BURDEN OF PROOF

(UNDER INDIAN
EVIDENCE ACT 1872)

By
J. Hey Prabhuramteja
B.B.A., LL. B
121733201009
Case 1 -

K.M. Nanavati Vs State of Maharashtra1

Introduction: “ye raste h pyaar ke” starring sunil dutt, was the movie based on this murder
trial. The basic crux of the case revolves around the fact that Nanavati murdered his wife’s
lover, Prem Ahuja.

Facts of the case:

1. Nanavati was a Naval commander in Mumbai who was married to a English lady
slyvia.
2. Since Nanavati went on long voyages, his wife slyvia out of lonliness fell in love
with nanvati’s friend Prem Ahuja.
3. Ahuja on the other hand promised that he would marry her.
4. On one fine day slyvia confessed her thoughts to her husband Nanavati out of
sudden provocation went to search for Ahuja.
5. Then in between the exchange of words Nanavati fired bullets to Ahuja.
6. He was booked under section 302 of IPC

Issues:

1. Whether the action of Nanavati was out of sudden provocation or a pre-planned

murder?

Judgement:

It was during the trial where things of actual shades came out. Nanavati after meeting Ahuja
asked for his intention to get married to Slyvia and accepting his children. When Ahuja
passed a statement saying ‘ should i marry every woman i sleep with’, infuriated Nanavati
and he shot him.

He then went upto the police station and confessed his crime.

1
1962 AIR 605 1962 SCR Supl. (1) 567
He was booked u/s 302 and imprisoned for 3 years, however Ahuja’s sister gave a written
testimony of granting him pardon.

He was then pardoned.

CONCLUTION: In this case burden of proof is on Nanavati under Section 102 - On whom
burden of proof lies
Case 2 -
Anil Rishi vs Gurbaksh Singh 2
Facts:
An agreement to sell dated 26.03.1990 was entered into by and between the parties hereto in
relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale
deed was executed pursuant to the said agreement to sell on 27.03.1991. However, a suit for
declaration was filed by the respondent herein alleging that the said sale deed dated 26.3.1991
was a forged, fabricated and was a void document. The appellant filed his written statement
in the said suit denying or disputing the allegations contained therein. An application was
filed by the respondent for deletion of the said issue and reframe the same. The learned trial
Judge reframed the issue allowing the said application in terms of order dated 9.2.2005.
Normally the initial burden of proving the execution of a document when it is denied must
rest upon the person alleging its execution. Here in the present case the plaintiff has denied
the execution of the sale deed. The onus to prove a issue has to be discharged affirmative. "It
is always difficult to prove the same in negative". When the fact is proved in affirmative or
evidence is led to prove the same. Onus shifts on the other side to negate the existence of
such a fact.
Issues:
1.Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for?
2.Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document?

Argument:

In the present case, it is the case of the plaintiff- respondent that he had not executed any sale
deed dated 26.3.1991 in favour of the defendant-appellant and it was a forged and fabricated
document. On the other hand, it is the case of the defendant that the said sale deed is valid and
genuine document. The sale deed itself is in possession of the defendant.

Judgement:

In a suit for recovery of possession based on title it is for the plaintiff to prove his title and
satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over
the suit property and for the possession to be restored to him. However, as held in A.
Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and
onus of proof: burden of proof lies upon a person who has to prove the fact and which never
shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of
evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able
to create a high degree of probability so as to shift the onus on the defendant it is for the
defendant to discharge his onus and in the absence thereof the burden of proof lying on the
plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."

2 (civil) 2413 of 2006

For the reasons aforementioned, the impugned judgment cannot be sustained. The order
reframing the issue is set aside thus reviving the issue originally framed. The Trial Court will
be free to frame any additional issue if it is felt necessary.

Conclusion:

Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right
or liability dependent on the existence of facts which he asserts, must prove that those facts
exist.

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 suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the
Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the
affirmative of the issue and it rests, after evidence is gone into, upon the party against whom,
at the time the question arises, judgment would be given, if no further evidence were to be
adduced by either side.
CASE 3-

