Research Paper

Subject: Evidence
Title: Presumtions Under Evidence Act.
Name: Shama Shahjahan Moosa
Class: 5th Year BLS LLB
Roll No:7
Professor: Mr Anant Pawar

28/03/2024
Students Signature
Kalamboli
 PLAGIARISM & COPYRIGHT DECLARATION FORM

Name of the student: Shama Moosa Shahjahan Nirmala

Roll no: 7, 5th BLS LL. B
Submitted to Teacher Name: Mr. Anant Pawar
Topic : Presumtions Under Evidence Act.
This is to certify that I, Shama Moosa have done all the work applying original
efforts in my Research work title: Presumtions Under Evidence Act, Submitted
to KLE SOCIETY’S KLE College of Law for the Internal Research paper in the
subject of Evidence submitted to Professor Anant Pawar, on 28/03/2024. The
research work presented is free from Plagiarism and Copyright infringement. If
any violation of copyright or plagiarism occurs, it would be my sole
responsibility.

Place: - Kalamboli Signature: Date: -

28/03/2024
 ACKNOWLEDGEMENT

I deem it my proud privilege to express my indebtedness and sincere thanks to all who have
in various ways helped in the successful completion of this research paper titled
“Presumtions Under Evidence Act. A CRITICAL EXAMINATION ” and without their
invaluable support this research would not have been a reality.
I am extremely thankful to my professor Mr. Anant Pawar, faculty of law who was
constant source of inspiration and knowledge at all levels through my entire research and
who took lot of efforts in providing guidance.
Finally, I expressed my most sincere gratitude to my colleagues whose encouragement,
suggestions, and criticism have contributed immensely to the evolution of my ideas on this
research paper.

Signature
Table of Contents
1. WHAT IS PRESUMPTION
1
2. ALL PRESUMPTIONS ARE REBUTTABLE
3
2.1. HOW MAY PRESUMPTION IS REBUTTABLE
3
2.2. HOW SHALL PRESUMPTION IS REBUTTABLE
3
2.3. HOW CONCLUSIVE PRESUMPTION IS REBUTTABLE
4
3. MAY PRESUMPTION
5
4. SHALL PRESUMPTION
10
5. CONCLUSIVE PRESUMPTION
15
5.1 The Provisions of Conclusive Presumption Under the Evidence Act, 1872
15
5.1.1. Section 41 of the Act of 1872
.........................................................................................................................................
15
5.1.2. The Provisions of S. 112 As to Presumption of Legitimacy
17
6. Conclusive proof of legitimacy
18
6.1. NON-ACCESS
19
7. Presumption Of Legitimacy Under S. 112 And Muslim Law
21
7.1. Different but not conflicting
22
8. THE EVIDENCE (AMENDMENT) ACT 20222: WHAT’S NEW IN THE FIELD
OF PRESUMPTION?
25
9. A COMPARATIVE ANALYSIS OF PRESUMPTIONS IN DIFFERENT JURISDICTIONS
27
9.1. Presumptions under Federal Rules of Evidence in the US
27
9.1.1. Federal Rules of Evidence
.........................................................................................................................................
 27
9.1.2. Presumptions regarding Judicial notice
.........................................................................................................................................
28
9.1.3. Presumptions in Civil Cases
.........................................................................................................................................
28
9.1.4. Applying State law to presumptions in Civil cases
.........................................................................................................................................
29
9.2. Presumptions under English Law
29
10. RECOMMENDATIONS
30
10.1. Alteration of section 80
30
11. CONCLUDING REMARKS
32
12. BIBLIOGRAPHY
33
 1

A Critical Analysis of the Provisions Regarding Different Kinds of

“Presumptions” in the Evidence Act, 1872

Abstract: The provisions of presumptions are usually available in every legal system around the
world. We are not an exception to this. The Evidence Act of 1872 contains the provisions of
presumption in our country. Presumption is a belief, not knowledge. It is the act of believing that
something is true without having any proof. There are many things that the court does not allow to
be proved for the sake of convenience of trial. If they are allowed to be proved, the proceedings
will be lengthy and hampered and it will not come to an end. Hence, the power to presume
something without having any proof of it has been given to the Court.
The Act, in Section 4, provides for 3 kinds of presumptions, i.e., “May”, “Shall” and “Conclusive
Proof”. As a general principle of evidence law, all presumptions are rebuttable, even the conclusive
proof, though sometimes it is erroneously argued that conclusive proof cannot be rebutted. The
Evidence (Amendment) Act, 2022 has introduced some new provisions relating to presumptions. In
this paper, we will see the impact of these amendments.
There will also be a comparative discussion on “presumption of legitimacy” under the religious
laws and the Evidence Act, 1872. We have also attempted to make a comparison of presumption
related laws of other jurisdictions with ours.

1. INTRODUCTION: WHAT IS PRESUMPTION

Presumption denotes an inference of fact drawn from other known or proved facts. It means a rule
of law that Courts shall draw a particular inference from a particular fact or from particular
evidence unless and until the truth of such inference is disproved.1
The ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah),
propositions taken to be true unless there was reason to believe otherwise, such as "One does not
ordinarily pay a debt before term."2 The same concept was found in ancient Roman law, where,
for example, if there was doubt as to whether a child was really the issue of someone who had left
money in a will, the presumption was in favour of the child.3

1
M.A. Karim, Law of Evidence, 2nd Edition (Tawfika Karim, 2020)
2
J. Franklin, The Science of Conjecture: Evidence and Probability Before Pascal (Baltimore: Johns Hopkins
University Press, 2001), 6.
3
Ibid, 9.
 2

Medieval Roman and canon law graded presumptions according to strength: light, medium or
probable, and violent. These gradings and many individual presumptions were taken over into
English law in the seventeenth century by Edward Coke.4

Later on, during the British Period, our leading statute on evidence law, which included different
presumptions, was drafted by Sir James Fitzjames Stephen. What he tried to do was use the
subcontinent as an experiment for the already established English law principles. We ended up
incorporating most of the principles of English law, including the presumptions. This is apparent
from the fact that we also graded presumptions in three categories according to their strength and
the evidence needed to dislodge them.

Section 4 of the Evidence Act, 1872 provides for the presumptions that are allowed under the
scheme of our law. The “may”, “shall”, and “conclusive” presumptions are elaborated at length
later in the paper. On the onset, we would like to state some of the important principles that need
to be kept on mind while examining these provisions.
1. All presumptions are rebuttable;
2. Most of the May and Shall presumptions are related to documents;
3. There is no conclusive presumption relating to documents;
4. S. 114 provides for general presumption that arise in a course of business or as a routine
function;
5. Conclusive presumption and conclusive evidence are one and the same. There is no
difference between these two. In both cases, evidence cannot be allowed to rebut the
presumption, unless the provision itself prescribes such;5

Presumption Another name Strength Proof for Sections

rebuttal
May Permissive/ Weakest Easy proof 86, 87, 88,
discretionary 88A, 89A, 90,
90A, 114
Shall Obligatory Stronger Better proof 79-85, 89

Conclusive Absolute / Strongest Best proof 41,112

irrebuttable

4
Ibid, 60-61
5
AIR 1963 SC 151
 3

2. ALL PRESUMPTIONS ARE REBUTTABLE

It is generally said that presumptions can be two types –

1) Rebuttable Presumption & 2) Irrebuttable presumption.

