'Presumptions may be looked on as the bats of the law, flitting in twilight but disappearing in the sunshine of actual facts.' Explain while discussing in brief the different kinds of presumptions recognised by the Indian Evidence Act. Can the court presume the existence of any fact which it thinks likely to have happened? If so, under what circumstances?

Presumptions in the Law of Evidence: From the Twilight of Inference to the Sunshine of Fact

The celebrated observation of Cochran J in Stumpf v. Montgomery (1924) — that presumptions are like the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts — captures, in one arresting image, the essential nature of a legal presumption. A presumption is not evidence. It is a bridge built by the law across a gap in evidence, a provisional inference that fills a void until the actual facts are illuminated. When the sunshine of direct, concrete proof arrives, the bat-like presumption takes flight and disappears. The metaphor is perfect precisely because a bat is not a bird — and a presumption is not proof, even though it serves a similar function for a time.

What Is a Presumption?

At its most fundamental, a presumption is a rule of law directing the court to draw a particular inference from a particular fact, unless and until the truth of that inference is disproved. Best defines it as a probable inference drawn by a tribunal, through a process of probable reasoning, from some matter of fact already proved. The law builds on human experience: when a proven fact A is before the court, and common experience tells us that fact B usually follows from A, the law formalises that connection into a presumption. This saves time, fills evidentiary lacunae, and advances the administration of justice.

The Indian Evidence Act, 1872 (and now the Bharatiya Sakshya Adhiniyam, 2023, referred to hereafter as the BSA) recognised this mechanism and codified it with precision in Section 4, which contains the foundational definitions of the three kinds of presumptions recognised under Indian law.

The Three Kinds of Presumptions Under Section 4 / Section 21 of the BSA

'May Presume'

Section 4 defines this as follows: "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." This is a discretionary presumption. The court has a choice — it may draw the inference, or it may decline to draw it and instead demand independent proof. A presumption of fact is nothing but a discretionary inference drawn by the court from one set of proved facts to the existence of another. As the Supreme Court explained in Sodhi Transport Co. v. State of Uttar Pradesh (AIR 1986 SC 1099), the may presume category takes away neither the discretion of the court to draw the inference, nor the right of the opposite party to disprove it. Once the court chooses to draw it, however, the inference becomes a presumption that the other side must rebut.

'Shall Presume'

Here, the section mandates: "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." This is a mandatory but rebuttable presumption — what the classical law calls praesumptio juris. The court has no discretion; upon proof of the foundational fact, it must draw the inference. But the presumption is not conclusive — the opposing party retains the right to rebut it. The operative phrase unless and until it is disproved is the key: the presumption stands until displaced, and displacing it requires not just a plausible explanation, but clear and convincing evidence. In Kumar Exports v. Sharma Carpets (2009) 2 SCC 513, the Supreme Court observed that once the court raises either a may presume or a shall presume, the practical distinction between them collapses — both become rebuttable. The difference lies primarily in whether the court had discretion to raise the presumption in the first place.

'Conclusive Proof'

The section declares: "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." This is an irrebuttable presumption — what the Roman law called praesumptio juris et de jure. The court has neither the discretion to refuse to draw the inference, nor the power to permit the parties to disprove it. In Wigmore's famous phrase, conclusive presumptions are often fictions that disguise a rule of substantive law. Under the Indian Evidence Act, the sections that create conclusive proof are very few: Section 41 (judgments in rem), and Section 112 (legitimacy of a child born in wedlock) — now Section 35 and Section 116 of the BSA respectively. Section 113 of the Evidence Act (cession of territory) has been deleted in the BSA as it was long recognised to be effectively obsolete.

Classification of Presumptions

Beyond the three-fold division under Section 4, classical evidence jurisprudence recognises two broader categories that underlie the entire framework:

Presumptions of Fact (praesumptiones hominis) are inferences which the mind naturally and logically draws from given facts, irrespective of any legal compulsion. They are, in essence, no more than structured common sense — the court applying experience to the facts before it. They are always discretionary and always rebuttable. As Phipson on Evidence has observed, a presumption of fact is nothing but an argument — and in the court's function of reasoning from proved facts, it is the court itself that acts as the reasoning agent. Section 114 of the Indian Evidence Act (now Section 119 of the BSA) is the home of these discretionary presumptions of fact.

Presumptions of Law (praesumptiones juris) are arbitrary consequences expressly annexed by law to particular facts, regardless of whether the logical inference drawn by the mind would be the same or different. They are mandatory, not permissive. They divide further into rebuttable presumptions of law (the shall presume category) and irrebuttable presumptions of law (the conclusive proof category).