OUSEPH V. STATE OF KERALA.3

Facts:
1.According to the prosecution the contraband of 5 kilograms of dried ganja was seized from
the room belonging to the appellant on 14-9-1990.
2.There is no evidence whatsoever to show that at the time of seizure.
3.All this alleged contraband by PW 2 Sub-Inspector of Police was sealed. It is the
prosecution case itself that the said contraband was handed over to PW 5 Circle Inspector of
Police on 17-9-1990. Even at that point of time there is no evidence to show that this
contraband was sealed.
4.On the contrary it is the evidence of these two police officers that the same was not sealed,
though they contended that it was kept in safe custody. It is the further case of the prosecution
that they took the permission of the jurisdictional court on 13-10-1990 to take sample for the
first time from the original stock of the contraband to send the same to the Chemical
Examiner(But the same was sent only on 28-11-1990 nearly after a month the permission of
the court was obtained. Till this stage the seized contraband was not kept in a sealed
condition. The Chemical Examiner filed his report on 30-5-1991 who found that the sample
sent to him was ganja, a contraband under the Act. The courts below accepting this fact and
other evidence led by the prosecution have found it sufficient to base the conviction)
Issues:
Police has seized the 5 kgs of ganja in applient room the issue of the case is whether the
applient was consuming or trading with that ganja according the NDPS act trading and
consuming the ganja which is narcotic is an offence.
Judgement:
The High Court of Kerala at Ernakulam held that
The appellant in this case was convicted by the Court of the Sessions Judge, Thodupuzha for
offences punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 and was sentenced to undergo rigorous imprisonment for five years
and to pay a fine of Rs 25,000 and in default to undergo further imprisonment for a period of
one year.

3
Criminal Appeal No. 896 Of 1997
Case 4 -
4SATISH VIVEKANAND SHUKLA VS THE STATE OF MAHARASHTRA
Facts :
The deceased woman is subjected to cruelty and harassment by her husband , husband
demanded dowry and assaulted her several times this is the reason for her commission of
suicide at her parental house.realtionship was for some days but later she left matrimonial
house and went to her parents and stayed there and had some conversations regarding to her
matrimonial life with her sister via WhatsApp application so compliment was father of
deceased women and filed FIR on the petitioner i.e. husband of the deceased women, and the
said portioner had applied for the bail is granted
ISSUES: 1.Whether 113B presumption to dowry death attract the women suicide
2.Hearsay evidence given by the women who is neighbour will be admissible ?
ARGUMENTS:
the learned advocate for the applicant submitted that the allegations is FIR are afterthought
advocate the are no previous complaints the applicant booked tickets along with the victim to
attend a marriage ceremony at their home town at U.P. which shows the relationship between
the applicants and deceased for leaving the matrimonial home there is no independent
evidence to support the prosecution case the suicide was committed at the parental home by
the deceased 15 days after the victim left the home and in the investigation the phone of
deceased was the conversation shows that the relation between deceased and applicant was
good
learned APP submitted that the victim was subjected to ill-treatment by accused within short
span of time after the marriage the victim had committed suicide and same whats app
conversation indicated relationship between applicant and the the deceased to ill-treatment. It
is further submitted that the section 113-A of Indian evidence act attracts it presumption to
cause death and it is therefore submitted that the application to bail should be rejected

JUDGEMENT:
After perusing the charge sheet and the FIR it was observed by the court that the deceased
committed suicide at her parental home and as per the submitted WhatsApp conversation
nothing shown that there was demand of dowry and some of hearsay evidence were collected
the neighbours stated that husband use to harass the deceased for the more dowry the
investigation is completed and charge sheet is filed taking into consideration of aforesaid
circumstances, the case for grant is made of bail is made out

4 CRIMINAL BAIL APPLICATION NO. 1316 OF 2018

Case 5 -
Jarnail Singh vs Punjab State Power Corp Ltd And Ors5
FACTS:
Jarnail Singh petitioner was working as Junior Engineer with Punjab State Electricity Board
now Punjab State Power Corporation Limited. He retired from service on 31.3.2005. After
his retirement, he was served with charge sheet dated 8.6.2005 wherein it was alleged that
one Malkit Singh who is posted as LDC operation in Sub Division Nathuwala had applied for
a 3 HP tubewell connection and that at the time of releasing of connection, the present
petitioner, on the asking of the applicant that he has got some other land, released the
connection in the land of one Kulwinder Singh son of Nachhattar Singh, without taking the
proof of the ownership of the land, which is a violation of the rules and the regulations of the
said Corporation. After the inquiry, initially, a 5% cut in the pension was imposed vide order
dated 29.5.2007. Against the said order the petitioner preferred departmental appeal and
approached the appellate authority seeking quashing of the punishment order but same was
dismissed 1 of 4 vide order dated 6.11.2008. Aggrieved with both the orders, the petitioner
approached this Court by filing CWP No.12270 of 2010, which was decided on 23.5.2011,
wherein this Court set aside the said punishment order on the ground it is not a speaking
order and also set aside the order dated 6.11.2008. However, liberty was given to the
respondent to reconsider the matter and pass a speaking order in accordance with law. Now
the respondents have passed a speaking order dated 28.7.2011
ISSUES:
(1)Whether withholding or postponing the payment of pension or gratuity amount due to
account of commutation of pension is permissible in law?
(2)Whether the authorities could withhold or postpone the payment of retiral benefits?
(3)Whether the Government can initiate or continue with the departmental enquiry long after
the date of alleged lapse in spite of the fact that the officer had retired from service many years
back?
(4)Should the enquiry proceedings be quashed on the ground of long pendency alone?
Argument:

Learned counsel for the petitioner has argued that no pecuniary loss was caused to the
department. Therefore, cut in the pension could not be imposed under Rule 2.2(b) of the Punjab
Civil Services Rules, Volume II.

