What is basic concept of the expressions ‘Shall presume’, ‘May presume’ and ‘Conclusive proof’?

 According to S 4 of  the Indian Evidence Act, 1872, the expressions 'May presume','Shall presume', and 'Conclusive proof' have specific meanings and implications:

1. May Presume: When the Act provides that the court may presume a fact, the court has the discretion to either regard that fact as proved unless and until it is disproved or to call for proof of it. This means that the court has the option to presume the fact or to require evidence to establish it.

2. Shall Presume: When the Act directs the court to presume a fact, the court is obligated to regard that fact as proved unless and until it is disproved. In other words, the court must assume the truth of the fact unless there is evidence to the contrary.

3. Conclusive Proof: Conclusive proof refers to a situation where one fact is established, and as a result, other facts or conditions become conclusively proven. Once a fact is deemed to be conclusively proven, it cannot be challenged or disproved. This type of proof is considered absolute and final.

These expressions play a crucial role in determining the burden of proof and the weight given to certain facts in legal proceedings.

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Leading judgment of Supreme court on appreciation of DNA evidence

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

18. We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

19. The husband's plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the Appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. "Truth must triumph" is the hallmark of justice.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 24 of 2014 (Arising out of Special Leave Petition (Crl.) No. 8852 of 2008)

Decided On: 06.01.2014

 Nandlal Wasudeo Badwaik  Vs. Lata Nandlal Badwaik and Ors.

Hon'ble Judges/Coram:

C.K. Prasad and J.S. Khehar, JJ.

Citation: (2014) 2 SCC 576

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Whether party can be permitted to adduce evidence contradictory to leave and licence agreement?

Then there are judgments of this Court relied upon by the Counsel for the appellant; Ramesh Ramrao Hate v. Parvez B. Bhesania MANU/MH/0462/1996 : (1996)98BOMLR784 . Sails India v. Rita M. Rupani MANU/MH/0044/1997 : AIR1997Bom247 about conclusive nature of the leave and licence agreement as is defined in Section 13A2(3)(b) of the Bombay Rent Act. There cannot be any dispute that the legislative provision is absolutely clear that is the leave and licence agreement is conclusive proof of facts contained therein, meaning thereby that no party can be permitted to adduce evidence to contradict the said document.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 40 of 2000

Decided On: 12.09.2003

Alban Joseph Gonsalves

Vs.

 Rallis India Ltd.

Hon'ble Judges/Coram:

D.G. Deshpande, J.

Citation: 2004(1) ALLMR702

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