Hello friends, in this article Section 4 of CPC: What is presumption, definition and how many types of presumption are there. An attempt has been made to explain in simple words what is meant by can assume, will assume and conclusive evidence.
What is the Presumption
Presumption has an important place in evidence law. According to the law of evidence, generally any fact has to be proved by evidence. But sometimes there are some facts which are considered proven on the basis of assumption without any evidence. That is, Presumption is an inference of a fact which is extracted from some other known or proven fact.
According to Russell – When we infer some other fact on the basis of existence of some fact, then this inference is called Presumption.
When the Honorable Court assumes the existence of a fact, unless it is refuted, it is called presumption. The party in whose favor the presumption is made is relieved of the burden of proving that fact. A presumption is not a proof.
The literal meaning of presumption is “to accept as true without investigation or evidence”, this is an assumption which is made in the absence of contrary evidence.
Read Also – Social Action Litigation and PIL in India
Definition of Presumption
According to Best – Where a clear conclusion cannot be drawn about the truth or falsity of a fact, then the presumption is to make a positive or negative inference about its truth or falsity on the basis of probable logic from an accepted or established fact.
No specific definition of presumption has been given in Section 4 of the Indian Evidence Act, 1872, whereas in it, it has been mentioned that “can presumption, will make presumption and conclusive evidence”, on the basis of which presumption can be used to establish the existence of any fact. means a positive or negative estimate,
The inference which the court draws on the basis of logic from any other fact which is universally accepted or which can be judicially ignored or which has been proved in a manner that provides satisfaction to the court.
Presumption Means – A decision or inference of the existence of a fact is made without evidence, on the basis of some other fact, which is already proven or which is currently assumed to be proven. This is an assumption that is made in the absence of contrary evidence and the sub-assumption does not require any evidence or fact checking.
Regarding the presumption, in the case of Bir Singh vs Bachani, it has been said that any fact which is doubtful can be decided by proving another fact. (A.I.R. Punjab 800)
Example – If smoke is coming out from a place, then after seeing it we immediately assume without any evidence that there must be a fire there or there is a fire, this is called presumption.
Read Also – What is Fact : Definition and Type of Fact | Section 3 evidence act
Presumption in Section 4
There are three types of presumptions in Section 4 of the Indian Evidence Act, 1872, which are as follows –
(i) May presume
According to Section 4 – “Wherever it is provided by this Act that the Court may assumption of any fact, the Court may either deem such fact to be proved, if and until it is disproved, or the evidence thereof Will be able to demand.”
Thus, it provides discretion to the court to infer or not to infer any fact, Under this, where the court May presume any fact, it will –
(i) treat such fact as proved until it is disproved, or
(ii) Demand proof of such fact.
While presuming any fact, the court can consider that fact as proved, sections 86, 87, 88, 90, 114, 118 come under this.
Read Also – Social Action Litigation and PIL in India
(ii) Shall presume
According to Section 4 of the Evidence Act – “Wherever it is specified by this Act that the Court shall assumption of any fact, the Court shall treat such fact as proved unless and until it is disproved.”
Thus, “shall assume” means that the court is bound to consider a fact as proved, unless it has been disproved. In simple words, “will assume” means – an irrefutable and conclusive assumption. (A.I.R. 1927 Allahabad 810)
Example – If an accused in the crime of murder claims to be of unsound mind and falls under the exceptions, then he will have to prove such unsound mind, because the court presupposes the absence of such circumstances.
In the case of Sridhar De vs. Kalpana De, the court determined that “where the fact of solemnization of marriage is proved, the court will assume that all the rituals of marriage have been completed, but Unless the legality and validity of the marriage is in question on this basis. (A.I.R. 1987, Calcutta 213)
Example – When nothing is heard for a period of seven years or more about any person concerned, about whom, if he had been alive, he would have heard, then the Court shall presume that the person concerned has died, such Death is also called ‘civil death’.
The main difference between presumption may and assumption shall is the discretionary power of the court. In ‘shall assume’, the court has the discretionary power to make or not make a determination, whereas in “shall assume” there is no such discretionary power.
(iii) Conclusive Proof
Of all the presumptions, “conclusive evidence” is important and strongest. To prove this, the court does not give sanction to the opposite party nor does the plaintiff have to prove that fact.
According to Section 4 of this Act – “Where a fact has been declared by this Act to be conclusive proof of any other fact, the Court shall, on the proving of one fact, treat the other as proved and for the purpose of disproving it, Will not allow evidence to be given.”
Section 112 of the Indian Evidence Act, 1872 is a good example of conclusive evidence, it states that –
“The fact that a person was born within 280 days of the subordination or dissolution of a valid marriage between his mother and a man, while the mother remained 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 mutual access at any time when he could have been conceived.”
