Section 114 Evidence Act vs Section 119 BSA — Court May Presume Existence of Certain Facts

In India, the court's general power to presume facts from the ordinary course of events has moved from Section 114 of the Indian Evidence Act, 1872 (IEA) to Section 119 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The power, its nine illustrations and ten qualifying facts are unchanged in substance; the section is now split into sub-sections (1) and (2).

At a glance

What changed

• Identical — the general power. "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" is word for word the same. It is now numbered sub-section (1).
• Minor edit — the lead-in to the illustrations. "The Court may presume ––" becomes "The Court may presume that—", and each illustration drops its opening "that". IEA: "(e) that judicial and official acts have been regularly performed". BSA: "(e) judicial and official acts have been regularly performed".
• Minor edit — illustration (d). IEA: "within a period shorter than that within which such things or states of things usually cease to exist". BSA: "…such things or state of things usually cease to exist". The opening words "a thing or state of things" are the same in both.
• Identical — the substance of illustrations (a)–(c) and (e)–(i). Illustration (a) keeps its comma in "soon, after the theft" in both texts.
• Minor edit — the qualifying facts become sub-section (2). "But the Court shall also have regard to such facts as the following" becomes "(2) The Court shall also have regard to such facts as the following". The ten examples are numbered (i)–(x), and "as to illustration (a)" becomes "as to Illustration (a)"; their wording is otherwise the same.
• Modified — the linked accomplice rule (IEA s.133 → BSA s.138). IEA: "a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". BSA: "a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice". Section 119(1) illustration (b) is unchanged, so the pairing of the two provisions now reads differently. No judgment construing the new wording was read for this page.
• Not carried over — a State amendment. The official IEA text prints a Chhattisgarh amendment inserting s.114B (Chhattisgarh Act 25 of 2015, s.14), a presumption for certain offences against women under the IPC. The BSA as enacted has no corresponding section between s.119 and s.120.

Statutory text (relevant extract)

Extract — Section 119(1), BSA (IEA s.114 opening words are the same):

(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.

Extract — illustrations (a), (b) and (g) to Section 119(1), BSA:

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

Extract — Section 119(2), BSA:

(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:—

How it works — the steps and the illustrations

1. Prove the basic facts. A presumption under s.119 is an inference from facts already proved, such as possession of goods identified as stolen, or a party's failure to produce a document it holds.
2. Ask whether the inferred fact is "likely to have happened". The yardstick is the common course of natural events, human conduct and public and private business, applied "in their relation to the facts of the particular case" (s.119(1)).
3. Choose whether to presume. "May presume" (s.2(1)(h)) lets the Court either regard the fact as proved unless and until it is disproved, or call for proof of it. The Court is not bound to draw the inference.
4. Test against sub-section (2). Before applying an illustration, the Court must also consider facts of the kind listed in s.119(2), which show when the "maxims" may not fit.
5. Allow rebuttal. A fact presumed under s.119 stands only "unless and until it is disproved"; the party against whom it operates may lead evidence to displace it.

The illustrations and their paired qualifying facts:

What this means in practice

• For the prosecution in property offences. Illustration (a) fits the ingredients of dishonestly receiving stolen property, BNS s.317(2) (imprisonment up to three years, or fine, or both; cognizable, non-bailable, triable by any Magistrate under the BNSS First Schedule). Record the date of theft, the date and place of recovery, the nature of the goods and what the accused said about them. Earabhadrappa shows that the interval is judged against how readily the goods pass from hand to hand.
• For the defence in the same cases. The presumption yields to an account of possession. Section 119(2)(i) is the statutory reminder that an innocent explanation rooted in the accused's trade or circumstances can make the maxim inapplicable.
• For anyone relying on an accomplice or approver. Look for independent corroboration in material particulars of both the offence and each accused's part (illustration (b); Haroon). Note the re-worded s.138 and argue its effect from the text, not from pre-2024 commentary on s.133.
• For investigating officers and prosecutors holding evidence. Illustration (g) cuts both ways. In Tomaso Bruno the prosecution's failure to produce CCTV footage it had access to led the Supreme Court to draw an adverse inference against it. Seize and produce the best evidence, including electronic records.
• For civil litigants. A party holding accounts or documents that bear on the dispute cannot rest on the other side's burden of proof; the Court may infer that the withheld material would have hurt the party holding it (Ketkar). Apply for production when the other side holds key documents.

