Presumptions under the Law of Evidence: May Presume, Shall Presume and Conclusive Proof under the Bharatiya Sakshya Adhiniyam, 2023

A presumption is a rule that permits or requires a court to take one fact as established on proof of another. It is a device for economising proof, and it operates by placing the risk of non-persuasion on the party against whom it runs. The Adhiniyam defines three grades of presumption in Sections 2(1)(h), 2(1)(l) and 2(1)(b), and then deploys them across two blocks of provisions: the presumptions as to documents in Sections 78 to 93, and the presumptions in the chapter on burden of proof in Sections 110 to 120.

1. Meaning and Nature

A presumption is not evidence. It is a rule about the effect of evidence, or about the consequence of the absence of evidence. Once the foundational fact is proved, the presumed fact is treated as established without any evidence being led on it, and the party against whom the presumption operates must displace it or fail.

📖 Sodhi Transport Co. v. State of Uttar Pradesh, (1986) 2 SCC 486

Held: The expression 'shall presume' does not make the presumed fact conclusive. A presumption is not evidence in itself but only makes a prima facie case for the party in whose favour it operates. It indicates the person on whom the burden of proof lies, and when that person adduces evidence to rebut it, the presumption disappears and the matter is decided on the evidence.

Ratio: A presumption is a rule allocating the burden of proof, not a substitute for evidence.

📖 Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052

Held: A rule prescribing that on proof of one fact another shall be treated as conclusively proved is a rule of evidence. Such a rule regulates the mode of proof and does not by itself create or extinguish substantive rights, though the legislature must have the competence to enact it.

Ratio: Presumptions, including conclusive presumptions, are rules of evidence and therefore procedural in character.

2. Classification

Class	Latin term	Character	Statutory expression
Presumption of fact	Praesumptiones hominis or natural presumptions	Inferences which the court may draw from the common course of natural events, human conduct and public and private business. Discretionary and always rebuttable	'May presume' — Section 2(1)(h)
Rebuttable presumption of law	Praesumptiones juris tantum	Inferences which the law directs the court to draw, but which yield to proof to the contrary. Obligatory but rebuttable	'Shall presume' — Section 2(1)(l)
Irrebuttable presumption of law	Praesumptiones juris et de jure	Inferences which the law directs the court to draw and forbids any party to displace. Obligatory and conclusive	'Conclusive proof' — Section 2(1)(b)
Mixed presumption	Presumptions of fact and law	Inferences drawn partly from fact and partly by rule of law; rarely encountered in modern Indian practice	No separate statutory expression

Sections 2(1)(h), 2(1)(l) and 2(1)(b), BSA

'May presume'. Whenever it is provided by this Adhiniyam 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 Adhiniyam 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 Adhiniyam 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	Shall presume	Conclusive proof
Clause	2(1)(h)	2(1)(l)	2(1)(b)
Nature	Presumption of fact	Rebuttable presumption of law	Irrebuttable presumption of law
Court's position	May regard the fact as proved, or may call for proof of it	Must regard the fact as proved unless and until it is disproved	Must regard the fact as proved on proof of the foundational fact
Discretion	Yes	None	None
Rebuttable	Yes	Yes	No
Evidence in rebuttal	Permitted	Permitted	Not permitted
Effect once rebutted	The presumption disappears; the matter is decided on the evidence	The same	Does not arise
Examples in the BSA	Section 119 and its Illustrations	Sections 84, 86, 87, 110, 111, 114, 117, 118 and 120	Section 116

📖 M. Narsinga Rao v. State of Andhra Pradesh, (2001) 1 SCC 691

Held: A presumption of fact under a 'may presume' provision is an inference which the court may draw from the proof of certain other facts, applying its knowledge of human affairs and the common course of natural events. It is not a legal fiction. Proof of a fact depends on the degree of probability of its having existed, and the standard is that of the prudent man.

Ratio: A permissive presumption is the ordinary process of inference given statutory recognition, and remains subject to the definition of 'proved' in Section 2(1)(j).

3. Presumptions as to Documents — Sections 78 to 93

Chapter V closes with sixteen presumptions relating to documents and electronic records, corresponding to Sections 79 to 90A of the Indian Evidence Act. Section 82 of that Act, which raised a presumption as to a document admissible in England, and Section 88, which dealt with telegraphic messages, are omitted.