But if we deeply observe the sections relating to presumption in Evidence Act-1872, we can notice
that all presumptions are rebuttable even conclusive presumption.

2.1. HOW MAY PRESUMPTION IS REBUTTABLE:

If we can notice the section 4 of the Evidence Act-1872 says that-

“Whenever it is provided by this act that the court may presume a fact, it may either such fact as
proved, unless and until it is disproved, or may call for proof of it.”

The word “May” indicates the discretion power of the court about a fact. May presumption can
be easily rebutted. If you don’t agree with the court, you must prove it. You are allowed to prove
that the presumption is/was wrong.

For example:

According to section 114 of the Evidence Act-1872,

“A man who is in possession of stolen goods soon after the theft, is either a thief or has received
the goods knowing them to be stolen, so he is a criminal under penal code, unless he can account
for his possession of the stolen goods.”

May presumption is always rebuttable and can be rebutted by easy proof.

2.2. HOW SHALL PRESUMPTION IS REBUTTABLE:

According to section 4 of the Evidence Act 1872-

“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”.

The word “shall” indicates that the presumption is mandatory. It is a strong presumption, but
indicates rebuttable presumption of law.
 4

Last portion of this section regard shall presumption – says that “unless or until it is disproved”.
That means the court is bound to presume but it is allowed to disprove the shall presumption. If
you don’t agree, you must prove that the presumption is not correct.

For Example:

According to section 79 of Evidence Act,

Presumption as to the certified copies of document: the court shall presume that

1. The document is genuine.

2. That the officer holds the official character
It can be rebutted, if it is proved that –

➢ Such documents are not substantially in the form and manner provided by law.
➢ If there any doubt of the official character by whom it is certified.

2.3. HOW CONCLUSIVE PRESUMPTION IS REBUTTABLE:

The main controversy is whether the conclusive proof or presumption can be rebutted. Normally,
we can see that conclusive proof is irrebuttable. But if we explain carefully the sections relating to
conclusive proof, we can see that it can also be rebutted.

According to Section 4 of the Evidence Act-1872:

“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 fact as proved and shall not allow evidence to be given for the
purpose of disproving it.”

In the section, we can observe that no evidence is allowed to disprove the conclusive presumption.
But if we look into the words – “on the proof of one fact”, it indicates that the presumption is
taken on the proof of one fact. Now if we prove that “the one fact” is not true or not genuine, then
the presumption can be rebutted. But there is no scope to rebut the presumption directly.

Section-112 is about a conclusive presumption but it also can be rebutted. Now we can see how it
can be rebutted:

According to section 112 of Evidence Act,

“Any person 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
 5

that he is legitimate son of that man, unless it can be shown that the parties to the marriage had no
access to each other at any time when he could have been begotten.”

Generally, birth during marriage is conclusive proof of legitimacy. But if it is proved that the
spouses did not have any access when the child could have been begotten. Therefore, such
conclusive proof or presumption can be rebutted with the rebuttal of no access.

Access means effective access. If the man is unable, then it cannot be termed as access.

Valid Marriage: If it is proved that the marriage was not valid, then the presumption can also be
rebutted.

We will discuss this matter more elaborately later on in the paper.

After all, we can say that All presumptions are rebuttable

3. MAY PRESUMPTION

According to section 4, may presumptions are those which are 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. Legislature by the use of the word ‘may’ instead of ‘shall’ both in the body
of the section and the illustrations shows that the court has discretion. It is not bound to raise such
presumptions but is to consider whether in all the circumstances of the particular case they should
be raised.6 On the facts and circumstances of a case the court may refuse to draw the presumption.7
Sections 86, 87, 88, 88A, 89A, 90, 90A and 114 are the provisions of may presumptions.

Features
• This presumption is permissive and not imperative.
• It is rebuttable.
• It is subject to the discretion of the court.

6
Muthukumaraswami Pillai Vs. King-Emperor, (1912) 35 Mad 397.
7
Smt. L. M. G. Saleema Vs. B. B. Gujral, (1981) (18) ACC 293 (SC).
 6

Provisions regarding May Presumption

Section Applied to Requirement Presumption

86 Certified copies Certified in common manner in use in Genuine and accurate
of foreign that country
judicial records
87 Books, maps 1) Statements are relevant facts Writers and
and charts 2) Produced for court’s inspection publishers’ names,
date and time are
correct
(No presumption as to
accuracy)
88 Telegraphic Must be forwarded Sent accurately
messages (But no presumption
as to the sender)
88A Electronic 1) Must be forwarded Sent accurately
messages 2) Communication through digital (But no presumption
devices as to the sender)
89A Physical and It must be physical or forensic It belongs to or is
forensic evidence created by the person
Evidence from whom it is
collected
90 Documents 1) Thirty years old Signatures,
thirty years old 2) Produced from proper custody handwritings,
attestation, execution
and every other part
are duly made
90A Electronic 1) Electronic records Signatures are made
records five 2) Five years old by a particular person
years old 3) Proper custody or by authorised
person in this behalf
114 Existence of Likely to have happened in the 1) usual What was likely to
certain facts course of natural events, 2) common have happened,
course of human conduct, 3) common happened in the usual
course of public and private business course
 7

Section 86: Presumption as to Certified copies of Foreign Judgment

This section lays down the provision as to certified copies of foreign judicial records. Certified
copies of foreign judicial records will be presumed to be:
1) genuine and
2) accurate.
But the presumption arises when the document is certified in the common manner used in that
country for the certification. This section contains an instance of the document which is referred
in section 65(f).

How to Rebut: This presumption can be rebutted by proving that the document is not certified in
the common manner of a country.

Section 87: Presumptions as to Books, Maps and Charts

This section lays down presumptions as to books, maps and charts. This section says that if the
court refers to any book for information on matters of public or general interest, the court may
presume that the writer or publisher’s name of the book, map or chart and the publishing time are
correct. The requirements are:
1) Statements of it are relevant facts.
2) They are produced for court’s inspection

The presumption does not indicate the actual writer or publisher. There is no presumption under
this section as to the accuracy of the book, map or chart, but as to the correctness.
How to Rebut: If it is proved that the statements are not relevant facts or are not produced for
court’s inspection, the presumption will be rebutted.

Section 88: Presumptions as to Telegraphic Messages

Telegraphic messages may be presumed to be sent accurately. The presumption arises only when
the message is forwarded by the original sender. Actually, the messages are at first sent to the
office. But this section does not indicate any presumption regarding who the sender is.

How to Rebut: If it is proved that the message was not forwarded by the office or there was any
interruption in the telegraphic line that may cause failure to send the telegraph, the presumption
will be rebutted.
 8

Section 88A: Presumption as to Digital Communication

The Court may presume the electronic messages to be sent accurately.
The one forwarded by the originator corresponds to which is fed into the receiver’s computer
or digital device. The presumption arises only when the message is forwarded by the
originator.
How to Rebut: If it is proved that the message was not forwarded by the originator or there was
any technical fault, the presumption will be rebutted.