I am of the view that under Rule 2.2(b), the punishment can be imposed for grave misconduct
and in addition to that if some pecuniary loss is caused, recovery can also be effected. Recovery
for causing pecuniary loss is in addition to the cut in the pension that can be permanent or

5 CWP-8313-2014 (O&M)
temporary for a particular period. Here, in this case, no recovery is sought to be effected from
the petitioner and only cut in the pension has been imposed.

Learned counsel for the petitioner has also relied upon Full Bench authority of this Court in the
case of Dr.Ishar Singh vs. State of Punjab and another, 1994(3) RSJ 543. The perusal of the
said authority 2 of 4 shows that in the said case

However, the question as to whether a cut in the pension can be imposed only on the ground
of pecuniary loss was not considered and decided. Learned counsel for the petitioner has also
relied upon a Single Bench authority of this Court in the case of Wasdev Singh vs. State of
Punjab, 1997(1) RSJ 740. In the said case, while applying the aforesaid authority of Full Bench,
it was held that the recovery from the pension can only be made if pecuniary loss is caused.
However, it was never discussed and decided that government has a right to impose permanent
cut or cut for a particular period under Rule 2.2(b) and also recover the loss if it is found that
some pecuniary loss was caused to the government. Therefore, the said authority is also not
attracted in the present case.

Judgement:

In the case,there was grave misconduct on the part of the petitioner while working as Junior
Engineer, therefore, punishment has been imposed. The grouse of the petitioner is that SDO of
the department was also charge sheeted and he has been imposed a cut of 5% for two years,
whereas in the case of the petitioner, it is permanent cut in pension.

3 of 4 I am of the view that the facts of the case qua the said SDO are different. Perusal of the
order Annexure P8 shows that he was supervisory officer and on finding illegality, he had
disconnected the connection. Therefore, there were mitigating circumstances to pass a different
order. Therefore, petitioner cannot claim parity with the punishment order passed qua the said
SDO. The said order is a well-reasoned and there is no ground to set aside the same.
CASE 6 -

PRATAP SINGH V. STATE OF U.P.AND OTHERS6

Facts:
The elections, on the post of Pradhan of Gram Panchayat Sisana Pargana, Tehsil and District
Baghpat, were held on 25.8.2005. The respondent no. 3-Paramjeet was declared elected with
1100 votes as against Shri Pratap Singh-writ petitioner with 1099 votes, with a margin of
only one vote. Shri Pratap Singh filed an Election Petition No. 2:3 4/5 under section 12-c of
up panchayat raj act, 1947 (in short the act), alleging corrupt practices and gross irregularities
in counting of votes. It was stated in the election petition that Shri Nrapjeet Singh, real
brother of Shri Paramjeet Singh, returned candidate is working in Bhagpat Sugar Mill, where
the counting took place, and the returning officer and the other employees on the election
duties were the employees of Ganna Vikas Samiti. They caused undue influence in the
elections. The counting rooms were changed. In substance, it was contended that according to
the statements of presiding officer, a total number of 3303 votes were cast out of 3735
electors in the electoral list at the time of counting. However 3292 votes were found out of
which election petitioner secured 1099, Shri Paramjeet Singh-opposite party No. 1, 1100
votes; Shri Jagdish-opposite party no. 2, 925 and Shri Paresh- opposite party no. 3, 40 votes,
and 129 votes were declared invalid. Initially election petitioner was declared elected with 26
votes but the results were not declared. Then he was declared to be elected with 16 votes.
Once again the election results were stopped. On the third occasion, he was declared to be
elected with 10 votes and once again the results were not declared and thereafter the opposite
party No. 1 was declared to be elected with one vote. In paragraph-7 of the election petition,
it was stated that there was a difference of 10 votes.
ISSUES:
1.Issue Nos. 1 and 3, with the finding that there was no denial of the fact that in the elections
3303 votes were cast in the ballot box, whereas 3293 were counted, including 3164 valid
votes with 129 invalid votes.
2.On issue No. 2, she held that according to the election results in Schedule-6, election
petitioner was found to have secured 1100 votes and opposite party No. 1-Paramjeet 925
votes; 40 votes were cast in favour of Paresh and 129 votes were declared invalid.
ARGUMENT:
. Shri B.D. Mandhyan, Senior Advocate, appearing for the petitioner submits that there was
specific pleadings making allegations and giving material particulars proved by evidence on
record to show that there were serious irregularities in counting of votes, which was effected
by the presence of Shri Nrapjeet Singh the brother of the returned candidate along with the
staff of the sugar mill. Shri Nrapjeet Singh was working in the sugar mill, and that his fellow

