The presumption has an important place in evidence law. According to evidence law, any fact has to be proved by any evidence. But, sometimes there are few such facts which are deemed to be proved on the grounds of presumption. Hence, the presumption of any fact is such conclusion or interference of its existence which without evidence, on the basis of a few other facts, is already proved or deemed to be proved in present.

According to Best, where the truth or untruth of a fact cannot clearly be concluded, there the positive or negative estimation about its truth or untruth, with an admitted or established fact, on the basis of probable logic is presumption.

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Smoking coming out from a place may lead to presumption without any evidence that there must have been a fire. Presumptions are of three types- Presumption of fact, the presumption of law and mixed presumption of law and fact.

May presume

Section 4 of the Indian Evidence Act, 1872 defines the term ‘May presume’. According to it: “Whenever it is provided by this Act, that 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.” Thus, “May presume” provides discretion to court, to presume or not, regarding any act. Section 4 provides that where a court presumes any fact, it shall

1. Either regard such fact as proved unless it is disproved;
2. May call for proof of it.

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When a man has not been heard of for seven years by those who would have naturally heard of him if he had been alive, his death shall be presumed. Such death is called ‘civil court.’

Shall presume

Section 4 of the Act defines the term ‘Shall presume’. According to it ‘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. Thus, ‘Shall presume’ means that- A court shall presume any fact until it is disproved. In other words, ‘Shall presume’ means- irrevocable and define presumption.

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Where any accused charged of murder, pleads of exception owing to his soundness of mind, there he has to prove his unsoundness because court shall presume the absence of such circumstances. In the case of Sridhar Dey versus Kalplana Dey (A.I.R. 1987 Kolkata 213), it has been held by the High Court of Kolkata that, where any marriage is proved to have been celebrated, the court shall presume that the ceremonies of marriage have been completed, but only until the marriage has been completed, but only until the marriage is not questionable on the ground of validity of recognition.

In this context, the case of State of Andhra Pradesh versus C. Uma. Maheshwar Rao (A.I.R. 2004 S.C. 2042) is quotable. In this case, a question as to the interpretation of the word ‘Shall presume’ under section 20 of Prevention of Corruption Act, 1988 was involved. It has been stated in section 20 that- “where it is proved I the trial under criminal offences under Section 7 or 13 that where an accused has accepted or obtained or attempted of or given consent of any remuneration of any valuable thing other than the valid remuneration or valuable thing has been accepted or disdained with such motive or Reward.” The application of the term ‘shall be presumed’ requires that any invalid remuneration has been obtained or accepted or attempt of it or given consent to it.

The difference between the terms “May Presume” and “Shall Presume” has been clarified by the High Court of Patna in the case of Hadrian versus Dookhoo (A.I.R. 1993, Patna 129). According to Court- The main difference between ‘May Presume’ and Shall Presume’ is the discretionary power to presume or not whereas there is no discretionary power in ‘Shall presume’.

Conclusive proof

Conclusive proof is the most important and weighty of all, Court does not allow disproving it. It has been said about the conclusive proof in Section 4 of the Act that- “Where 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.

Section 112 of the Indian Evidence Act, 1872 is a good example of conclusive proof. It has been said in section 112 that- “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, has no access to each other at any time when he could have been begotten.”

But the entry of date of birth in School admission register was not considered conclusive proof of date of birth or age of a person by, the High Court of Orissa in the case of Bami Devi versus Krishanchandra Swarn (A.I.R. 2004 Orissa 14).