Section 89A: Presumption as to Physical or Forensic Evidence

The court may presume that physical or forensic evidence belongs to or is created by the person
from whom it is collected.
How to Rebut: If it is proved that the evidence does not belong to or is not created by the person
from whom it was purported to be collected.
Section 90: Presumption as to Documents Thirty Years Old
In Hajari Sardar vs. Mozam Molla 8 his Lordship Rahman, J. (later C.J.) observed,
The presumption that arises under Section 90 of the Evidence Act is a presumption merely as to
the due execution and attestation of the document. Under that Section all that the court is entitled
to presume is that the signature and every other part of such document which purports to be in the
hand-writing of any particular person is in that person's hand-writing, and, in the case of a
document executed or attested, that it was duly executed and attested by the person or persons by
whom it purports to be executed and attested. It does not permit the court to presume the
correctness of the contents of the document or even to presume, where it purports to be a document
executed, as in the present case, by a purdanashin lady, that she executed it with intelligence and
without undue influence. Their Lordships of the Judicial Committee in the case of Farid-un-Nisa
vs. Mukhtar Ahmad and another9 held the same.

This section lays down the provision as to documents which are thirty years old. Such documents’
signature, handwriting of any particular person, execution and attestation may be presumed to be
duly made. But the requirements are:
1) The documents must be thirty years old.
2) They are produced from proper custody.

8
8 DLR 640
9
52 IA 42
 9

For example, A has been in possession of landed property for a long time. He produces from his
custody deeds relating to land showing his titles to it.
The presumption of this section is applicable if the document is not 30 years old at the date it is
filed in Court, but becomes 30 years old at the date its genuineness becomes the subject of proof.10
The production which entitles the Court to draw the presumption under this section as to execution
and attestation of a document is of the original and not the copy.11 Bahadur and others Vs.
Sohana and another12 held that mere fact that the document is old not enough, but as provided in
section 90 it must be 30 years old and was produced from the custody the Court considers proper.
The documents are produced from their natural place of custody in illustrations (a) and (b). The
court must therefore examine the surrounding circumstances tending to establish the connection
or the parties producing the documents with whom the document should naturally have been.

How to Rebut: If it is proved that the document is less than thirty years old or the custody is not
proper, the presumption will be rebutted.

Section 90A: Presumption as to Digital Records Five Years Old

The digital signatures may be presumed to be made by any particular person or any person on
behalf of him. But the requirements are
1) The electronic records are five years old.
2) They are produced from proper custody.

Proper custody follows the same criteria as section 90.

How to Rebut: If it is proved that the document is less than five years old or produced from
improper the custody, the presumption will be rebutted.

Section 114: Presumption of Existence of Certain Facts

This section lays down general provisions for may presumption. All facts are not required to be
proved. So, in some cases law permits the proof of other facts so related to the conflicting facts
that the proof of the related facts is a satisfactory substitute for the proof of the ultimate facts.
These are called rebuttable presumptions of facts.

10
Surendra Krishna Roy Vs. Mirza Mohammad Syed Ali, 63 IA 85.
11
Lal Bahadur Chowdhury Vs. State of Bihar, (1973) BLJR 406.
12
2 PLD 1961, Lah 387, 390.
 10

This section lays down that the Court may presume the existence of any fact that happens in 1) the
usual course of natural events, 2) common course of human conduct and 3) the common course of
public and private business in relation to the facts of the particular case. The illustrations firstly
say about the maxims and lastly exceptions to their application. Reading the illustrations as a whole
it becomes clear that the maxims or rules of prudence though of general application have no
universal application.13
For example, where tins of kerosene oil in excess of the number shown in the register of the dealer
were found in the shop of the dealer, an inference was drawn that he intended to dispose them of
in the black market.14 But if he can account for this, the presumption will be rebutted.
This section is about presumption of fact. A presumption of fact is a rule of law that a fact otherwise
doubtful may be inferred from a fact which is proved.15 But the section is not exhaustive. Because
the sources of presumption of facts are obviously innumerable, they are co-extensive with the facts,
both physical and psychological.16
How to Rebut: There may be exceptional situations in nature. If it is proved that there was any
exceptional event in the nature or exceptional human conduct or exceptional public or private
business, the presumption will be rebutted.
For example, illustration (i) lays down that if a bond is in possession of the obligor, but the
circumstances of the case are such that he may have stolen it. If it is proved that he stole the bond,
the presumption will be rebutted.

4. SHALL PRESUMPTION

The word ‘shall’ itself denotes a “strong assertion or intention or determination”. The
presumptions under the Second Clause of Sec. 4 (Shall Presume) may also be called as obligatory
presumption. According to this, the Court has no option or discretionary power in drawing a
presumption as to the existence or non-existence of a fact in issue. The Court is bound to regard a
fact as proved, unless evidence is produced to disprove it. However, “shall presume‟ is not
conclusive, but only rebuttable.
Sections 79–85 and 89, lay down the provisions relating to “Rebuttable Presumptions or Shall
Presumption” as stated below:

13
Laxman Padma Bhagat Vs. State, 67 Bombay LR 317, 344
14
Ram Lakhan Sao Vs. State, AIR 1953 P 54
15
Lawson: Presumptive Evidence, Rule 117, sub-rule (2)
16
M. Monir: Law of Evidence, P 542
 11

Section 79: Presumption as to Genuineness of Certified Copies

When a certified copy of a document is produced before the court as evidence of the original in
circumstances in which secondary evidence as admissible the law presumes that the copy is a
genuine reproduction of the original.
‘A birth certificate issued by a Municipality is the ultimate document for proof of date of birth. It
carries the presumption as to its genuineness and is admissible in evidence. The presumption is, of
course, rebuttable.’17

Presumption arises:
1) The certified copies are genuine
2) The officer holds the official character.

How to rebut: If the certificate or certified copies are not in accordance with law or there remains
suspicion regarding the official character of the person who executed the document, the
presumption arises by this section shall be rebutted.

Mohammmed Bhai Rasul Bhai Malik v. Amir Bhai Rahim Bahi Malik,18 it was held by
Gujarat High Court that a certified copy of judgement was missing and the date pronouncement
was not mentioned in the document. The document was inadmissible as evidence being
incomplete.

Section 80: Presumption as to documents produced as record of evidence

‘It is necessary for this presumption to arise that a person should have recorded his evidence before
a Court of law or before any officer authorized by law to take such evidence, or that a person
accused of any crime has recorded his confession in accordance with the law, and a copy of the
statement has been signed by the judge, magistrate or other officer before whom the statement was
recorded.

17
Dr. Singh, Avtar, “The principles of law of Evidence” 19th edition Central Law Publications ,page 439
18
AIR 1991 AII. 317
 12

When these conditions are fulfilled, the court shall presume that the document is genuine, that the
confessional statement is truly recorded and that such evidence, statement or confession was duly
recorded in accordance with the probable.’19

Presumption arises:

1) Documents are genuine.

2) Circumstances are true.
3) Confession duly taken.

How to rebut: Shall presumption under this section is compulsory. However, this can be rebutted
if the confession or statement is not duly taken in the manner prescribed law
Wazed Ali Biswas vs. The State 20 in this case Lordship Rahman, J. observed that for the
presumption raised by section 80 of the Evidence Act it is necessary that the witness should be
duly sworn and examined and that the presiding officer should have signed the deposition.

