§ SECTION 119 · BSA 2023 · CHAPTER VII — BURDEN OF PROOF

Court may presume existence of certain facts

The court’s general power to infer. The court may presume the existence of any fact it thinks likely to have happened — judged by the common course of natural events, human conduct and ordinary business. Nine classic illustrations show it in action; ten caveats show when common sense points the other way.

How to read Section 119

The court MAY presume any fact it thinks likely to have happened — measured against the common course of events, human conduct and business.

The power

The court may presume the existence of any fact it thinks likely to have happened.

The yardstick

Judged by the common course of natural events, human conduct and public and private business — in relation to the facts of the case.

Guides, not rules

Nine illustrations (a)–(i) show it in action; ten caveats in (2) show when the same facts point the other way.

The bare Act

The section in its own words — the general rule, nine illustrations, and the countervailing facts in sub-section (2).

Section 119 · verbatim

(1) 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.

Illustrations

The Court may presume that—

(a) 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;

(b) an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(d) 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 state of things usually cease to exist, is still in existence;

(e) judicial and official acts have been regularly performed;

(f) the common course of business has been followed in particular cases;

(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) 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) when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

(2) 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:—

(ii) 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;

(iii) as to Illustration (b)—a crime is committed by several persons. A, B 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;

(iv) 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;

(v) 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;

(vi) as to Illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

(vii) 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;

(ix) as to Illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

(x) 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.

In short: this is the court’s general, discretionary power to fill gaps by common sense. It may — not must — presume the existence of any fact it thinks likely to have happened, tested against the common course of natural events, human conduct and business. The nine illustrations are the classic ‘may presume’ situations: recent possession of stolen goods points to the thief or a knowing receiver; an accomplice is suspect unless corroborated; a bill was for consideration; a state of things continues; official acts were regularly done; business followed its usual course; withheld evidence would have hurt the withholder; a refusal to answer tells against him; a bond in the obligor’s hands is discharged. But sub-section (2) is the crucial counter-weight: these are maxims, not fixed rules — the court must weigh the actual facts (an innocent explanation, a disrupted post, a document that merely embarrasses) that can make the inference fail.

→ This carries forward IEA 1872 § 114 — the court’s general power to presume facts from the common course of events.

Glossary

may presume

A discretionary inference — the court may, not must, draw it (and may call for proof of the fact).

likely to have happened

What, on common experience, probably occurred.

common course of natural events

What usually happens in the natural and physical world.

human conduct

How people ordinarily behave.

public and private business

The usual course of official and commercial dealings.

maxims, not rules

The illustrations are guides to inference — the court weighs them against the actual facts (the sub-section (2) caveats).

The picture

From common experience the court may infer a likely fact — but each inference bends to the facts of the case.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The power (1)Nine presumptions & ten caveats

the powerThe court may draw any inference that common experience supports

In one lineThe court may presume the existence of any fact it thinks likely to have happened, judged by the common course of natural events, human conduct and business — applied to the facts of the particular case.

(1) The Court may presume the existence of any fact which it thinks likely to have happened,the court may infer any probable fact…the court may treat as proved any fact it thinks likely to have happened — a discretion, not a duty.

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.→ measured against ordinary experience, applied herethe inference must fit the common course of events, conduct and business, as it bears on this case.

ExampleA man is found with goods soon after a theft (illustration a). The court may presume he is the thief or a knowing receiver — unless he can account for his possession.

✗ Not this‘May’ is never ‘must’. The court is not bound to draw any of these inferences; each illustration is only a guide, and the (2) caveats show the same facts can point the other way.

illustrations & (2)Nine classic ‘may presume’ situations — each with a counter-check

In one lineIllustrations (a)–(i) list nine everyday inferences; sub-section (2) pairs each with a fact that can cancel it — proof that these are maxims, not fixed rules.

(a) 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;recent possession points to guilt…the classic recent-possession inference — but note the built-in escape: ‘unless he can account’.

(i) as to Illustration (a)—a shop-keeper has in his bill 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;— here the innocent explanation is obviousa shopkeeper takes in countless coins daily — possession of the marked rupee proves little, so the presumption should not be drawn.

(g) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;withholding evidence looks bad…a party who hides evidence he could produce invites the inference it would have hurt him.

(viii) 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;— but he has an innocent reason to hold backwhere the document is trivial to the case yet hurtful to his family, his silence carries little weight against him.

ExampleAn accomplice (illustration b) is presumed unreliable unless corroborated. But where several captured criminals, kept apart, give matching accounts implicating another (caveat iii), the corroboration is strong — the presumption of unreliability weakens.

✗ Not thisNone of the nine is a fixed rule. Sub-section (2) shows that in the right circumstances — an innocent explanation, a disrupted post, a merely embarrassing document — the presumption fails. The court always weighs the actual facts.

Connected provisions

§ 118 · back

IEA 1872, § 114

Carried forward — the court’s general power to presume facts from the common course of events.

BSA 2023 § 119 — Court may presume existence of certain facts