material particulars. This is a rule of prudence rather than of law and operates alongside Section 138, under which an accomplice is a competent witness and a conviction is not illegal merely because it proceeds on his uncorroborated testimony. The two read together produce the settled position: such a conviction is legal but is not ordinarily safe.

Illustration (c) — consideration for a bill of exchange. The presumption that a bill accepted or endorsed was accepted or endorsed for good consideration, which operates alongside the fuller presumptions in the Negotiable Instruments Act, 1881.

Illustration (d) — continuance of a state of things. A thing shown to exist within a period shorter than that after which such things cease to exist is presumed still to exist. The illustration expresses the same principle of continuity that underlies Sections 110, 112 and 113.

Illustration (f) — the common course of business. That the ordinary course of business has been followed in a particular case. This is the route by which despatch and delivery are ordinarily established: a letter shown to have been properly addressed, stamped and posted is presumed to have reached the addressee in the ordinary course.

Illustration (h) — refusal to answer. A man refusing to answer a question he is not compelled by law to answer would, if he answered it, give an answer unfavourable to him. This is the provision through which a refusal to give a sample or to undergo a test is met — the approach taken in Sharda v. Dharmpal, (2003) 4 SCC 493 and in Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418, where the court does not compel but draws the inference.

Illustration (i) — discharge of an obligation. Where an obligation is due, the presumption that it has been discharged. This supports the ordinary inference that a debt long unclaimed has been paid, and it is qualified in the Adhiniyam by the note that the presumption weakens where the creditor's conduct shows otherwise.

7. Using Section 119

Identify the illustration, or argue the general words. The section is not confined to the nine, but an inference that fits one of them is far easier to obtain.
Establish the foundation. Each illustration presupposes something proved — that the goods were stolen, that the document is in the party's possession, that the act was an official act.
Address the explanatory note. The court is directed to consider circumstances in which the presumption would be inappropriate, and a submission that ignores them is incomplete.
Persuade, do not assert. This is a may-presume provision, and the court may instead call for proof of the fact.
For illustration (g), prove possession. The inference fails most often because nobody established that the party actually held the material.
For illustration (a), address recency and exclusivity, and be ready to meet whatever explanation is offered.
Do not use the section to fill a gap in a case that has nothing in it. The inference supplements evidence; it does not replace it.

8. The Position Stated Shortly

Section 119 is the widest provision in the Adhiniyam, permitting the court to presume any fact likely to have happened.
It is discretionary, and the court may instead call for proof of the fact under the second limb of Section 2(1)(h).
The nine illustrations are examples, not a closed list, and each carries an explanatory note that is part of the provision.
Illustration (g) operates regardless of where the burden lies — Gopal Krishnaji Ketkar — but requires proof that the material existed and was in the party's possession.
Illustration (a) requires conscious and exclusive possession, recency, and the absence of a plausible explanation.
Where theft and a graver offence form one transaction, recent unexplained possession may support a presumption as to the graver offence — Earabhadrappa.
Illustration (e) presumes regularity, not validity, and does not answer a challenge to the existence of the power.
The section supplements a case; it does not make one.

9. Related Topics and Provisions

Topic or provision	Connection
Presumptions under the Bharatiya Sakshya Adhiniyam	The three grades, and the second limb of 'may presume'
Burden of Proof — Sections 104 to 120	The chapter in which Section 119 sits
Shifting of the Burden of Proof	Presumptions as a mechanism moving the onus
Notice to Produce a Document — Section 64	The four consequences of non-production, of which illustration (g) is one
Recovery as Circumstantial Evidence	Recent possession, and the proviso to Section 23(2)
Presumptions Regarding Documents — Sections 78 to 93	Section 78 on official character, complementing illustration (e)
Sections 91 and 167, BSA	Due execution of a document not produced, and the bar on later use
Sections 138 and 139, BSA	Competence of an accomplice, and that no particular number of witnesses is required