Section 81A: Presumption as to Gazettes in digital forms

The Court shall presume the genuineness of every digital record purporting to be the Official
Gazette, or purporting to be digital record directed by any law to be kept by any person, if such
digital record is kept substantially in the form required by law and is produced from proper
custody.
Explanation -Digital records are said to be in proper custody if they are in the place in which, and
under the care of the person with whom, they naturally be; but no custody is improper if it is proved
to have had a legitimate origin, or the circumstances of the particular case are such as to render
such an origin probable

Presumption arises:
1) Digital records are genuine

How to rebut: If it is found that the digital records are not produced from proper custody or not
in the prescribed form, the presumption of genuineness of digital record shall be rebutted.

19
Dr. Singh, Avtar, “The principles of law of Evidence” (19th ed Central Law Publications), p. 362
20
8 DLR 269
 13

Section 82: Presumption as to document admissible in England without proof of seal or

signature
‘This section has introduced certain kinds of British documents in our Courts which are admissible
in British Courts without proving the execution, or seal of the officer authenticating it. When such
documents are produced in our Courts, the courts shall presume that the execution and
authentication of the document are genuine without any proof.’21

How to rebut: When there is suspicion that the admissibility of the document in England or
Ireland without proof of seal or signature or stamp, this shall presumption can be rebutted.

Presumption arises:
1) Seal, stamp, signature is genuine
2)The officer holds the judicial character
This is completely an obsolete provision of law. We are no longer a colony and nor are
England and Ireland the only countries we deal with.

Section 83: Presumption as to maps or plans made by authority of Government”

‘For the presumption to be made under this section, the map must purport to have been made by
the authority of government, that is, by the government for public purposes. This section does not
deal with the admissibility of a private map, which will depend on whether it is otherwise
relevant.’22

Presumption arises:
1) Maps and plans are accurate.

How to rebut: Maps or plans made for any particular purpose or not made by any authority of
Govt is enough to rebut this presumption u/s 83 of Evidence Act.

Section 84: Presumption as to collection of laws and reports and decisions

21
Nazrul Islam, Reflections on the Law of Evidence ( 3rd Edition, Kamrul Book House, 2021)338
22
Sir Woodroffe John And Amir Ali Syed, “Commentary on law of evidence’, 18th edition, Vol. II, Lexus nexus
butterworth Wadhwa, Nagpur, PP 3362-3363
 14

‘The Court presumes the genuineness of every book purported to be printed or published under the
authority of the Government of any country, and which contains any of the laws of that country.The
same presumption is raised in reference to books published by the State which contain reportsof
decided cases. Section 84 provides for this presumption.’23

Presumption arises:

1) collection of laws and reports and decisions are genuine.

How to rebut: This presumption can be rebutted if the copies or laws are found to be not officially
printed and published.

Section 85: Presumption as to powers-of-attorney

Powers of attorney, for example, a document by which an agent is given the power to act for his
principal, which are duly executed before and authenticated by a notary public or any judge, court
or magistrate, Indian Consul or Vice—Consul or representative of the Central Government, are
presumed to be genuine and genuinely executed or authenticated.

Presumption arises:
1) Power of attorney duly executed and authenticated.
How to rebut: If the execution or authentication is not as prescribed by law this presumption can
be rebutted.

Section 89: Presumption as to due execution, etc., of documents not produced

‘When the document has been called for and is not produced after notice by a party who is in
possession of the document, the court shall presume that the document in question was’ duly
signed, stamped and attested. “The principle underlying the provisions of Section 89 is sometime
described as the “necessary principle”; that “no one shall be allowed to take advantage of his own
wrong.” But the presumption under this section may be drawn provided there is evidence that the
opposite party was in possession or power of the document in question. This is compulsory
presumption.’24

23
Dhiraj lal & Ratan Lal, “The Law of Evidence”, 21
st Edition, 2007, Wadhwa & Co., Nagpur, P.P.574
24
www.shareyouressays.com
 15

Presumption arises:
1) Documents not produced are duly attested, stamped and executed.
How to rebut: This presumption would be rebutted if the document is not called for by any court.

5. CONCLUSIVE PRESUMPTION

Conclusive presumptions are presumption that are specifically declared conclusive by statute.
Conclusive presumptions are said to be irrebuttable presumption, though they are actually not as
all presumptions are rebuttable. They are not controverted normally. Very strong and clear proof
is required to rebut the presumption.

Section 4 of The Evidence Act, 1872 defines “conclusive proof” as 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.

The definition in this section is in contradiction with section 112 of the same Act regarding the
rebuttable/irrebuttable nature of conclusive presumption which we'll see later.

5.1. The Provisions of Conclusive Presumption Under the Evidence Act, 1872

5.1.1. Section 41 of the Act of 1872

Section 41 is lengthy and deals with relevancy of certain judgments in probate, matrimonial,
admiralty or insolvency jurisdictions which confer upon a person any legal character or which
declares any person to be entitled to any such character, or to be entitled to any specific thing not
as against any specified person only, but also against the whole world absolutely when the
 16

existence of any such legal character, or the title of any such person to any such thing, is in issue.
Such judgment, order or decree, the section says, is "conclusive proof". 25
For being conclusive proof,
1. The judgement, decree or order must be given in exercise of probate, matrimonial,
admiralty or insolvency jurisdiction or matters,
2. The court must be of competent in dealing with the matter,
3. The judgement, decree or order must be in final form, not in Appellate stage as appeal
refers also as a continuation of any suit or proceedings.

If these conditions are properly fulfilled in any judgement, decree or order then that would be
conclusive as to the legal character or any person's entitlement to any property or thing which the
judgement, decree or order –
1. Either conferred absolutely upon any person; or
2. Declared absolutely in favour of him; or
3. Taken away from him absolutely; or
4. Declared, with regard to a thing, a person's entitlement to it.

These judgements become relevant as well as conclusive proof when it is in question. And the
legal character or entitlement to a property or things that the judgement, decree or order provides
become operative from the time when it declares it to have occurred on the person or if not declared
then from the date of its coming into operation. The section has not mentioned any such scope for
rebutting it as we have seen in section 112 of this act. But as all presumptions are rebuttable. It
can be rebutted if it can be shown that:
1. That the court has no jurisdiction, or
2. That the judgment was obtained by fraud or collusion, or
3. That it was not given on the merits, or
4. That it was not final, e.g., interlocutory.

25
Section 41 | Review of the Indian Evidence Act, 1872 | Law Commission of India Reports, Report No. 185
 17

5.1.2. The Provisions of S. 112 As to Presumption of Legitimacy

Section 112 lays down, the fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after its dissolution, the
mother remaining 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 access to each other at any time when
he could have been begotten.

The essential conditions of the section:

For the conclusive proof of legitimacy under section 112, the following conditions must be
satisfied:

1. There must be a valid marriage between his mother and any man. If the marriage is not
valid, i.e., void or irregular, such presumption won't be drawn. But that doesn’t mean
the child is illegitimate. Then the person who claims the child to be legitimate must
prove it.
2. He must be born during the continuance of such marriage, or
3. Born within 280 days after its dissolution, the mother remaining unmarried.

