May Presume, Shall Presume and Conclusive Proof under Evidence Law


Every fact, on the basis of which a party to a proceeding wants to take a judgement, must be proved. No court while deciding a case shall place reliance on a fact unless and until it has been proved according to the rules laid down in the Evidence Act. But the Law of Evidence has provided that a court can take into consideration certain facts even without calling for a proof of them i.e., the court may presume certain things. In the Law of Evidence the word ‘presumption’ is used to designate an inference, affirmative or negative, of the existence of some fact, drawn by a judicial tribunal by the process of probable reasoning from some matter of fact either judicially noticed  or admitted or established by a legal evidence to the satisfaction of the tribunal.

The presumptions or inference are based upon the wide experience of a connection existing between two facts. Presumptions are drawn from the course of nature for instance, that the night will follow day, the summer will follow the winter, etc. They may also be drawn from the course of human affairs from the usage of the society and transactions in business, for example, a watch of Ram is stolen and soon after Shyam is found wearing it. There shall be a natural inference (presumption) that Shyam either stolen the watch himself or received it from some thief knowing it to be stolen.

The case of Tukaram v. State of Maharashtra (1979) 2 SCC 143, was decided on considering the facts of Mathura Rape case and while adjudicating the case the court justified the necissity of such presumptions. The court also explained that presumptions have a wider scope as they don’t only help the victim in the fast trial but also in giving direction to the case.


Presumptions of fact are inferences which are naturally drawn from the observation of the course of nature and the constitution of human mind. Section 114 of the act and the illustrations afterwards, are examples of presumption of facts, and also Sections 86, 87, 88 & 90. These presumptions are generally rebuttable.

In Mangal Ram & Anor v. State of Madhya Pradesh 1998, the wife of the accused was living with her parents for many years and had not visited her matrimonial home from a long time. But within one month of returning to her matrimonial home, she committed suicide. Therefore the court presumed the circumstances that the accused is responsible for the death of the lady and the case comes under section 113B of the Indian Evidence Act. But the husband and her in-laws proved that the death was not caused because of the reasons subjected to cruelty. The court in that matter said that the presumption was of rebuttable nature and the presumption can’t be sustained anymore, hence the accused was acquitted.


Presumptions of law are such inferences and beliefs which are established or assumed by the law itself. It can be further divided into-

  1. Rebuttable: This kind of presumption arises when presumptions of law are certain legal rules, defining the amount of evidence requisite to support a particular allegation, which facts being proved, maybe either explained away or rebutted by evidence to the contrary, but are conclusive in absence of such evidence.
  2. Irrebuttable: The conclusive or irrebuttable presumptions of law are those legal rules which are not overcome by any evidence that the fact is otherwise. Example- Section 82 of the Indian Penal Code, wherein it is laid down that nothing is an offence committed by a child under the age of 7 years.


Section 4 of the act provides for the definitions of the following three terms-

  • May presume”- 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.
  • Shall presume”- 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.
  • Conclusive proof”- 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.


Here the court has the discretion to presume a fact or not to presume it. Section 90 of the Evidence Act provides that when a document purporting to be thirty years old is produced from a proper custody, the court may presume that the document was signed and written by the person by whom it purported and is said to have been written written and signed. If the document proposed before the court is thirty years old, the court may dispense with the proof of it and  read the document in evidence without calling for the proof of it. The court may also call for the proof of it and may order that the document will not be read in evidence without being proved. Section 88 of the Evidence Act lays down that when a telegram has been received, the court may presume that the message forwarded from a telegraph office to a person is the same which was delivered for transmission at the office from which the message was sent.


Whenever there is a provision to the effect that the court shall presume a fact, the court cannot exercise its discretion, but in this case the court will be at liberty to allow the opposite party to adduce evidence to disprove the fact so presumed and if the opposite party is successful in doing that, the court shall not presume the fact. In the Indian Evidence Act the words “shall presume” indicate that the presumption therein is unrebuttable.


Whenever it is mentioned that a fact is a “conclusive proof” of the other, the court has no discretion at all. It cannot call upon a party to prove that fact nor it can allow the opposite party to adduce evidence to disprove it. Section 41 of the Evidence Act provides inter alia that a final judgement, order or decree of a competent court in exercise of matrimonial jurisdiction is a conclusive proof of that legal character.

Author: Rudra Gupta,
B.A. LL.B. 5th Semester, Aligarh Muslim University.

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