Thus, conclusive evidence is an inference that cannot be proven otherwise by any contrary evidence. This is an irrefutable assumption of law which the court considers final. Thus “irrefutable assumption of law” is also called conclusive evidence.
Read Also – Causes of Crime : Top 7 causes of crime in criminology
Types of presumption in evidence law
In the Indian Evidence Act, 1872, there are generally three types of presumptions – (i) Presumption of fact (ii) assumption of law (iii) Mixed presumption of fact and law.
(i) Presumption of Fact
Such inferences which are naturally derived from observation of the sequence of nature and creation of human mind are called assumption of fact. presumptions of fact are called Prijamityon Hominis in Latin.
This assumption is innumerable, because there are countless situations in human life. The assumption of fact is similar to “may presumption” and this presumption is always rebuttable, it has been described in sections 86, 87, 88, 90 and 114 of the Act.
According to Section 4 – The court has the right to make any assumption on the basis of any fact at its discretion, which assumption can be in relation to any right, ability or disability. Thus, Section 4 gives the court the discretion to assume the existence of any fact, that is, the court has the discretion whether to assume any fact or not.
Example – If stolen goods are recovered from the possession of a person immediately after the theft, then the court can assume that he is the thief himself or that he received the goods knowing that they were stolen. Since the presumption of fact is rebuttable, the person can refute the assumption that the person himself is not a thief and that the goods are also not stolen by evidence.
(ii) Presumption of law
Any presumption which the court is bound to accept as per the provisions of any law is called presumption of law. This presumption is based on the rules of law and the court does not have discretion regarding such presumption.
This provision under section 4 orders the court that such facts shall be deemed to be proved unless evidence is given by the interested party to disprove the same. The assumption of law are of essential nature which the court is bound to follow.
Example – According to Section 108, when nothing has been heard about a person for a period of seven years or more that that person is alive, then it is assumed that he is dead, if any If a person says that he is still alive, then he (the person who says he is alive) will have to prove this fact.
There are two types of concepts of law –
Rebuttable presumption
The rebuttable assumption of law comes under the word “presumption shall” mentioned in Section 4, which has been described earlier. Rebuttable presumptions are inferences which the court is bound to draw unless rebutted by opposing evidence.
The effect of this presumption is that the person in whose favor such assumption is made is acquitted from the burden of proving the fact and the burden of proving that fact falls on the opponent. This type of subsumption is made when there is no doubt left.
The concept of law tells us how much evidence is necessary to prove an allegation and these facts are such that if any evidence contrary to them is given then they become rebuttable, otherwise they are considered conclusive. It has been described in Sections 79 to 85 and Section 105 of the Indian Evidence Act.
Example – A person is considered innocent until the contrary is proven.
Irrefutable or conclusive presumption
An irrefutable presumption is also called conclusive evidence or conclusive evidence. These are those indisputable rules of law which cannot be proved otherwise by any contrary evidence. According to some writers, irrefutable assumptions are not any kind of assumption but they are legal rules.
The irrefutable presumption has been studied in detail in sections 41, 112, 113, 115 and 117 of this Act.
Example – Under Section 82 of the Indian Penal Code, if any crime is committed by a child below seven years of age, then it is not considered a crime.
(iii) Mixed presumption of fact or law
These are such assumptions whose position is between the assumptions of fact and the assumptions of law; mixed presumptions have not been given place in the Indian Evidence Act.
Difference between presumptions of fact and law
(i) The concept of fact is derived on the basis of natural laws, human experiences and prevalent practices, whereas the sub-concept of law is established at the level of judicial rules and has become a part of law.
(ii) The basis of assumption of fact is logic, but the basis of assumption of law is the provisions of law.
(iii) The presumption of fact is rebuttable, whereas the presumption of law is conclusive in the absence of rebuttal.
(iv) The court can ignore the assumptions of fact, but the court cannot ignore the presumption of law because it is of essential nature.
(v) The status of sub-concept of fact is uncertain and changeable, but the status of sub-concept of law is definite and uniform.
Important Articles
What is a Dying Declaration: conditions for its admissibility as evidence? Sec. 32 (1)
Section 9: What is suit of civil Nature under CPC? | Can the court test all civil promises
What are the essential elements of crime? | Criminal Law
Reference – Indian Evidence Act, 1872 17th Edition (Rajaram Yadav)
Disclaimer :- This notes is intended to provide information only. If you are seeking advice on any matters relating to information on this website, you should – where appropriate – contact us directly with your specific query. However, we may have made mistakes and we will not be responsible for any loss or damage of any kind arising because of the usage of this information.