Thus, under section 112 of the Evidence Act 1872, the fact that any person was born (a) during the
continuance of valid marriage between his father or any man, or (b) within 280 days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate
son of that man unless the parties had no access to each other at any time when he could have been
begotten.26

26
Ratanlal and Dhirajlal, The Law of Evidence (19thedn, Eastern Book Company 2015) 330
 18

6. CONCLUSIVE PROOF OF LEGITIMACY:

This section is not to give legitimacy to any person, but it is a section of presumption. When the
above conditions are fulfilled, the court shall conclusively presume that the child is legitimate,
though in reality he may not be legitimate. This section places a presumption of legitimacy in
favour of the child. This presumption is for the benefit of the child, i.e., the purpose of the section
is the best interest of the child.

It is well settled principle of law that odiosa et inhonesta non sunt in lege praesumenda (nothing
odious or dishonourable will be presumed by the law). The law presumes against vice and
immorality. In a civilized society it is imperative to presume the legitimacy of a child born during
continuation of a valid marriage and whose parents “have access” to each other.27The presumption
of legitimacy is a presumption founded upon public policy which requires that every child born
during wedlock shall be deemed to be legitimate unless the contrary is proved.28

Thus, the presumption under this section is conclusive, but rebuttable. Very strong and clear proof
of non-access is required to rebut such presumption. The burden of proof under this section is on
the party who claims the child to be illegitimate.

Therefore, the presence of a valid marriage and birth during the continuance of that marriage is the
conclusive proof of the fact that the person is the legitimate child of his father. If it is proved that
there was marriage between the parties and the child was born during the continuance of that
marriage, it becomes a conclusive proof of the fact that the child was legitimate child of his father
and no evidence, be it blood test or otherwise can be allowed except in manner prescribed in section
112.29

27
Mahendra Agatrao Lomte and Dr. SR Katari, ‘A Critical analysis of legal presumption of legitimacy of child
under section 112 of Indian Evidence Act, 1872’ International Journal of Law Volume 3; Issue 2; March 2017; 50
28
Sham Lal v Sanjeev Kumar, (2009) 12 SCC 454
29
Goutam Kundu vs State of West Bengal and Anr 1993 AIR 2295
 19

Presumption of legitimacy can be rebutted by proof of non-access:

The term “conclusive proof” as used in section 112 is rebuttable if it can be shown that- the man
and the woman had no access to each other at any time when the child could have been begotten.

Though section 4 of the Act of 1872 says that no evidence shall be allowed to rebut the conclusive
proof, this is a misconception. All presumptions are rebuttable.

6.1. NON-ACCESS:

Conclusive presumption can be rebutted only if non-access is proved. Access and non-access here do
not mean actual co-habitation but existence and non-existence of opportunities for sexual intercourse. This
 20

presumption can only be displaced by strong, clear, satisfying and conclusive evidence. The presumption
cannot be displaced by mere balance of probabilities or any circumstances creating doubt.30

For instance, when a child is born after one day of marriage, the child will be calculated to have
been begotten 279 days before the marriage and if it can be shown that the man had no access to
the woman 279 days prior to the marriage and the child shall not be declared legitimate.31

However, in this example, one thing to be noted that though section 112 does not look to the time
of conception, but to the time of birth, when the child was born after one day of marriage, that
means the marriage was solemnized by hiding the pregnancy and during pregnancy marriage is
not valid, whereas the presumption under this section would arise only during the continuance of
a valid marriage. In such a situation, the acknowledgement by the husband would be necessary. If
the husband asserted that though the woman was pregnant, this child is his child, then it would be
presumed that there was a valid marriage. One is not permitted to inflict the allegation of adultery
or fornication so easily.

There are some common situations where non-access can be proved easily.32 Those are

(1) A child, though born during wedlock shall not be presumed legitimate When it can be shown
that the husband of the woman was himself a minor and of such immature age that it was medically
impossible for him to procreate a child at the time when the child was conceived.

(2) If it can be shown that the man was infirm and impotent when the child was begotten, the child
shall not be presumed legitimate.

(3) If it can be shown that the man was entirely absent from his wife (e.g., he was continuously
present in far of land or he was serving his terms of sentence in jail) during the time when the child
could have been begotten, the presumption will not be drawn.

30
Ibid
31
Venessa Fernandes vs Fransijco Farnandes, AIR 1986 Bom 89
32
Nazrul Islam, Reflections on the Law of Evidence (3rd Edn, Kamrul Book House, 2021) 388
 21

If a person wants to prove that he is not the father of his child, he must establish that he had no
access to the wife. And if it proved that he had access to his wife, it is not a ground that his wife is
of bad character and had access to other people to rebut the presumption of legitimacy.33

7. PRESUMPTION OF LEGITIMACY UNDER S. 112 AND MUSLIM LAW

Apparently, there are some differences between the provisions of classical Muslim Law and those
of Evidence Act, 1872 regarding the legitimacy of child, but there is no major conflict between
them.

According to Muslim Law34,

● A child born within six months of the marriage is illegitimate unless the father acknowledges it.

● A child born after six month of the marriage is legitimate unless the father disclaims it by
accusing his wife for adultery.

● A child born after dissolution of marriage is legitimate if born:

5. Within 2 years of the dissolution (Hanafi Law)

6. Within 10 months of the dissolution (Shia Law)
7. Within 4 years of the dissolution (Shafi Law)
8. Within 7 years of the dissolution (Maliki Law)

But the rules concerning this issue are not uniform under different schools of Muslim Law. It
ranges from nine lunar months up to seven years.35 On the other hand, In section 112 of the
Evidence Act, 1872 it was stated that the fact shall be a convulsive proof of legitimacy –

33
Jasimuddin (Md) alias Jasimuddin v. Dali Begum, 2003, 32 CLC (HCD)
34
Woodroffe and Amir Ali, Law of Evidence (14th Edition, Law Book Company 1980) 577
35
Tahir Mahmood, ‘Presumption of Legitimacy under the Evidence Act: A Century of Action and Reaction’ (1972)
 22

(1) If any person is born during the continuance of a valid marriage between the mother and
any man, or
(2) If any person is born within 280 days after the dissolution of marriage the mother remaining
unmarried.

Such a conclusive proof can be rebutted only with the evidence of non-access. If the alleged father
can prove that he had no effective access, i.e., opportunity to have intercourse with her, then such
conclusive presumption will be rebutted.

7.1. Different but not conflicting:

Both the above provisions are apparently different but inherently same to a large extent.

The differences are-

(i) The Evidence Act has not incorporated the rule of the expiry of six months, i.e., The Act takes
consideration of the time of birth, not that of conception, unlike English Law. Apparently, it may
give us an insight that any person born before six months is legitimate according to the Evidence
Act.

However, it is not the case. Firstly, section 112 is not a section of legitimacy, but it is a section of
presumption. The court shall conclusively presume the legitimacy only if certain conditions
mentioned in the section are fulfilled. The foremost condition of this section is that the chlid must
be born during the continuance of a valid marriage. Section 112 could not be applicable to a
marriage which is irregular under Muslim law.36

Secondly, since the section inflicted the term "during the continuance of a valid marriage", now if
a child is born before six months, it means that the mother was pregnant during the solemnization
of marriage and marrying a pregnant woman is void. Therefore, according to Evidence Act as well

Special Issue Journal of the Indian Law Institute 78, 84

36
Mst. Kaniz v Hasan (1962) PLD 1962 Lah 531
 23

such a child will not be presumed to be legitimate unless the marriage is valid. Where there is no
valid marriage, there is no occasion for raising the presumption under this section.37

One thing to be noted that here the section will not presume the legitimacy, that doesn’t mean the
child is illegitimate. If, for example, the husband acknowledges that it is his child, then it would
be presumed that there was a valid marriage between the man and the mother and the section will
be applicable. And Muslim Law clearly provides such provision of acknowledgment to give
legitimacy to a child born within 6 months of the marriage.