A clear tabular picture emerges:

One important principle runs through all three categories: a presumption can only be drawn from proved facts, never from another presumption. As the Supreme Court held in Suresh Budharmal Kalani v. State of Maharashtra (AIR 1998 SC 3258), a presumption drawn on the basis of one proved fact cannot itself serve as the factual foundation for drawing yet another presumption. The chain of reasoning must always be anchored to the solid ground of proved fact — not suspended in mid-air from another inference.

The Court's Power to Presume: Section 114 IEA / Section 119 BSA

The question now comes directly to its most practically important dimension: Can the court presume the existence of any fact which it thinks likely to have happened? If so, under what circumstances?

The answer is an emphatic yes, and the provision that governs this is Section 114 of the Indian Evidence Act, 1872, now Section 119 of the Bharatiya Sakshya Adhiniyam, 2023. The section reads:

"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."

Three foundational criteria govern the court's exercise of this power, and it is worth dwelling on each of them.

Common Course of Natural Events

This criterion allows the court to draw inferences from what nature and biology ordinarily tell us. The period of human gestation, the continuity of a physical condition, the expected behaviour of materials and objects — all of these may ground a presumption under this limb. In Devyani v. Kantilal Gamanlal (AIR 1962 Bom 188), the Bombay High Court observed that a case of adultery must be judged having due regard to the social conditions and the manner in which the parties are accustomed to live; if there is evidence that they had reasonable opportunities of sexual intercourse, the court may raise an inference of adultery. In one moving case, a woman claimed her mother had died in a train accident so badly that even a DNA test was impossible. The court, relying on the common course of natural events and the absence of any contradicting evidence, presumed that the body was that of the mother and directed the issue of a death certificate.

Human Conduct

This is perhaps the most frequently applied limb. Experience of how human beings ordinarily behave — what a reasonable man would do in a given situation — underlies a vast number of everyday judicial inferences. Where a servant entrusted with property fails to return it or gives an incredible account, the court is entitled to presume criminal misappropriation. Where a father, an old and respectable person, testifies to his own family's disgrace — as happened in Kiran Mandal v. Mohini Mandal (AIR 1989 PH 310) — the court may presume from human conduct that he would not do so unless it were true. Where evidence is withheld that a party could easily have produced, the court may presume under Illustration (g) that such evidence, if produced, would tell against the party withholding it.

Public and Private Business

This limb covers the presumption of regularity in the conduct of official and business acts, encapsulated in the old Latin maxim omnia praesumuntur rite esse acta — all things are presumed to have been done rightly and in due form. A registered sale deed carries a presumption of genuineness. Entries in revenue records are presumed to be correct. An officer acting within the apparent scope of his office is presumed to have been properly appointed and to have acted with authority. In Pushpadevi M. Jatia v. M.L. Wadhawan (AIR 1987 SC 1748), the Supreme Court reaffirmed that official acts of the holder of an existing office are recognised as valid under the de facto doctrine — a doctrine born of necessity and public policy to prevent endless mischief.

The Illustrations: Not Exhaustive, But Illuminating

Section 114 of the Evidence Act (Section 119 of the BSA) provides eleven illustrations that give concrete expression to the court's general power. These illustrations are expressly not exhaustive — they are examples, not a closed list. The court's power under the section is general, and other presumptions of a similar kind may be raised under the section itself. As the sources of the section make plain, the court need not draw any of these presumptions in a particular case; where the informative facts proved over-balance the probability that the inference would be a sound one, the court will in its discretion decline to draw the presumption.

The more significant illustrations deserve individual attention:

Illustration (a): Possession of Stolen Property. If a person is found in possession of stolen goods soon after the theft, the court may presume that he is either the thief or has received them knowing them to be stolen. The presumption depends critically on the time factor — the Supreme Court held in Tulsiram v. State (AIR 1954 SC 1) that if the gap is too large, the presumption weakens. Where stolen articles from a dacoity were found on the accused soon after the commission, as in State of Karnataka v. Rajan (1994 Cr LJ 1042), the court raised the presumption that the accused was among the dacoits. The principle is not confined to theft alone — it extends to all charges, however penal, including murder, where the fruits of the crime are found on the accused.

Illustration (b): Accomplice Requires Corroboration. The court may presume that an accomplice is unworthy of credit unless corroborated in material particulars. This illustration must, however, be read alongside Section 133 (now Section 138 of the BSA), which provides that a conviction is not illegal merely because it rests on uncorroborated accomplice testimony. The combined effect is that the court may raise the presumption calling for corroboration — but whether to do so is a matter of discretion, not legal compulsion.

Illustration (c): Consideration for a Bill of Exchange. The court may presume that a bill of exchange accepted or endorsed was accepted for consideration. This presumption is modified by Sections 118 and 139 of the Negotiable Instruments Act, 1881, which convert the discretionary may presume into a mandatory shall presume in the context of negotiable instruments.

