This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she has tried to explain briefly both the concepts- Burden of Proof and Presumptions in the Indian Evidence Act.


In any kind of legal proceeding, the question pertaining to proving of a fact (by both the parties) is answered with another question- on which party does the burden of proof actually lie? The court does not expect proof of self-evident facts and neither are all cases simple enough to demand so and therefore the Court holds a ‘presumption’ of continuity of certain implied facts until anything contrary is brought to the Court’s attention. Therefore, the burden of proof and presumptions go hand in hand and both need to be understood briefly. Chapter VII of Part III of the Indian Evidence Act deals with the provisions of the party does burden of proofs and presumption.

Presumptions generally refer to a process of giving a permit to a few facts on the basis of possibility (when such possibility has comparatively a greater substantiate value than general facts). Similarly, the concept of presumptions in law means inferences/ascertained facts which are concluded by the authority of Court in regards to the existence of certain facts already laid out in the matter. Generally, consequences of certain acts lead to the drawing of inferences, these can either be affirmative or negative. They are ruled out by using the mechanism of the most probable reasoning of such circumstances.

Section-114 of the Indian Evidence Act especially deals with the provisions 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

  • natural events,
  • human conduct, and
  • public and private business, in their relation to the facts of the particular case’.

Burden of Proof

Let’s briefly understand what the concept of burden of proof to understand presumptions better. Facts can be portrayed in the Court of Law subject to parties affirming it or denying it. Section-101 of Evidence Act if a party asserts and affirms to a particular fact, the burden of proof automatically lies on it and the other party is supposed to counter it. Since the Courts give judgement on the basis of truthful value of affirmative/ otherwise facts, it is crucial that the same are accurately proved. Also, now that is is more convenient and crucial for the party affirming a face to prove it than the party countering it, the burden of proof also lies on the former. Supreme Court in the famous case of State of Maharashtra v Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199) held that the expression ‘burden/ onus of proof’ has prominent two meanings, one is the legal burden and second is the evidential burden. In a criminal trial, the accused is considered to be innocent until proved guilty and the prosecution is responsible to prove his guilt. Similar sections that emphasize on the topic of the burden of proof- 103 till 113. Further, only a person who wants to believe a particular fact should prove the value of that fact and this was held in the landmark case- KM Nanavati v. State of Maharashtra (AIR 1962 SC 605), whereas naval officer was held guilty for supposedly murdering his wife’s lover. Although since the accused could not prove that he fired the shots accidentally or in self-defence.

Presumption of facts and Presumption of law

Presumption of Facts refers to the presumptions that are made on the basis of facts/ collection of facts relevant to the case. They are uncertain and rebuttable in nature. The Court may or may not choose to either presume such facts. For e.g. Presumptions of abetment as to suicide by a married woman.

Presumption of law refers to the presumption that is made by the Court (bound by law) when there remains an absence of proof in certain situations. They are certain, conclusive and mandatory for the Courts to follow too because the legislations guarantee it. For e.g. Presumption of Innocence.

Mixed Presumptions (Presumption of Fact and law both)

The other kind of presumption is – Mixed presumptions, these are presumptions of both law and Fact. Since such presumptions are mainly confined to the English law, it is not essential to deliberate on it here, it is of value in the English property-related law. In a very nominal position, even The Indian Evidence Act, 1872  has made some provisions for the mixed presumptions pertaining to both fact and the law. While in certain sections of the Evidence Act, it has been provided that the court may presume certain facts although, in other sections, The court shall presume a fact has been put to usage. Section-4 of the Evidence Act is of prime importance here as it controls the other sections and gives a direction for the Courts as to how to conduct the procedures relevant in the sections.

Classification of Presumptions under the Indian Evidence Act 1872

Various sections of the Indian Evidence Act of 1872 layout provisions with respect to provisions, briefly stating the same below-

It can be said Section-4 deals with three categories of presumptions namely- Discretionary Presumptions, Mandatory Presumptions and Conclusive Proof, Further the other Sections which specifically deal with ‘Discretionary Presumptions’ relating to documents are sections 86, 87, 88, 90 and 90-A. Presumptions under Section 86 refers to Presumption as to certified copies of foreign judicial records. The following sections- 87 to 90-A Refers to Presumption as to Books, Maps and Charts, as to Telegraphic Messages, as to documents thirty years old respectively. Now, Section 90-A is very similar to Section 90 of the same Act in structure and it explains the presumption that applies to electronic records which are 5 years old. In the other case of Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Apex Court held that it is the sole duty of the prosecution to establish, beyond any kind of reasonable doubt that the accused committed the offence.


Further, the Section-113A lays out the provision- Presumption as to abetment of suicide by a married women, Section-113B explains the Presumption as to dowry death. Irrebuttable presumptions are a broad avenue and the provisions explaining it should also be considered. Irrebuttable presumptions are those legal rules which are not a consequence/ outcome of any evidence or fact. Section-82 of the Indian Penal Code is a well-known example of irrebuttable presumption of law which provides that nothing is to be considered as an offence which is done by a child under 7 years of age. Section-115, 116 and 117 of the Indian Evidence Act 1872 also deals with the rule Estoppel which are the examples of irrebuttable presumptions. Section-115 talks about Estoppel. Section-116 talks about Estoppel of tenant and of the license of the person in possession. Section-117 explains the provision of Estoppel of the acceptor of a bill of exchange, bailee or licensee.

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