Judgments that still matter

BSA s.119 repeats the operative words of IEA s.114 and its illustrations, so on a reading of the text judgments construing them remain relevant. None of the judgments below construes s.119 itself.

Earabhadrappa @ Krishnappa v. State of Karnataka, [1983] 2 S.C.R. 552 (1983 INSC 23), decided 11 March 1983. A.P. Sen J. delivered the judgment of a two-judge bench. The accused, a servant in the house, disappeared the morning the deceased was found strangled and robbed of her gold ornaments. Arrested over a year later, he made a statement leading to their recovery. The Court held that the nature of the illustration (a) presumption depends on the evidence. "No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts." It depends on whether the article is likely to pass readily from hand to hand (report p. 562; no paragraph numbers). Because murder and robbery were one transaction, the presumption extended to both. The conviction stood and the death sentence was commuted to imprisonment for life. Why it matters now: illustration (a) is repeated word for word in s.119(1).

Haroon Haji Abdulla v. State of Maharashtra, Supreme Court, 14 December 1967. Hidayatullah J. delivered the judgment of a two-judge bench in a gold-smuggling conspiracy. The Court read IEA s.133 with illustration (b) to s.114: an accomplice is a competent witness, but courts insist on corroboration in material respects of the offence and of each accused's part. "This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law." It held that the confession of a co-accused tried jointly could lend assurance under s.30, and dismissed the appeal. Why it matters now: illustration (b) is unchanged in s.119(1). Its relationship with the re-worded s.138 is a question the judgment did not face.

Gopal Krishnaji Ketkar v. Mahomed Haji Latif, [1968] 3 S.C.R. 862, decided 19 April 1968. V. Ramaswami J. delivered the judgment of a three-judge bench in a dispute over land claimed for a dargah trust. The appellant admitted keeping accounts of the dargah income but did not produce them. He argued that the onus was on the other side. The Court held that the Court may draw an adverse inference even against a party on whom the burden of proof does not lie, if he withholds important documents in his possession. In its words: "It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession" (report p. 866). Why it matters now: this is illustration (g), repeated in s.119(1).

Tomaso Bruno v. State of U.P., [2015] 1 S.C.R. 721 (2015 INSC 52), decided 20 January 2015. R. Banumathi J. delivered the judgment of a three-judge bench. Two foreign tourists were convicted of murdering a companion in a hotel room. The hotel's CCTV cameras had recorded the relevant period, but the footage was never produced. Non-production of CCTV footage and phone records amounted to "withholding of best evidence" (para 27). Under illustration (g) an adverse inference may be drawn against a party who withholds such evidence even where the onus is not on him. "The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference." (para 28). The Court drew the inference against the prosecution (para 29) and set the convictions aside (paras 42–43). Why it matters now: it applies illustration (g) to electronic evidence held by the State.

Which law applies to your case

BSA s.170(2) provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force (1 July 2024) is dealt with under the IEA "as if this Adhiniyam had not come into force". A case pending on that date applies IEA s.114 (and s.133). On a reading of s.170(2), a proceeding begun later applies BSA s.119 (and s.138). For s.119 the difference is only numbering and drafting. For accomplice evidence, the re-worded s.138 is the point to watch. For the full analysis see which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 114 of the Evidence Act? Section 119 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 114 of the Indian Evidence Act, 1872. Sub-section (1) repeats the general power and illustrations (a) to (i), and sub-section (2) repeats the ten qualifying facts the Court must also consider. The changes are drafting only, such as "states of things" becoming "state of things" in illustration (d).