Section	Subject	Grade	IEA
78	Genuineness of certified copies	Shall presume	79
79	Documents produced as record of evidence	May presume	80
80	Gazettes, newspapers and other documents	May presume	81
81	Gazettes in electronic or digital record	May presume	81A
82	Maps or plans made by authority of Government	Shall presume	83
83	Collections of laws and reports of decisions	Shall presume	84
84	Powers-of-attorney executed before and authenticated by a Notary Public or specified officer	Shall presume	85
85	Electronic agreements bearing electronic signatures of the parties	Shall presume	85A
86	Electronic records and electronic signatures	Shall presume	85B
87	Electronic Signature Certificates	Shall presume	85C
88	Certified copies of foreign judicial records	May presume	86
89	Books, maps and charts printed or published under the authority of Government	May presume	87
90	Electronic messages forwarded by an originator through an electronic mail server	May presume	88A
91	Due execution of documents not produced after notice	Shall presume	89
92	Documents thirty years old produced from proper custody	May presume	90
93	Electronic records five years old produced from proper custody	May presume	90A

⚠ Two points on the electronic-message presumption

Section 90 presumes that a message forwarded by an originator through an electronic mail server to the addressee corresponds with the message as fed into the originator's computer for transmission. The Court is expressly not to make any presumption as to the person by whom the message was sent. The presumption therefore establishes the integrity of transmission, not authorship.

Section 88 of the Indian Evidence Act, which raised a presumption as to telegraphic messages, is omitted altogether. The presumption formerly contained in Section 88A is what survives, as Section 90 of the Adhiniyam.

Section 92 requires that the document be produced from proper custody, which the Explanation defines as custody by a person and in a place in which it would naturally be, if the custody is proved to be legitimate or the particular case is such as to render the origin probable. The presumption extends to the signature and to every other part of the document purporting to be in the handwriting of a particular person, and, where the document is attested or executed, that it was duly attested and executed.

4. Presumptions in the Chapter on Burden of Proof — Sections 110 to 120

Section	Presumption	Grade	IEA
110	Where a person was known to have been alive within thirty years, the burden of proving that he is dead is on the person who affirms it	Burden-allocating rule	107
111	Where a person has not been heard of for seven years by those who would naturally have heard of him had he been alive, the burden of proving that he is alive is on the person who affirms it	Burden-allocating rule	108
112	Where persons have been shown to stand towards each other in the relation of partners, landlord and tenant, or principal and agent, the burden of proving that the relationship has ceased is on the person who affirms it	Burden-allocating rule	109
113	Where a person is shown to be in possession of anything as owner, the burden of proving that he is not the owner is on the person who affirms that he is not	Burden-allocating rule	110
114	Good faith in a transaction between parties one of whom stands in a position of active confidence towards the other	Burden on the party in the position of active confidence	111
115	Certain offences committed in a disturbed area	Shall presume	111A
116	Legitimacy of a child born during a valid marriage, or within two hundred and eighty days after its dissolution, the mother remaining unmarried	Conclusive proof, subject to proof of non-access	112
117	Abetment of suicide by a married woman within seven years of marriage, where cruelty is shown	May presume	113A
118	Dowry death, where cruelty or harassment in connection with a demand for dowry is shown soon before the death	Shall presume	113B
119	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	May presume	114
120	Absence of consent in specified prosecutions, where sexual intercourse is proved and the woman states in her evidence that she did not consent	Shall presume	114A

4.1 Section 119 and its Illustrations

Section 119 is the general presumption of fact, and it is the widest provision in the Adhiniyam. The court is not directed to presume anything; it is permitted to presume whatever it thinks likely to have happened, having regard to ordinary experience. The Illustrations set out the classical instances, and each is subject to the qualification that the court is to have regard to the facts of the particular case.

Illustration	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 states 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

Each Illustration is accompanied in the statute by a caution showing circumstances in which the presumption ought not to be drawn — for example, that Illustration (a) should not be applied where the possession is of an article commonly dealt in and the person is a shopkeeper who has no reason to believe it stolen, and that Illustration (e) should not be applied where an official act was done under circumstances which make its regularity improbable.

5. The Principal Presumptions Examined

5.1 Legitimacy — Section 116

Section 116, BSA

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

This is the only presumption in the Adhiniyam framed as conclusive proof. The single escape is proof of non-access, which means the absence of any opportunity for marital intercourse at the relevant time. Impotence, sterility, or evidence that the husband is not the biological father does not by itself displace the presumption; what must be shown is that the parties had no access to each other.

📖 Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418

Held: Courts in India cannot order a blood test as a matter of course. There must be a strong prima facie case, and the applicant must establish the need for such a test. No one can be compelled to give a sample of blood for analysis, and an adverse inference may be drawn against a party who refuses. The presumption under Section 112 of the Indian Evidence Act is a conclusive presumption which can be displaced only by proof of non-access.

