In Narsinga Rao v. State of A.P. , His Lordship, K.T. Thomas J.,T held that the expressions "may presume" and "shall presume" are defined under Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions
FACTUAL PRESUMPTION / PRESUMPTION OF FACTS/ MAY PRESUME : In the case of “May Presume”, the Court has two options:
1. The Court may regard the fact as proved and, in case it does, the Court shall permit the other party to disprove or rebut it; or
2. The Court may not presume the fact and ask the party to prove it.
Illustration : The Court may presume 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.
LEGAL PRESUMPTION/ PRESUMPTION OF LAW/ SHALL PRESUME : In case of a 'Presumption of Law' no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. Instances of such presumptions are to be found in sections 79, 80, 81, 83, 85, 89 and 105, Evidence Act.
Illustration : Under Section 82 of IPC, the law directs the Court to presume that “nothing is an offence which is done by a child below the age of seven years.” Court is not required to check the maturity of the child under 7 years, as this is a presumption of law.
REBUTTABLE : It should be noted the ‘proof’ that is required in rebuttal of the mandatory “shall presume” should be qualitatively stronger than the proof in rebuttal of the discretionary “May Presume” . The Supreme Court in Dhanvantrai Balwantrai Desai v. Maharashtra , clarified that the distinction between the “May Presume” and “Shall Presume : “the burden resting on the accused person in such a case(presumption of law) would not be as light as it is where a presumption is raised under S.114 of the Evidence Act(presumption of fact) and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable”
