Introduction
Section 120 covered a single, narrowly targeted presumption. Section 119, one number down, does the opposite: it is the general, catch-all presumption power that has quietly done more work in ordinary Indian trials — theft cases, negligence disputes, contract suits, and everything in between — than almost any other provision in the Act. It is also one of the few sections in the BSA that comes with its own built-in worked examples, nineteen of them, split between nine illustrations of what a court may presume and ten paired notes on when that presumption should not be drawn.
This article covers Section 119 in full: its general rule, all nine illustrations and their ten qualifying notes, and two Supreme Court decisions — one on the stolen-goods illustration, one on the adverse-inference-from-withheld-evidence illustration — that show how differently courts have applied this single section depending on which of its nine limbs is in play.
119. Court may presume existence of certain facts.
(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;
(c) a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(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:—
(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;
(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;
(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;
(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.
Section 119 BSA vs. Section 114 IEA: The Rare Section With Zero Drafting Change
Cross-checked word for word against Section 114 of the Indian Evidence Act, 1872 across two independent sources, Section 119 is a complete, unaltered carry-over — every illustration, every qualifying note, and even the archaic comma placement in illustration (a) ("soon, after the theft") survives the transition intact. This matters after the confirmed pattern search this project has run across Chapters VII through IX: single-word substantive changes (Sections 122, 131, 138) are real and recurring, so every section gets the same word-for-word scrutiny regardless of how settled its doctrine looks — and Section 119 is one of the clean negatives, exactly as Sections 121 and 123 were.
| Aspect | Section 114, Indian Evidence Act, 1872 | Section 119, BSA, 2023 |
|---|---|---|
| General rule | Court may presume facts likely per common course of natural events, human conduct, and business | Identical, unchanged |
| Illustrations (a)-(i) | Nine illustrations covering stolen goods, accomplices, bills of exchange, and more | Identical text, same nine illustrations |
| Qualifying notes (i)-(x) | Ten paired counter-examples showing when the presumption should not be drawn | Identical, unchanged |
| Nature of presumption | Discretionary ("may presume") | Same — discretionary, not mandatory |
Why the Qualifying Notes Matter As Much As the Illustrations
The structure of Section 119 is easy to misread as a list of nine rules a court can simply apply mechanically. It is not. Subsection (2)'s ten paired notes exist specifically to stop that — each one takes the illustration immediately before it and shows a variation of the same fact pattern where the presumption should not be drawn, because the "common course of natural events, human conduct and public and private business" cuts the other way on those particular facts. A shopkeeper who is continually handling rupees in the ordinary course of business is not in the same position as an ordinary person caught with a single marked stolen rupee; a document withheld because it might embarrass a family, on a contract of trivial value, is not the same as a document withheld because it would prove the withholding party's liability.
Illustration (a) in Practice: The Recent and Unexplained Possession Doctrine
Illustration (a) — presuming that a person found with recently stolen goods is either the thief or a knowing receiver — is the most heavily litigated limb of this section, because it routinely supplies circumstantial proof of theft, robbery, dacoity, and even murder committed in the course of theft, where no eyewitness exists. Courts have consistently qualified it with a "time factor": the shorter the gap between the theft and the discovery of possession, and the more complete the accused's silence or false explanation, the stronger the presumption; the presumption correspondingly weakens as more time elapses or as the goods pass through more hands. In Gulab Chand v. State of Madhya Pradesh, AIR 1995 SC 1598, the Supreme Court went further, holding that where robbery and murder form part of the same transaction, unexplained possession of the deceased's stolen ornaments soon after the crime can support a presumption not merely of the robbery but of the murder itself — treating illustration (a) as reaching beyond the immediate offence of theft into a closely connected graver offence, provided the "soon after" and "unexplained" conditions are independently satisfied.
Gopal Krishnaji Ketkar v. Mohamed Haji Latif: Adverse Inference From Withheld Evidence
Illustration (g) — that unproduced evidence would, if produced, be unfavourable to the party withholding it — was the basis for the Supreme Court's ruling in Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413. The dispute concerned whether certain land was a public burial ground (a wakf) or private property, and the appellant, who claimed private ownership, failed to produce account books admittedly in his possession that would have shown how income from the land had actually been dealt with. The Court held that even where the formal burden of proof does not technically rest on a party, a court may still draw an adverse inference against that party for withholding material evidence within their control — describing this as "supported by an impressive body of authority" and squarely consistent with illustration (g). The judgment remains the standard citation whenever a party's unexplained failure to produce a document, witness, or record that is peculiarly within their own control becomes an issue at trial, civil or criminal.
Worked Example: Reading an Illustration Against Its Counter-Example
A dispute concerns whether a company that sued for breach of contract validly posted a crucial notice to the defendant, since the defendant denies receipt. The plaintiff proves the notice was correctly stamped, addressed, and handed to the postal service on the relevant date. Under illustration (f), read together with the general common-course-of-business principle, a court may presume the letter was received in the ordinary course of post. But if the defendant then shows — as in qualifying note (vii) — that postal services in that area were disrupted by a strike or natural disaster around the relevant date, the presumption weakens or disappears, because the very "common course of business" the presumption relies on did not, in fact, hold on those specific facts. The illustration and its note are not two separate rules; they are one rule read with its own built-in limiting principle.
Why This Matters in Practice
For litigators, Section 119 is frequently the difference between a case that survives on circumstantial evidence and one that collapses for want of direct proof — recent possession of stolen property, an opponent's unexplained silence, or a withheld document can each do real evidentiary work without a single eyewitness. For drafters and advisors, the qualifying notes are a built-in checklist for anticipating and defusing the other side's presumption arguments before trial — showing that the specific facts fall into one of subsection (2)'s counter-examples is often a cheaper and more effective defence than contesting the underlying fact pattern itself. For judges, the section is a reminder that "may presume" is genuinely discretionary: nothing in Section 119 compels a particular outcome, and the ten qualifying notes exist precisely so that discretion is exercised with the specific facts in view, not by rote application of the nearest-sounding illustration.
Key Takeaways
- Section 119 BSA reproduces Section 114 IEA in full — the general rule, all nine illustrations, and all ten qualifying notes — with no drafting changes at all.
- The presumption is discretionary ("may presume"), unlike Section 120's mandatory "shall presume," and the nine illustrations are examples of the general power, not an exhaustive or mandatory list.
- Illustration (a)'s recent-and-unexplained-possession doctrine is qualified by a "time factor" and can extend, per Gulab Chand v. State of M.P., AIR 1995 SC 1598, to a graver offence closely connected to the theft.
- Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413, confirms illustration (g)'s adverse-inference principle applies even where the formal burden of proof does not rest on the withholding party.
- Every illustration in subsection (1) has a corresponding qualifying note in subsection (2) — the two must be read together, not the illustration alone.
Conclusion
Section 119 is Chapter VII's broadest and most frequently invoked presumption, and its detailed illustrations make it a useful bridge into the chapter's more specific presumptions that follow. This run continues backward through Chapter VII to Section 118, the presumption as to dowry death — a provision with a very different character: mandatory rather than discretionary, and built around a single, tightly defined fact pattern rather than nine general ones.