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Q. What do you understand by Burden of Proof? On whom the does the burden of proof lie?

State the rules of determining Burden of Proof in a suit or proceeding. When does the burden of proof shift to the other parties? Are there any exceptions?
eneral !oncept of Burden of Proof The responsibility to prove a thing is called burden of proof. When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged and they need to be proved before the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section "#" defines burden of proof as follo s ! When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The important question is ho is supposed to prove the various facts alleged in a case. In other ords, on hom should the burden of proving a fact lie" The rules for allocation of burden of proof are governed primarily by the provisions in #ection $%$ to $%&. The rules propounded by these sections can be categori'ed as (eneral rules and #pecific rules.

eneral rules
$ule " % As per Section "#"& specifies the basic rule about ho is supposed to prove a fact. It says that hoever desires any )ourt to give judgment as to any legal right or liability dependent on the existence of facts hich he asserts, must prove that those facts exist. For example, A desires a )ourt to give judgment that * shall be punished for a crime hich A says * has committed. A must prove that * has committed the crime. Another example ! A desires a )ourt to give judgment that he is entitled to certain land in the possession of *, by reason of facts hich he asserts, and hich * denies, to be true. A must prove the existence of those facts. Facts can be put in t o categories ! those that positively affirm something and those that deny something. For example, the statement, +A is the o ner of this land+ is an affirmative statement, hile +* is not the o ner of this land+ is a denial. The rule given in Section "#" means that the person ho asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus, the person ho ma,es the statement that +A is the o ner of the land+, has the burden to prove it. This rule is useful for determining the o nership of the initial burden. Whoever ishes the court to ta,e certain action against the opposite party based on certain facts, he ought to first prove those facts. -o ever, it is not very simple to categori'e a fact as asserting the affirmative. For example, in the case of Soward 's (egatt& ")*+, a landlord suing the tenant asserted that the tenant did not repair the house. -ere, he as asserting the negative. *ut the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, (ord AB,- .$ observed that In ascertaining hich party is asserting the affirmative the court loo,s to the substance and not the language used. .oo,ing at the substance of this case, the plaintiff had to prove that the premises ere not repaired. Thus, the court should arrive at the substance of the issue and should require that party to begin ho in substance, though may not be in form, alleges the affirmative of the issue. Burden of Proof and Onus of Proof The term *urden of /roof is used in t o difference senses ! the burden of proof as a matter of la and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction bet een burden of proof and onus of proof, hich as explained in the case of $anchhodbhai 's Babubhai A,$ "/)0. The first one is the burden to prove the main contention of party requesting the action of the court, hile the second one is the burden to produce actual evidence. The first one is constant and is al ays upon the claimant but the second one shifts to the other party as and hen one party successfully produces evidence supporting its case. For example, in a case here A is suing * for payment of his services, the burden of proof as a matter of la is upon A to prove that he provided services for hich * has not paid. *ut if * claims that the services ere not up to the mar,, the onus of burden as to adducing evidence shifts to * to prove the deficiency in service. Further, if upon providing such evidence, A claims

that the services ere provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract. The next rule determines ho has the onus of proof. $ule 0 % As per Section "#0& the burden of proof in a suit or proceeding lies on that person ho ould fail if no evidence at all ere given on either side. The follo ing illustrations explain this point ! ,llustration " % A sues * for land of hich * is in possession, and hich, as A asserts, as left to A by the ill of ), *0s father. If no evidence ere given on either side, * ould be entitled to retain his possession. Therefore the burden of proof is on A. ,llustration 0 % A sues * for money due on a bond. The execution of the bond is admitted, but * says that it as obtained by fraud, hich A denies. If no evidence ere given on either side, A ould succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on *. $ule * % As per Section "#*, the person ho ants the court to believe in an alleged fact is the one ho is supposed to prove that fact unless it is provided by any la that the proof of that fact shall lie on any particular person. For example, A prosecutes * for theft, and ishes the )ourt to believe that * admitted the theft to ). A must prove the admission. Another example ! * ishes the )ourt to believe that, at the time in question, he as else here. -e must prove it. Further, as specified in Section "#1, if a person ants the court to believe in a fact that assumes the existence of another fact, it is up to the person to prove the other fact also. For example, A ishes to prove a dying declaration by *. A must prove *0s death. A ishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