One may argue that there is no such provision of acknowledgment in section 112. But it may be
noted that when the alleged father doesn’t take recourse to prove the non-access, the only evidence
to rebut such presumption, it indicates that he acknowledges that it is his child and the law will
presume that there was a valid marriage between him and the mother. Thus, in a sense,
acknowledgement is there is section 112 because, the proof of non-access can only be claimed by
the father in question.

Thus, if it is not a valid marriage, there will no application of section 112 and this is also the true
essence of the rule of Muslim law where it provides that a child is illegitimate if born within 6
months, unless the father acknowledges it. Hence, there is no conflict in this regard between the
two.

(ii) After the dissolution of a valid marriage, a child to be presumed as legitimate requires to be
born within 280 days after the dissolution, the mother remaining unmarried, whereas this period is
two years by Hanafi Law, four years by Shafi and Maliki Law under Muslim Law.

This is actually the real conflict between sharia and statue.

The difference of opinion over the period of gestation among different scholars is due to the fact
that science was not that developed in that time, but the Act fixed 280 days which seems relevant
keeping consistency with the modern science.

Finally, it can be submitted that there are some differences between Sharia Law and Statutory Law
regarding legitimacy of children. However, there are no such real conflicts detected except the

37
Venkateshwarlu v Venkatvarayma (1954) AIR 1954 SC 176
 24

contradiction between 280 days set by the statute and two years/four years set by Hanafi and Shafi
law.

Application Of Section 112 To Muslim

The first decision after the enactment of section 112 regarding the applicability of Muslim Law
was reported nearly eight years after its enforcement.38 In Muhammad Allahdad v Muhammad
Ismail,39 Justice Syed Mahmood of the High Court of Allahabad raised the question whether
provisions of section 112 had the effect of superseding the contrary provisions of Muslim personal
law. But he left the question unattained. Later, in Sibt Muhammad v Muhammad40, the same
Court held that the section applied to Muslims in supersession of the contrary provisions of
Mohammedan Law. Similar view was taken by Lahore High Court in Mt. Rahim Bibi v Chirag
Din41 and Ghulam Mohy-ud-Din v Khaiza.42

Syed Ameer Ali, M.U.S. Jung and Baillie have opined that the two-year or four-year of gestation
was laid down by Muslim jurists only to meet extra ordinary circumstances and was not meant to
be general law.43 Again Ameer Ali, concerned with the first part of section 112 only, opined that
section 112 could not be held to supersede by implication the contrary rules of Muslim Law.
Among comparatively recent scholars, Asaf A.A. Fayzee has rightly pointed that the reason behind
such divergence regarding the maximum period of gestation found in Muslim law is “the imperfect
knowledge of gestation and pregnancy prevalent in early times”.44 Thus, he also seems to have
favoured indirectly, the application of at least second part of section 112 to Muslims.45 Whereas,

38
Muhammad Allahdad v Muhammad Islmail (1880) 10 AII 289
39
Ibid
40
Sibt Muhammad v Muhammad (1926) 48 AII 625
41
Mt. Rahim Bibi v Chirag Din (1930) AIR 1930 Lahore 97
42
Mohy-ud-Din v Khaizar(1929) AIR Lahore 470
43
A.A.A. Fyzee, Outlines of Muhammadan Law, (3rd edn, OUP 1968) 182
44
Ibid
45
Tahir Mahmood (Above n 10) 85
 25

PK Saxena opined that the Muslim law of legitimacy should prevail, as it is the substantive portion
of the law, and section 112 ought not to be applied in such cases.

The question about the applicability of section 112 after the repeal of section 2; according to
section 2 as it originally stood as follows “on and from that day the following laws shall be
repealed: all rules of evidence not contained any statute, act or regulation in force in any part of
British India.”46 The first clause of the section repealed all the rules of evidence, which were not
contained in any statute, Act or Regulation. Hence, all the rules of evidence, which had their origin
in the Islamic Law with some modifications, were followed by the courts in India before coming
into force of the Evidence Act, 1872, ceased to have any force of law and as such the view of
Indian High Court had been that the Muslim law of evidence was not applicable.

In the case of Abdul Ghani vs Telah Bibi,47 division bench of High Court of West Pakistan held
that the rules of Mohammedan law of evidence repealed by section 2 were revived by the Act
itself. The learned judges were thus of the view after the repeal of section 2 that the rule of Muslim
Law as to as to the legitimacy of a child was revived.

Considering the above propositions, we can conclude that the applicability of the rules of Evidence
of Muslim personal law regarding the legitimacy of a child is a question of fact. It depends upon
the discretionary power of the court. The court is to decide which rules should prevail.

8. THE EVIDENCE (AMENDMENT) ACT 20222: WHAT’S NEW IN THE

FIELD OF PRESUMPTION?

The Evidence (Amendment) Act, 2022 has been enacted to broaden the scope of evidence that is
admissible and substantial numbers of provisions have been added to regulate the admission and
appraisement of digital evidence. During the COVID-19 pandemic, we have noticed a shift in our
communication systems and many records and documents have been digitized. Now contracts are
being made in digital platforms, different documents are being submitted and used through
internet, as we have seen in the Rifat Murder case, even plans of murder are being made in online
chat rooms.

46
Mustafa, Jahid, An Introduction to Evidence Act (2nd edn, University Publication, 2019) 285
47
PLD, 1062, Lahore
 26

➢ In 2022, an amendment was brought in the Evidence Act 1872 (Act No.1 of 1872). In the
chapter of presumption, new provisions are added to ensure the presumptive value of digital
documents.
➢ Tracing back the background of digital evidence, we find that, in 1984, the FBI and other law
enforcing agencies of USA started developing programs to examine computer evidences. At
first, it was limited to computer-based forensic science but later digital documents were also
included.
➢ In our country, the Legislative took an effort to introduce the presumptive value of digital
documents through amending the Evidence Act 1872.
➢ Following sections were added in the Chapter V [Presumption as to Documents] –
• 81A
• 85A
• 85B
• 85C
• 88A
• 89A
• 90A

➢ Though the opposition leaders have criticized the provisions of some sections alleging that
these might be used against the oppositions, the amendment has made the path of justice
smoother than before.

