Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-The Court may presume the existence of certain facts [Section 119] 

1. Meaning of Presumptions of Fact
Presumptions of fact are logical and reasonable inferences which a Court draws from ordinary human experience, conduct, and surrounding circumstances. These are also known as natural or material presumptions.

• They are essentially instances of circumstantial evidence.
• The law recognises that proving every fact strictly would make administration of justice impracticable.
• Therefore, Courts are permitted to rely on common sense and human probabilities.
• Natural presumptions are generally rebuttable, and the opposing party may disprove them by leading evidence.

2. Statutory Provision: Section 119(1)Section 119(1) provides that:
The Court may presume the existence of any fact which it thinks likely to have happened, having regard to:

• the common course of natural events,
• human conduct, and
• public and private business,

in relation to the facts of the particular case.
👉 The word “may” signifies discretion and not compulsion.

3. Illustrations under Section 119(1)The Court may presume that:

• (a) A person found in possession of stolen goods soon after theft is either the thief or has received the goods knowing them to be stolen, unless he explains possession.
• (b) An accomplice is unworthy of credit unless corroborated in material particulars.
• (c) A bill of exchange accepted or endorsed was accepted or endorsed for good consideration.
• (d) A thing or state of things shown to exist recently continues to exist.
• (e) Judicial and official acts have been regularly performed.
• (f) The common course of business has been followed.
• (g) Evidence which could be produced but is not produced would, if produced, be unfavourable to the person withholding it.
• (h) If a person refuses to answer a question which he is not legally compelled to answer, the answer would be unfavourable.
• (i) When a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

4. Section 119(2): Caution in Applying PresumptionsWhile considering whether a presumption should be drawn, the Court must also consider relevant surrounding circumstances, such as:

• A shopkeeper regularly receiving money may innocently possess a marked stolen coin.
• An accomplice of high character may still be reliable.
• Independent corroboration by multiple accused reduces chances of fabrication.
• Influence, floods, exceptional circumstances, postal disruption, privacy concerns, or theft of documents may weaken presumptions.

👉 This ensures presumptions are not applied mechanically.

5. Scope and Nature of Section 119This Section embodies rules of natural justice and common sense.
Key points:

• Presumptions are discretionary, not mandatory.
• Courts must apply their judicial mind.
• Illustrations are not exhaustive, only illustrative.

6. Categories of Presumptions under Section 119Presumptions may arise from:

1. Natural events – e.g., continuity of a state of things (Illustration d)
2. Human conduct – e.g., possession of stolen goods, accomplice testimony (a, b, g, h, i)
3. Public and private business – e.g., consideration in bills, regularity of official acts (c, e, f)

A. Court’s Discretion to Presume Facts

• Courts have wide discretionary powers.
• A presumption may arise where a fact would ordinarily occur.
• The party denying the presumption bears the burden of rebuttal.
• The expression “may” cannot be converted into “must.”

In M. Narsinga Rao v. State of Andhra Pradesh, the Supreme Court held:

• Presumption is an inference drawn from proved facts.
• It represents prudent reasoning, not a final conclusion.
• It indicates shifting of burden of proof until rebutted.

B. Recovery of Stolen Property (Illustration a)Essential ConditionsTo raise this presumption, prosecution must prove:

1. The property is stolen property.
2. Recovery is soon after theft (recent possession).
3. Possession is exclusive.

If possession is remote in time or not exclusive, presumption weakens.
Extension to Graver Offences

• In Tulsiram Kanu v. State, the presumption was extended to robbery and murder if part of the same transaction.
• In Limbaji v. State of Maharashtra, recovery of incriminating articles soon after the incident justified presumption of guilt.
• In Mukund alias Kundu Mishra v. State of M.P., possession of stolen goods supported presumption of robbery as well as murder.

Key Principles:

• Presumptions are rebuttable.
• Burden shifts once presumption is drawn.
• Courts must apply common sense and caution.

C. Presumption regarding Accomplice Testimony (Illustration b)An accomplice is presumed unreliable unless corroborated in material particulars.

• Must be read with Section 138 BSA, which makes accomplice a competent witness.
• Under BSA, 2023, corroboration is treated more strictly than under the old Act.

Meaning of Accomplice

• A guilty associate or partner in crime.
• Includes principals, accessories, abettors, and receivers of stolen goods.
• Mere knowledge of crime is insufficient.

Rationale

• Accomplice may lie to shift blame or gain pardon.
• Hence, corroboration is required as a rule of prudence.

In Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, it was held:

• Conviction based solely on accomplice evidence is legal but unsafe without corroboration.

Rules of Corroboration

• Not every detail needs confirmation.
• Evidence must connect accused with crime.
• Must come from independent source.
• May be circumstantial.

D. Presumption as to Bill of Exchange (Illustration c)

• Bills and promissory notes are presumed to be for valuable consideration.
• Presumption weakens if acceptor is young, ignorant, or under influence of drawer.
• Absence of proof of consideration rebuts presumption.

E. Presumption of Continuity (Illustration d)

• A state of affairs once proved is presumed to continue.
• Court must consider possible interruptions (e.g., floods).
• Presumption is discretionary.

F. Presumption of Regularity of Judicial and Official Acts (Illustration e)

• Official and judicial acts are presumed to be regularly performed.
• Exceptional circumstances may rebut the presumption.
• Example: Dispatch of samples by Food Inspector.

G. Presumption from Common Course of Business (Illustration f)

• Business transactions are presumed to follow normal routine.
• Letters properly posted are presumed delivered.
• Postal disruptions may rebut presumption.

Presumption of Marriage

• Long cohabitation raises strong presumption of marriage.
• Cases: Tulsa v. Durghatiya, Kattukandi Edathil Krishnan v. Valsan
• Burden lies heavily on person denying marriage.

H. Presumption from Withholding Evidence (Illustration g)

• Non-production of available evidence permits adverse inference.
• Court must consider reasons such as privacy or reputation.

In Suresh v. State of Karnataka, it was held:

• Adverse inference cannot be drawn unless prosecution first establishes foundational facts like presence of accused.

I. Refusal to Answer (Illustration h)

• If a person refuses to answer a non-compulsory question, Court may presume the answer would be unfavourable.
• But Court must consider unrelated potential loss.

J. Presumption of Discharge of Debt (Illustration i)

• When debt instrument is in debtor’s possession, debt is presumed discharged.
• Creditor must rebut this presumption.
• Presumption may fail if document was stolen.

K. Illustrations
Not Exhaustive
​The illustrations under Section 119 are examples only. Courts may draw other presumptions based on:

• human conduct,
• natural events, and
• public and private business practices.