Ratio: A scientific test cannot be used to circumvent the statutory presumption; the presumption yields only to proof of non-access.

📖 Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576

Held: Where a DNA test has in fact been conducted and the result excludes paternity, the result is scientifically accurate and must prevail. When there is a conflict between a conclusive proof envisaged by law and a fact established by science, the latter must prevail, since the presumption is a legal fiction and the DNA report a matter of scientific certainty. The Court, however, reiterated that such a test is not to be directed as a matter of routine.

Ratio: A completed and reliable DNA test excluding paternity displaces the presumption; the two decisions read together mean that the test will rarely be ordered, but that its result governs where it exists.

5.2 Dowry death — Section 118

Section 118, BSA

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation. — 'Dowry death' shall have the same meaning as in the corresponding provision of the Bharatiya Nyaya Sanhita, 2023.

Three foundational facts must be established before the presumption operates: that the death occurred otherwise than under normal circumstances within seven years of the marriage; that the woman was subjected to cruelty or harassment by the accused; and that this occurred soon before her death, in connection with a demand for dowry. The expression 'soon before' is not defined and has been treated as requiring a proximate and live link between the cruelty and the death rather than a fixed interval.

📖 Hira Lal v. State (Government of NCT of Delhi), (2003) 8 SCC 80

Held: The expression 'soon before her death' is not defined and is a relative term. What is necessary is that there should be a proximate and live link between the effect of the cruelty based on the dowry demand and the death. If the interval is wide, the link is broken and the presumption cannot be raised. There must be existence of a proximate link, and the determination depends on the facts of each case.

Ratio: 'Soon before' requires a proximate and live link, not a fixed period of time.

5.3 Absence of consent — Section 120

Section 120 carries forward Section 114A of the Indian Evidence Act, inserted by the Criminal Law (Amendment) Act, 1983 following the decision in Tuka Ram v. State of Maharashtra, AIR 1979 SC 185 and the public response to it. Where sexual intercourse by the accused is proved, the question is whether it was without consent, and the woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption operates only after the prosecution proves the intercourse and the woman deposes to the absence of consent; it is rebuttable.

6. Presumptions and the Burden of Proof

Every presumption operates upon the burden of proof, and the pattern is uniform.

The party relying on the presumption must first prove the foundational fact. In a criminal case this must be done to the criminal standard. Until that is done, the presumption does not arise and the party against whom it would operate is under no burden at all.
Once the foundational fact is proved, the presumed fact is taken as established without evidence being led on it.
The evidential burden then shifts to the party against whom the presumption runs, who must displace it. Where that party is an accused, he discharges the burden on a preponderance of probabilities and is not required to prove his case beyond reasonable doubt.
The legal burden does not shift. The prosecution's obligation to establish the case as a whole beyond reasonable doubt is unaffected by the operation of any presumption.
Once rebutted, the presumption disappears and the matter is decided on the evidence actually on the record.

📖 V.D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762

Held: Where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond reasonable doubt. It is sufficient if he succeeds in proving a preponderance of probability, and as soon as that is done the burden shifts to the prosecution, which has still to discharge its original onus of establishing the case beyond reasonable doubt.

Ratio: The standard for displacing a presumption operating against an accused is the civil standard.

⚠ Presumption of innocence

The presumption of innocence is not stated in any section of the Adhiniyam. It is presupposed by the allocation of the burden in Section 104, is given effect by the requirement of proof beyond reasonable doubt, and is protected by Article 21 of the Constitution. A statutory presumption operating against an accused therefore represents a legislative departure from the ordinary position, and such provisions are construed strictly, with the foundational facts required to be established before the presumption can be invoked.

7. Related Topics and Provisions

Topic or provision	Connection
Important Definitions under Section 2, BSA	The three definitions that supply the operative meaning of every presumption
Proof and Modes of Proof	Presumption as one of the five modes by which a fact may be established
Standard of Proof in Civil and Criminal Cases	The standard required to establish the foundational fact and the standard required to rebut
Substantive Evidence and Corroborative Evidence	Illustration (b) to Section 119 and the corroboration of accomplice testimony
Sections 78 to 93, BSA	Presumptions as to documents and electronic records
Sections 104 to 109, BSA	Burden of proof, upon which every presumption operates
Sections 110 to 120, BSA	The presumptions in the chapter on burden of proof
Bharatiya Nyaya Sanhita, 2023	Supplies the definition of dowry death applied by Section 118