Scroll Top



In a general sense, presumption means to presume certain things or facts by just seeing or knowing the circumstances. It is really common for us to presume things at the very first instance but if we are talking about the law, then it is something that prescribes the things to the point or in a very detailed manner rather than the general assumptions, so now the question arises in our mind that do the eyes of law also presume things? Does the law give justice on the basis of presumption? The answer is yes, it does. How? Let’s discuss it in the language of law.


Presumption means the inferences of court which are based on the probable event. During the interpretation of statue, the court may or shall presume the facts which are either rebuttable or irrebuttable presumption.

 In the case of N. Narsinga Rao v. State of Andhra Pradesh, it was observed that, “The law itself gives the discretion to the courts that they may or shall sometimes, presume the facts on the foundation of the other evidences obtained in relation with it, to drawn the unknown facts of that particular case. And for knowing or to draw the actual fact, it becomes necessary for the courts to presume certain assertions and inferences. When the evidences are unavailable, the courts have right to go through this process. It is envisaged in Section 114 of the Evidence Act. It was held that the process of presumption is useful until it is disapproved or rebutted from any party”.


Court can use the process of presumption in the different ways that are basically discussed under the Indian Evidence Act. Section 4 of Indian Evidence Act provides three types of presumption process or principles, they are:

‘May Presume’: In this case, court has discretion that it may presume facts or not. These are rebuttable. The courts presume the facts, here, until it is disapproved or rebutted.

Section 114 of Indian Evidence Act clarifies this term. It says:

“The Court may presume certain facts or evidence that it may be happened in that particular case, on the basis of natural human conducts or circumstantial situations. For instance, the court may presume that the accomplice is undeserving, unless corroborated in material facts of particular case. And it is also presumption that the acts are always on performance, until they had been criminalize”.

‘Shall presume’: Here, the court has no discretionary power; it shall have to presume the facts by viewing other evidences of the case, although it can be disapproved at the option of either party.

‘Conclusive Proof’: In the case of Conclusive proof, the court shall presume the feasible event or evidence through the corroborative evidence of the case. These are irrefutable, meaning the court shall presume facts as evidence and it cannot be rebutted or questionable by any party. It is covered under the Presumption of Law.


Presumption has two kinds:

1). Presumption of Facts.

2). Presumption of Laws.


These are the general inferences, which are derived from the logic and experiences of the layman. As the name suggests, it is a presumption or hypothesis of events, obtained by other corroborative evidences. It follows the concept of ‘May presume’. These presumptions are rebuttable and the courts are not obliged to presume here, they are liberal and not conclusive.

Illustration: If any lost or stolen property found in the possession of a person ‘X’. At the very first instance, the hypothesis will create into everyone’s mind that the person ‘X’ is either the thief or he has got that product through the wrong means.


These presumptions are sourced from law and judicial practices. It follows the concept of ‘Shall presume’ or ‘Conclusive proof’. Courts compulsorily need to imply this presumption, but some are rebuttable and some are not. It can be either Rebuttable presumption of law or Irrefutable presumption of law.

Example of Rebuttable Presumption of Law:

  1. A child from a married couple is deemed to be a legitimate child, born out of their wedlock.
  2. If a couple (married or not) lives in together for a long span of time, they shall be presumed as the married couple. Tulsa v. Durghatiya, 2008 was the case where the court held that-

“There would be presumption in favor of wedlock if the partners lived together for long spell as husband and wife; but it would be rebuttable and heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place”.

Example of Irrebuttable Presumptions of Law: Section 82 of Indian Penal Code. It says that any child below seven years cannot be held as criminal. The doctrine of ‘DOLI INCAPAX’ provides that no children can be held guilty for any offence as they are incapable of understanding or doing such things.


Presumption of innocence is very common principle that the court follows and also it is intimate with the legal person as well as with the layman. This principle is one of the rights of accused person in any trial and not even India but several international covenants and laws have also upheld this rule. From this principle, a notorious slogan given by renowned persons, catch up in mind:

“Even if ninety nine guilty may acquitted, one innocent should not be convicted”. By this rule the accused may get benefit if the prosecution unable to prove his guilt, beyond reasonable doubt. Also the general presumption is that the burden of proof lies on the prosecution. One legal maxim is also there as “Actori Incumbit Onus Probandi” which means that the burden of proof lies on the prosecution, although it has some exceptions with it. This principle is said to be the golden rule of judiciary system but it also acquits many anti-social elements of the society that affects inauspiciously to society and sometimes dismay to victim. Different countries have their different views on it and even many countries do not follow this rule and according to them, the accused is guilty until he is not proven innocent. But India heeds that:

 “No one shall be guilty until proven guilty”.


Presumption is an inference of the facts obtained by the corroborated evidences and it has a vital role in the evidence act. It depends completely on the reasoning or on the general mind set of the judge. The judges can apply this process by rely on that mind set or reasoning or on his intelligence which the mind of any layman also think real or happened act. It can be final also but until it gets rebutted or on objection on the option of any party. It is very true that the justice cannot be given with the steam of probability but if there are no evidences or witnesses are available; the court has to take this process on mind.

Although the courts are not bound here and they can discard it anytime during the trial, if it deems not fit. And if the court thinks it fit and no objections are involved there, the court can rely on the presumption and treat it tantamount to evidence.

Author(s) Name: Pooja Katre (Renaissance Law College, D.A.V.V. University, Indore)

Related Posts