Section 114 of the Act lays down that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case.
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As seen above, presumptions are of two kinds: presumptions of law and presumptions of fact. Presumptions of fact are nothing more than logical inferences of the existence of one fact drawn from some other known or proved facts. Such presumptions are always rebuttable.
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The difference between presumptions of law and presumptions of fact can be tabulated as under:
Presumptions of Law:
1. Presumptions of law derive their force from law.
2. A presumption of law applies to a class of cases.
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3. Presumptions of law are to be drawn by the Court.
Presumptions of Fact:
1. Presumptions of fact derive their force from logic.
2. A presumption of fact applies to individual cases.
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3. In England, presumptions of fact are to be drawn by the jury.
This section authorises the Court to make certain presumptions of facts. They are all presumptions which may naturally arise, but the section, by the use of the word ‘may’ instead of ‘shall’, both in body of the section, and in the Illustrations, shows that the Court is not compelled to raise them, but is to consider whether, in the circumstances of the case, they should be raised.
Illustrations to Section 114:
The Court may presume—
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
This Illustration is taken from Taylor. The words “soon after the theft” indicate that in order to raise the presumption, the possession must be recent. Moreover, the possession must be conscious and exclusive.
The question as to what is recent possession will depend upon the facts and circumstances of every case, and upon whether the stolen article passes easily from hand to hand in the ordinary course of business. Thus, in one case, when a stolen woolen cloth with its ends in an unfinished state was found with a person two months after the theft, it was held that the burden was on such person to show how he came into possession of such property.
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular.
[Illustration: (b) must be read with S. 133 below, where the law as to accomplice evidence is discussed.]
(c) That a bill of exchange accepted or endorsed was accepted or endorsed for good consideration.
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence.
(e) That judicial and official acts have been regularly performed. This Illustration is founded on the maxim omnia praesumuntur rite essa acta (all things are presumed to be rightly done).
There is a general disposition in Courts of Justice to uphold official acts, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking essential to the validity of those acts.
It must, however, be noted that the presumption that the act was regularly done arises only on proof that the act was in fact done, as the presumption is limited to the regularity of the act done and does not extend to the doing of the act itself.
For example, if a notification is issued under the powers given by law, there is a presumption that it was regularly published and promulgated in the manner in which it was required to be done, but there is no presumption that it was issued according to that terms of the section which empowered it. Correctness of procedure, but not the factum of act, is presumed under the Illustration.
(f) That the common course of business has been followed in particular cases.
(g) That evidence which could be and is not produced, would, if produced, be unfavourable to the person who withholds it.
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer if given, would be unfavourable to him.
(i) That when a document creating an obligation is in the hand of the obligor, the obligation has been dischanged.
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it, viz,—
As to Illustration (a): A shop-keeper has in his till a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business.
As to Illustration (b): A, a person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and himself; or
A crime is committed by several persons, A, В and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable.
As to Illustration (c): A, the drawer of a bill of exchange, was a man of business. B, the acceptor was a young and ignorant person, completely under A‘s influence.
As to Illustration (d): It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course.
As to Illustration (e): A judicial act, the regularity of which is in question, was performed under exceptional circumstances.
As to Illustration (f): The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances.
As to Illustration (g): A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure, the feelings and reputation of his family.
The Supreme Court has observed, commenting on Illustration (g), that an adverse inference against a party for his failure to appear in Court can be drawn only in absence of any evidence on record. Where the admission of the parties and other materials on record amply prove the point in issue, no presumption can be raised against the person who has failed to appear in the Court. (Pandurang Jivaji Apte v. Ram- chandra Gangadhar Ashtekar, (1981) 4 S.C.C. 569)
As. to Illustration. (h): A man refuses to answer a question which he is not compiled by law to answer, but the answer, to it might cause loss to him in a matter in relation to which it is asked.
As to Illustration (i): A bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.