Sec Type Applied to Requirements Presumption

81A Shall Official Gazettes in digital • The record must be • The document
forms kept substantially in is genuine
the form required
by law
• It must be produced
from proper
custody
85A Shall Agreements in digital forms • The agreement • Duly concluded
record must contain agreement
digital signatures of
the parties
85B Shall Digital record and digital • This presumption • The record has
signatures applies only to any not been altered
proceedings since its secure
involving a secure status relates
digital record • It is affixed by
subscriber with
the intention of
signing or
 27

approving the
digital record
85C Shall Digital Signature Certificates • If the certificate • The correctness
was accepted by the of information
subscriber, listed in such
information certificate
specified as
subscriber
information must
be verified.
88A May Digital communication • It must be • The message
forwarded through received was
a digital accurately sent
communication or [no presumption
message server as to the sender]
89A May Physical or forensic evidence • It must be a • It belongs to or
physical or forensic is created by the
evidence person from
whom it is
collected
90A May Digital records of five years • The record must be • The digital
old at least 5 years old signature of any
• It must be produced person is
from proper affixed by him
custody or any person
authorized by
him in this
behalf

9. A COMPARATIVE ANALYSIS OF PRESUMPTIONS IN DIFFERENT

JURISDICTIONS

9.1. Presumptions under Federal Rules of Evidence in the US

9.1.1. Federal Rules of Evidence:

The Federal Rules of Evidence codify the evidence law that applies in United States Federal
Courts. Many States in the United States have adopted the Federal Rules of Evidence with or
without local variations. Some of them have revised their own rules or codes to at least partially
follow the Federal Rules.
 28

9.1.2. Presumptions regarding Judicial notice:

According to Rule 201(g) of Federal Rules of Evidence, when judicial notice of a fact is taken, the
Court shall instruct the jury to accept that fact as established. This subsection allows mandatory
instruction in civil actions and proceedings and a discretionary instruction in criminal cases.

9.1.3. Presumptions in Civil Cases:

Rule 301 of Federal Rules of Evidence deals with the presumptions which is limited to civil
proceedings only.
Rule 301:
In a civil case, unless a federal statute or these rules provide otherwise, the party against
whom a presumption is directed has the burden of producing evidence to rebut the
presumption. But this rule does not shift the burden of persuasion, which remains on the
party who had it generally.

Presumptions governed by this rule are given the effect of placing upon the opposite party the
burden of establishing the nonexistence of the presumed fact, once the party invoking the
presumption establishes the basic facts giving rise to it. The same considerations of fairness, policy
and probability which dictate the allocation of the various elements of a case as between the prima
facie case of a plaintiff and affirmative defenses also underlie the creation of presumptions.

In Mobile, J. & K.C.R. Co. Vs Turnipseed (1910)48 the Court upheld a Mississippi statute which
provided that in actions against railroads proof of injury inflicted by the running of trains should
be prima facie evidence of negligence by the railroad. The injury in the case had resulted from a
derailment. The opinion made the points that –

(1) The only effect of the statute was to impose on the railroad the duty of producing some
evidence to the contrary,
(2) An inference may be supplied by law if there is a rational connection between the fact
proved and the fact presumed, as long as the opposite party is not precluded from presenting
his evidence to the contrary,

48
219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78(1910)
 29

(3) Considerations of public policy arising from the character of the business justified the
application in question.

Nineteen years later, in Western & Atlantic R. Co. Vs Henderson (1929)49, the Court overturned
a Georgia statute making railroads liable for damage done by trains, unless the railroad made it
appear that reasonable care had been used, the presumption being against the railroad. The jury
were instructed that proof of the injury raised a presumption of negligence, the burden shifted to
the railroad to prove ordinary care. If they failed to do so, they should find for plaintiff. But the
instruction was held erroneous. The presumption was different from the presumption of
Turnipseed case.

9.1.4. Applying State law to presumptions in Civil cases:

According to Rule 302 of Federal Rules of Evidence, in a civil case, state law governs the effect
of a presumption regarding a claim or defense for which state law supplies the rule of
decision.

A series of Supreme Court decisions in diversity cases are involved with the question of burden of
proof. The decisions are Erie Railroad Co. Vs Tompkins50, Cities Service Oil Co. Vs Dunlap51,
Palmer Vs Hoffman52, Dick Vs New York Life Insurance Co.53 They involved burden of proof,
respectively as to status as bona fide purchasers, contributory negligence, and non- accidental
death of an insured. In each case, the state rule was held to be applicable. In each case cited, the
burden of proof question had to do with a substantive element of the defense or claim.

9.2. Presumptions under English Law

In England, with the passage of time, the Parliament has drafted and adopted some Evidence Acts.
As per their necessity, they also amended those Acts. For instance, The Evidence by Commission
Act 1831, The Evidence Act 1843, The Evidence Act 1845, The Evidence Act 1851, The Evidence
Amendment Act 1853, The Documentary Evidence Act 1868, The Evidence Act 1877, The
Evidence (Proceedings in other Jurisdictions) Act 1975, The Police and Criminal Evidence Act
1984. There are several Acts which are applicable in Scotland, Ireland, Wales and other parts of
United Kingdom.

49
279 U.S. 639, 49 S. Ct. 445, 73 L. Ed. 884(1929)
50
304 U.S.64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)
51
308 U.S. 208, 60 S. Ct. 201, 84 L. Ed. 196 (1939)
52
318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943)
53
359 U.S. 437, 79 S. Ct. 921, 3 L. Ed. 2d 935 (1959)
 30

The English Law of Evidence is the main source of our Evidence law. Actually, the scope of law
of evidence is vast. These vast rules and principles of English law have been codified in a narrow
compass in the Evidence Act, 1872.

The presumptions under English law are mostly similar to us. The principles of presumption of
innocence, presumption as to documents, may presumption, shall presumption, conclusive proof
under our law is actually inspired from the English law.

10. RECOMMENDATIONS:
Presumption comes into play in a proceeding by shifting the burden of proof from one party to
another. It also bounds the court to make certain inferences and leaves the court with discretion
to make inferences or not in certain circumstances. If the provisions of presumption are not up to
mark, ends of Justice can't meet its fruition. In order to make sure justice is duly served, following
recommendation is made:
10.1. Alteration of section 80:

Section 80 basically denotes that when any statement or confession recorded by a magistrate is
produced before a court, the court is bound to make the presumption that such statement or
confession was duly taken.

In order to render relevancy to the discourse and make it palatable, we have to take resort to section
164 of the CrPC and other regulation of Cr.R.O.

To define confession, Justice Stephen stated, "Confession is an admission made at any time
by a person charged with a crime stating or suggesting the inference that he committed the
crime." 54

In plain language, it can be stated as an admission of guilt by an accused person, in a criminal

proceeding.

Confession holds certain degree of value in criminal proceedings. It was observed in State vs
Navjot Sandhu that confessions are considered highly reliable because no rational person would
make an admission against himself unless prompted by his conscience to tell the truth.55

Section 164 of the CrPC read with concerned regulations of Cr.R.O. lay down the procedure to be
followed to record a confessional statement in onder to make it admissible.

54
Stephen's Digest of Law Evidence, 3rd Edition
55
State vs Navjat Sandhu @ Afsan Guru (2005)
 31

For example:

(1) Accused has to be given sufficient time to think and contemplate.

(2) Explaining to the accused that he is not bound to do so and if he does so, it may be used as
evidence against him.

(3) Magistrate has to be satisfied that accused is giving his confession voluntarily and not being
affected by threat, fear on inducement.

If these proceedings are not duly followed, confession becomes inadmissible.

Now, if we stop treading upon academic discourse and cast our attention to real picture, we find
out to our shock, the horrid practice that has been going on in compelling the accused to give
confessional statement.

We can recall the famous Joj Mia Case. Joj Mia was falsely implicated in the 21 August grenade
blast case. He was compelled by inducement and torture to give his confessional statement.