Specific $ules
These rules specifically put the burden on proving certain facts on particular persons ! $ule " ! As per Section "#+, hen any fact is especially ithin the ,no ledge of any person, the burden of proving that fact is upon him. When a person does an act ith some intention other than that hich the character and circumstances of the act suggest, the burden of proving that intention is upon him. For example, A is charged ith traveling on a rail ay ithout a tic,et. The burden of proving that he had a tic,et is on him. $ules of Presumption % Section "#2 and "#) say that if a person as ,no n to be alive ithin 1% yrs the presumption is that he is alive and if the person has not been heard of for seven years by those ho have naturally heard from him if he had been alive, the presumption is that the person is death. *ut no presumption can be dra as to the time of death. Sections "#/ establishes the burden in case of some relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism, do ry death, and rape.

.xceptions %
.xception " % The

general rule in criminal cases is that the accused is presumed innocent. It is the prosecution ho is required to establish the guilt of the accused ithout any doubt. At the same time, the accused is not required to prove his innocence ithout any doubt but only has to create reasonable doubt that he may not be guilty. Section "#3 specifies an exception to this general rule. When an accused claims the benefit of the (eneral 2xception clauses of I/), the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused to prove that he as insane at the time of committing the crime. In the case of 4 5 -ana'ati 's State of 5aharashtra& A,$ "/+0& #) explained this point. In this case, 3anavati as accused of murdering /rem Ahuja, his ife0s paramour, hile 3anavati claimed innocence on account of grave and sudden provocation. The defence0s claim as that hen 3anavati met /rem at the latter0s bedroom, /rem had just come out of the bath dressed only in a to el4 an angry 3anavati s ore at /rem and proceeded to as, him if he intends to marry #ylvia and loo, after his children. /rem replied, +Will I marry every oman I sleep ith"+, hich further enraged 3anavati. #eeing /rem go for the gun, enclosed in a bro n pac,et, 3anavati too ent for it and in the ensuing scuffle, /rem0s hand caused the gun to go off and instantly ,ill him. -ere, #) held that there is a presumption of innocence in favor of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. *ut hen an accused relies upon the general exception or proviso contained in any other part of the /enal )ode, Section "#3 of the 2vidence Act raises a presumption against the accused and also thro s a burden on him to rebut the said presumption. Thus, it as upon the defence to prove that there existed a grave and sudden provocation. In

absence of such proof, 3anavati

as convicted of murder.

.xception 0 % Admission ! A fact hich has been admitted by a party and hich is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party ho made the admission. For example, A as recorded as saying that he committed theft at the said premises. If A ants to deny this admission, the burden of proof rests on A to prove so. .xception * % Presumptions ! )ourt presumes the existence of certain things. For example, as per Section "#26"#), court presumes that a person is dead or alive based on ho long he has not been heard of. Section "#/, presumes that hen t o people have been acting as per the relationship of landlord ! tenant, principle ! agent, etc, such relationship still exists and anybody ho contends that such relationship has ceased to exist has to provide proof. Section ""# presumes that the person ho has the possession of a property is the o ner of that property. As per Section ""*A, When the question is hether the commission of suicide by a oman had been abetted by her husband or any relative of her husband and it is sho n that she had committed suicide ithin a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. As per Section ""*B, hen the question is hether a person has committed the do ry death of a oman and it is sho n that soon before her death such oman had been subjected by such person to cruelty or harassment for, or in connection ith, any demand for do ry, the court shall presume that such person had caused the do ry death. Thus, hen the presumption of the court is in favor of a party, the burden of disproving it rests on the opposite party