Illustration (d): Continuity of Things. Once a state of things is shown to exist, the court may presume its continuance within a reasonably proximate time, both forwards and backwards. If a person is shown to have been a member of a joint Hindu family at one point, the presumption of continuance operates until the contrary is shown. Similarly, a Hindu family, once shown to be joint, is presumed to remain so.

Illustration (e): Judicial and Official Acts Done Regularly. This gives formal recognition to the maxim omnia praesumuntur rite esse acta. When a government accords sanction for prosecution, it is presumed that the sanction was duly considered and granted. The Supreme Court in MS Reddy v. State Inspector of Police (1993 Cr LJ 558) held that the burden is heavier on the accused to rebut this presumption.

Illustration (g): Withholding Evidence. Where a party is in a position to produce evidence but withholds it without adequate explanation, the court may presume that the evidence, if produced, would be against that party. This is a powerful tool. In Dipanwita Roy v. Ronobroto Roy (2015) 1 SCC 365, the Supreme Court applied this principle to a wife who refused to submit to a DNA test — drawing the inference that the result would have been unfavourable to her.

Illustration (h): Refusing to Answer. If a party or witness refuses to answer a question that they are not privileged to refuse, the court may presume that the answer, if given, would have been against them. This illustration has been applied in the context of DNA tests in legitimacy cases, as discussed in the preceding analysis.

Illustration (i): Certified Copies. The court may presume that a document produced is genuine when the original has been destroyed or its production would be disproportionately inconvenient.

Presumptions Are Grounded in Fact, Never in Fiction

There is a critical limitation on the court's power under Section 114 (Section 119 BSA) that must be stated clearly. The court may presume only facts that it thinks likely to have happened — not facts that are merely possible, conjectural, or speculative. As the Supreme Court said in R. Puthunainar Alhithan v. P.H. Pandian (AIR 1996 SC 1599), in order to draw an inference that a disputed fact is established, there must exist on record some direct material facts or circumstances from which such an inference can properly be drawn. Mere suspicion cannot take the place of legal proof — and a presumption cannot be stretched to fill a gap that even the proved facts do not approach.

Furthermore, a presumption cannot contradict evidence. In Vattacherukuru Village Panchayat v. Nori Venkatarama Deekshithulu (1991 Supp. 2 SCC 228), the Supreme Court affirmed the rule that a presumption can be raised to fill gaps in evidence, but it cannot be used to contradict evidence that is actually present. Where there are proved facts that squarely address the question, the court does not rely on the inference from surrounding circumstances — it decides on the evidence. This is precisely what the bat metaphor captures: in the sunshine of actual facts, presumptions have no work to do.

The Quantum of Proof in Rebuttal

When the court draws a presumption, whether under may presume or shall presume, the opposite party must rebut it. But the standard of rebuttal is not uniform. For a may presume, it is sufficient if the evidence offered in rebuttal raises a reasonable doubt — if the explanation offered is not inherently improbable and the court finds it reasonably credible, the presumption falls. For a shall presume, the standard is higher. In Dhanvantrai Kundanlal v. Maharashtra (AIR 1964 SC 575), the Supreme Court clarified that the proof required to rebut a mandatory shall presume must be of greater quality than mere plausibility. Applying this to the specific context of Section 113A of the Indian Evidence Act (now Section 117 of the BSA) relating to abetment of suicide by a married woman, or Section 113B (now Section 118 of the BSA) on dowry death, the mandatory presumption once raised can be displaced only by evidence that clearly and convincingly shows the absence of the presumed fact — not by a shadow of doubt.

Function and Purpose of Presumptions

Presumptions serve a vital institutional function. They are, as one author put it, devices by which the law bridges the gulf between one fact and another, when the gulf is so wide that normal rules of evidence cannot cross it. They prevent injustice in cases where direct proof is practically impossible. They shift the burden of proof to the party better placed to explain a situation. And they reflect the accumulated wisdom of human experience about how things ordinarily happen.

But the bat metaphor reminds us of their proper limits. A bat thrives in darkness and finds its way without light. But when dawn comes, it returns to its roost. Presumptions too must yield to the light of proved facts. The moment a fact ceases to be doubtful — because direct evidence illuminates it — the presumption that governed it in the absence of such evidence has no further role to play. To apply a presumption against clear evidence is to prefer darkness over light, and no sound system of justice can permit that.

It is this fundamental insight that the Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC 576 captured when it said: "While the truth or fact is known, there is no need or room for any presumption. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue."

That, in the end, is the true place of presumptions in the law of evidence — neither more than, nor less than, what they are: the bats of the law, faithful and necessary in the twilight, but always ready to yield their place to the light.