Such similar incidents have been taken place in recent past. In three different incidents occurring
in Narayanganj, Chattogram and Barisal accused persons gave their confessional statement that
they killed the victim. Surprisingly, these so-called victims turned out to be alive. No doubt that,
these events expose a mockery to the administration of justice.

According to a report published by Ain-O-Salish Kendra, almost 1500 incidents of custodial deaths
took place between 2016-2021 and it is not hard to imagine most of them accrued while forcing
the accused to give confessional statement.

A Senior Lawyer of the Supreme Court SM Shahjahan stated that, "Confessional statement can't
be recorded by threatening or inducing the accused. However, it has become a common trend
to arrest an accused and taking him to remand and record confession forcefully. It puts the
administration of Justice in question." 56

We can imagine how cruelly they are tortured to compel them to give confessional statements. It
is beyond computation how many innocent people have been convicted on the basis of sham
confessional statement. It thwarts the administration of Justice which eventually stigmatizes the
solemnity of justice and judicial system.

So, it is the burning demand of the time that the court should be left with discretion whether to
accept a confessional statement or not and not be bound to presume so accordingly.

56
https://www.jagonews24.com/m/special-reports/news/615066
 32

In order to do this, the wording of section 80 of the Evidence Act, 1872 should be converted to
"may" from "shall". So that, if there appears any shed of doubt, court may reject any such
confessional statement. Besides, we have to consider the paramount difficulties, an accused faces
to rebut the presumptions and the reasons are pretty obvious.

11. CONCLUDING REMARKS

In the law of evidence, a presumption of a particular fact can be made without the aid of proof in
some situations. The invocation of a presumption shifts the burden of proof from one party
to the opposing party in a court trial. It is not possible to prove each and every fact in a Court
of law and that’s why the rules of presumption have been formulated; for ensuring the convenience
in administration of justice. This is not anything novel to our jurisdiction, rather have been passed
down from our preceding rulers.
However, as we have discussed above, some of the presumptions have become obsolete in the
sense that they are hardly used today, such as telegraphic communication. But the legislative has
taken a timely step to add a like presumption in cases of digital communication.
Some of the presumptions were made with a view to give the government an upper hand while
conducting their routine duties and following the usual procedure. But however, as we all now
know the rampant disregard for procedure and negligence and corruption in official function, some
of these presumptions have become a tool of persecution, as we already discussed above, regarding
Section 80.
The newly passed amendment has substantial similarity with the Indian amendments that were
made. Those amendments gave rise to many difficulties and further amendment was necessitated.
It created confusion regarding electronic records and digital evidence. Similar anomaly is seen in
our amendment. 57

Saying all that, it cannot be denied that presumptions are helpful tools in the hands of the Courts
to better adjudicate complex case. In Tukaram v State of Maharashtra58, the case was decided
on considering the facts of Mathura Rape Case and while adjudicating the case the Court justified
the need and necessities of such presumptions.

57
https://www.dhakalawreview.org/blog/2022/12/evidence-amendment-act-2022-an-experts-view-
6169#:~:text=The%20Evidence%20(Amendment)%20Act%2C%202022%20is%20based%20on%20the,to%20inser
t%20a%20DVD%20anymore.
58
1979 2 SCC 143
 33

The Court also explained that presumptions has a wider scope as they don’t only help the
victim in the fast trial but it also helps in giving direction to the case. Therefore, such
presumption can effectively help the judiciary in providing quick and complete justice to the
society.

12. BIBLIOGRAPHY

Books and journals:

• M.A Karim, Law of Evidence, 2nd Edition

• J. Franklin, The Science of Conjecture: Evidence and Probability Before Pascal (Baltimore:
Johns Hopkins University Press, 2001)
• Lawson: Presumptive Evidence, Rule 117, sub rule-2
• M. Monir: Law of Evidence, p- 542
• Dr. Singh Avtar: The Principles of law of Evidence ,19th Edition
• Nazrul Islam: Reflection of Law of Evidence ,3rd Edition P.338,388
• Sir Woodroffe Jhon and Amir Ali Syed; commentary of law of evidence,18th Edition,
Volume-2
• Phiraj Lal and Ratan Lal: The law of Evidence ,21st edition, P.574
• Justice M. Monir, Law of Evidence, 10th ed. 1st January, 2016, Universal Law Publishing
• www.shareyouressays.com
• Section-41; Review of the Indian Evidence Act,1872; law commission of Indian Reports ,
Report no-185
• Mohendra Agatroo Lomte and Dr. SR Katari, “A critical analysis of legal presumption of
legitimacy of child under section-112 of Indian Evidence Act”
• Tahir Mohammad, “Presumption of legitimacy under Evidence Act: A country of Action and
reaction (1972).
• AAA Fyzee, outlines of Mohammadan Law, 3rd Edition
• Mustafa Zahid, An introduction to Evidence Act,2nd Edition
• Stephen’s Digest of Law of Evidence ,3rd Edition
• www.jagonews.com/m/special_report/news/615066
 34

• Quazi Mahfujul Hoque Supan, Evidence (Amendment) Act, 2022: An Expert’s View, 20th
December, 2022, DHLR at https://www.dhakalawreview.org/blog/2022/12/evidence-
amendment-act-2022-an-experts-view-
6169#:~:text=The%20Evidence%20(Amendment)%20Act%2C%202022%20is%20based%2
0on%20the,to%20insert%20a%20DVD%20anymore.

Legislation:

• Law of Evidence Act-1872

Cases:

• AIR (1963) SC ,151

• Muthukumaswami Pillai vs King Emperor (1912) ,35 ,397

• 8 DLR 640
• 52 IA 42
• Surendra Krishna Ray vs BB Gugral (1981)
• Lal Bahadur Chowdhury vs State of Bihar (1973)
• 2 PLD 1961, 317
• Laxman Padma Bhagat vs State, 67 Bombay LR -317
• 8 DLR 269
• AIR 1991 All.317
• Sham Lal vs Sanjeev Kumar (2009)
• Goutam Kandu vs State of West Bengal (1993) AlR 2295
• Venesa Frandes vs Fransichco Farnandes ,AIR ,1986 Bom 89
• Jasimuddin (md) Alias Jasimuddin vs. Dali Beguory ,2003
• Mst Kaniz vs Hasan (1962) PLD Lah. 531
• Venkateshwarle vs Venkatvarayma (1954) AIR 1954
• Muhammad Alhabad vs Muhammad Ismail (1880)
• Mohammad vs Mohammad (1926) 48 All 625
• Mst. Raton Bibi vs Chirog Din (1930) AIR Lah 97
• Mohy-ud-Din vs Khaizar (1929) AIR Lah 470
• PLD 1062, Lahore
• State vs Navjot Sandhu @ Afsan (2005)
• 219 U.S, S. Ct, 136, 55L. Edition -78
• 279, US, S.Ct, 445 ,73L . Ed. 884 (1929)
• 304 U.S, 64,58 S.Ct 817, 82L. Ed. 1188 (1938)
• 308 U.S, 208 ,60 S.Ct. 201,84 L. Ed 196 (1939)
 35

• 318 U.S 109,63 S. Ct 477 87 L.Ed. 645 (1943)

• 359 U.S, 437,79 ; S.Ct 921, 3L ,Ed. 935 (1959)

View publication stats