6 (CRIMINAL) NO.7021 OF 2007

workers were involved in counting. It was established that 3303 votes were put in the ballot
box whereas only 3293 votes were counted. The election petitioner was initially declared
elected with 26 votes; thereafter by 16 votes and then by 10 votes but was still declared
defeated with one vote. Shri B.D. Mandhyan has relied upon a judgement of this Court
in Smt. Vibha Sharma vs. Smt. Saroj and others (1997) 1 UPLBEC 500 in submitting that
narrow margin of votes would not by itself justify recounting but this is a fact which can be
taken into consideration while deciding whether to order a recount. In Bhagauti vs. State of
UP 2005 (1) AWC 732 it was held that where there is narrow margin of one vote and there
was sufficient pleading in coming to the conclusion that irregularity was committed in
counting of ballot papers, the direction for recount does not suffer from legal infirmity.
In Sobh Nath vs. State of UP, 1999 (1) AWC 451 the same view was taken in a matter where
there was difference of only two votes, and in Reeta Yadav vs. State of UP , 2007 (8) ADJ
710 where there was margin of only seven votes, the court relied upon Ram Aadhar Singh vs.
District Judge 1985 UPLBEC 317, in which a Full Bench of this Court held that inspection of
ballot papers for recount is provided only if conditions laid down in that judgement were
satisfied. Similar view was taken in Ashok vs. Additional District Judge with, Varanasi 2004
(96) RD 482 in which it was held that there are specific and categorical pleadings supported
by oral evidence recount could be directed.
Judgement:

It is true that a recount is not to be ordered merely for the asking or merely because the Court

is inclined to hold a re-count. In order to protect the secrecy of ballots the Court would permit

a re-count only upon a clear case in that regard having been made out. To permit or not to

permit a recount is a question involving jurisdiction of the Court. Once a recount has been

allowed the Court cannot shut its eyes on the result of recount on the ground that the result of

recount as found is at variance with the pleadings. Once the Court has permitted recount within

the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount

which has to be given effect to."

There was no evidence or material on the record except the statement of the election petitioner

that 3303 electors had exercised their right to vote. The finding is not based on the perusal of

the election record or the counting of the counter foils. All the plaintiff witnesses stated that

according to the statement of the presiding officer, 3303 votes were cast. The presiding officer

was not examined. There was no such admission by the returned candidate in the written

statement or in his oral statement that 3303 electors had exercised their right of votes and had

actually put their votes on the ballot box. The findings recorded by the election tribunal as such
were erroneous and were not based upon any relevant material or admissible evidence on

record. With regard to the corrupt practices by brother of the returned candidate and the persons

of the Sugar Mill, who were engaged in the election duties and counting, there is no specific

pleadings or proof of the method and manner in which they had influenced the elections or the

counting. The election petition and the evidence led by petitioner did not suggest as to how and

in what manner the election was influenced or induced by their presence.

The order, directing recount was not a valid order passed in accordance with the law and

consequence recount of the votes will not benefit the election petitioner.

The Supreme Court in V.S. Achuthanandan (supra) has held that where the order of recount is

not valid, the result thereafter would not be available to decide the election petition.

The writ petition is dismissed. Interim order is discharged.

Case 7 -

Mahaboob Sab & Another v/s Union of India7

Facts:

One Mr. Shahnawaz was said to have been travelling in Train bearing No.1014 as a bona fide
passenger and on the fateful day viz., on 3.9.2003 he is said to have fallen down from a moving
Train on account of heavy jerk and suffered multiple injuries and was shifted to Victoria
Hospital for treatment and on account of the injuries sustained and medical treatment extended
to said Shahnawaz did not save his life and ultimately, on 6.9.2003 he is said to have succumbed
to injuries sustained in accident.
ISSUES:

(i) Whether the applicant proves that the deceased Shahnawaz while travelling by Train No.

Argument:

On account of death of said Shahnawaz his parents i.e., appellants herein filed a claim petition
under Section 16 of the Railways Act, 1989 claiming compensation for death caused in train
accident in a sum of Rs.4,00,000/-. On filing of complaint before Railway Claims Tribunal,
Bangalore, same came to be registered as O.A.No.6/2004 by Railway Claims Tribunal,
Bangalore Bench and notice was issued to respondent.

Judgement:

Court held that,

Respondent filed a detailed Statement of objections contending that accident in question does
not attract the definition of the word ?untoward incident? as defined under Section 123(c) of
the Railways Act, 1989 and it was contended that claimants were not entitled to claim
compensation under Section 124A of the Railways Act, 1989. Having denied entire averments
made in claim petition, respondent sought for dismissal of claim petition.

7
Appeal No.14904 of 2007 (GM-CPC)