Is the Court bound to draw a presumption under Section 119 BSA? No. Section 119(1) says the Court "may presume", and BSA Section 2(1)(h) defines that as a choice: the Court may regard the fact as proved unless and until it is disproved, or may call for proof of it. In Tomaso Bruno v. State of U.P. (2015 INSC 52, para 28) the Supreme Court described the illustration (g) inference as permissible, not necessary.

What does illustration (a) to Section 119 say about stolen goods? Illustration (a) allows the Court to presume that a man in possession of stolen goods soon after the theft is either the thief or received them knowing they were stolen, unless he can account for his possession. Section 119(2)(i) adds a counter-example of a shopkeeper who is continually receiving rupees in his business. In Earabhadrappa v. State of Karnataka (1983 INSC 23) the Supreme Court held that no fixed time limit decides whether possession is recent.

Is accomplice evidence enough to convict under the BSA? Section 119(1) illustration (b) still lets the Court presume that an accomplice is unworthy of credit unless corroborated in material particulars. BSA Section 138 now says a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice, where IEA Section 133 spoke of uncorroborated testimony. No Supreme Court judgment construing the new wording was read for this page, so its effect is not stated here.

When can the Court draw an adverse inference for withholding evidence? Illustration (g) to Section 119(1) BSA allows the Court to presume that evidence which could be and is not produced would, if produced, be unfavourable to the person withholding it. In Gopal Krishnaji Ketkar v. Mahomed Haji Latif (1968) the Supreme Court held that the inference can be drawn even against a party who does not bear the burden of proof. In Tomaso Bruno (2015 INSC 52, para 29) it drew the inference against the prosecution for not producing CCTV footage.

What is the difference between may presume and shall presume in the BSA? Under BSA Section 2(1)(h), where the Court may presume a fact it can treat the fact as proved unless disproved, or call for proof. Under Section 2(1)(l), where it shall presume a fact it must treat the fact as proved unless and until it is disproved. Section 119 is a "may presume" provision; Section 118 (dowry death) is a "shall presume" provision.

Which Act applies to presumptions in a case pending on 1 July 2024? Section 170(2) BSA provides that proceedings pending immediately before the Adhiniyam came into force are dealt with under the Indian Evidence Act as if the BSA had not come into force. Such cases therefore apply IEA Section 114. Because Section 119 repeats it in substance, the analysis is the same under either section.

Related

• Sections 101–105 Evidence Act vs Sections 104–108 BSA — burden of proof
• Sections 113A–113B Evidence Act vs Sections 117–118 BSA — presumptions in dowry cases
• Hostile witnesses and accomplice evidence — BSA vs Evidence Act
• Sections 378–382 IPC vs BNS — theft
• Section 27 Evidence Act vs BSA — discovery statements
• Offence before 1 July 2024 — which law applies
• Sections 410-414 IPC vs Section 317 BNS — Stolen Property
• Section 106 Evidence Act vs Section 109 BSA — Burden of Proving Fact Especially Within Knowledge
• Section 133 Evidence Act vs Section 138 BSA — Accomplice Evidence (with IEA 114 Illustration (b) and BSA 119)
• Section 112 IEA vs Section 116 BSA — Birth During Marriage, Conclusive Proof of Legitimacy

Sources

Acts and sections read (BSA, BNS and BNSS from the Gazette; Indian Evidence Act from the official text): BSA ss.2(1)(b), (h), (l), 119, 120, 138, 170; IEA ss.4, 114, 133 and the Chhattisgarh State Amendment inserting s.114B; BNS s.317; BNSS First Schedule entry 317(2).

Judgments read (full text, Veritect Supreme Court corpus): Earabhadrappa @ Krishnappa v. State of Karnataka (1983_2_552_563_EN.md); Haroon Haji Abdulla v. State of Maharashtra (1968_2_641_650_EN.md; party name from Diary_150-1965_Judgment.md); Gopal Krishnaji Ketkar v. Mahomed Haji Latif (1968_3_862_867_EN.md); Tomaso Bruno v. State of U.P. (2015_1_721_747_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.