Q.1 WHAT IS BURDEN OF PROOF?

 The word 'burden of proof' has not been defined in the Evidence Act.
 IN Simple term burden of proof means
 Responsibility to prove the fact in a case
 Or obligation to prove a fact
 Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the
provisions of "Burden of Proof".
 The expression burden of proof is explained in S.101 of Indian Evidence
Act as, "When a person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person".

PRINCIPLES OF BURDEN OF PROOF

The underlining principles of the Burden of Proof are contained in the concept
of 

A) Onus Probandi  B) Factum Probans

Onus probandi means the burden of proof. Generally, a party who alleges an
affirmative position has to prove it.

'Factum probans' is Proving the fact

Thus together how to prove facts and who shall prove and to what extent?

Sections 101, 102 and 103 of the Indian Evidence Act provides the standard
laws that govern the Burden of Proof.

Sec-101 read:- Whoever desires any Court to give judgment as to any legal

right or liability dependent on the existence to facts which he asserts, must
prove that those facts exist.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime
which A says B has committed. A must prove that B has committed the crime.

Therefore the burden of lies on the party who substantially asserts the
affirmative of the issue and not upon the party who denies it.
Exception

The general rule that a party who desires to move the court must prove all the
facts necessary for that purpose (sec-101 to 105) is subject to two
exceptions:-
 He will not be required to prove such facts as are especially within the knowledge of the other party.
[sec-106]

 He will not be required to prove so much his obligation in respect of which there is any presumption
of law [sec-107 to 113] or some cases of fact [sec-114] on his favour.

Section 102 - On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail
if no evidence at all were given on either side.

Illustrations

(a) A sues B for the land of which B is in possession, and which, as A asserts,
was left to A by the will of C, B's father.

If no evidence were given on either side, B would be entitled to retain his

possession. Therefore the burden of proof is on A.

Distinction between the burden of proof and onus of proof?

The burden of proof has two meaning

 Burden of proof to establish a case &

 Burden to adduced evidence

The burden of adducing evidence is also known as onus of proof. These types
of burden of proof is always unstable and constantly shifts from one party to
another.  The burden of proof of second sense has been provided u/s 102.

For example:- In a criminal trial the burden of proof of the accused (that

accused committed the offence)  is always on the prosecution. This burden of
proof is fixed and can not shift. This is what sec-101 says. Once the
prosecution established the guilty of the accused, the accused if he wants can
bring his case within any of the general exceptions of IPC.
The Supreme Court in the case of Addagada Raghavamma & Anr. v.
Addagada Chenchamma & Anr. (1963) held that there is an essential
distinction between the burden of proof and onus of proof;

 The first one is the burden to prove the main contention of the party
requesting the action of the court, while the second one is the burden to
produce actual evidence.

The first one is constant and is always upon the claimant but the second one
shifts to the other party as and when one party successfully produces
evidence supporting its case.

Section 103 of the Indian Evidence Act 1872 Burden of proof as to

particular fact.-

The section reads that the burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence unless it is provided
by any law that the proof of that fact shall lie on any particular person.

Illustration: A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was elsewhere.
He must prove it.

It differs from s. 101. By s.101 the party has to prove the whole of the facts
which he alleges to entitle him to judgment when the burden of proof on him.

This section provides for the proof of someone particular fact. If the accused
wishes to prove a particular fact, his alibi for instance, he must prove it.

Proof of Alibi.- the burden of proving the plea of alibi is on the accused
person. His evidence, in this case, was contradictory and also not supported
by any reasoning. The order rejecting the plea of alibi was held to be proper.

>

Section 104 -  Burden of proving the fact to be proved to make evidence

admissible
This is a burden of proving a fact that is necessary to be proved to allow any
person to establish evidence of any fact and is on the person who intends to
establish such an evidence.

Illustration

 If A desires to prove the declaration of death by B, A must prove that B

is dead.
 B intends to prove by secondary evidence, the contents of a lost
document.

Section 105 - Burden of proving that case of accused comes within

exceptions

Section 105 has a special characteristic. It is only applicable to criminal cases

when an accused is interested to take benefit of ‘the general exceptions of the
Indian Penal Code or of any of the special laws.

The general principles relating to burden of proof are:

 the accused is always presumed to be innocent, and

 it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge

Under section 105 the burden lies on the accused. Once the prosecution has
been successful to prove the guilt beyond reasonable doubt that the accused
had committed offence. It is immediately shifted to the accused who, if he so
desires, may set up a defense of bringing his case within general exceptions
of I.P.C. or within special exception or proviso contained in any part of the
same code or any other law. Where the accused has led no evidence in
defence to support the plea of legal insanity,

Illustration

 When A who is accused of murder alleges that because of lunacy he was

unaware of the nature of the act. The burden of proof rests on A.
 An accused of murder, alleges that because of sudden provocation, he
lost self-control, the burden of proof is on A.
The principle underlying Section 106, which is an exception to the general rule
governing burden of proof, applies only to such matters of defense which are
supposed to be especially within the knowledge of the defendant.

Section 106 is an exception to general principles laid down in Section 101 of

the Evidence Act. There is an apparent contradiction between the two
sections, because the burden of proof lies on the prosecution under section
101, whereas Section 106 burden lies on the accused or adverse party in
criminal cases under exceptional cases regulated by I.P.C. or by any special
law. If any person claims contrary under section 106 the burden of proving the
fact would be upon him since that is within the special knowledge. It was held
that the fact as to who the boy was, was especially within the knowledge of
the accused and the burden was on him. If facts within the special knowledge
of the accused are not satisfactorily explained by the accused it would be a
factor against him, though by itself it would not be conclusive about his guilt

Section 107 and 108 of the Indian Evidence Act 1872

Sec. 107 reads, Burden of proving death of person known to have been alive
within thirty years. When the question is whether a man is alive or dead, and it
is shown that he was alive within thirty years, the burden of proving that he is
dead is on the person who affirms it.

Sec 108 reads, Burden of proving that person is alive who has not been heard
of for seven years. The question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of proving that he
is alive is [shifted to] the person who affirms it.
S.107. Burden of proving death of person known to have been alive within
thirty years.

When the question is whether a man is alive or dead, and it is shown that he
was alive within thirty years, the burden of proving that he is dead is on the
person who affirms it.
S.108. Burden of proving that a person is alive who has not been heard of
for seven years.

Provided that when the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of proving that he
is alive is shifted to the person who affirms it.
S.109. Burden of proof as to relationship in the case of partners, landlord
and tenant, principal and agent

When the question is whether persons are partners, landlord and tenant, or
principal and agent, and it has been shown that they have been acting as
such, the burden of proving that they do not stand, or have ceased to stand to
each other in those relationships respectively, is on the person who affirms it.
S.110.Burden of proof as to ownership

When the question is, whether any person is owner of anything of which he is
shown to be in possession, the burden of proving that he is not the owner is
on the person who affirms that he is not the owner
S.111.Proof of good faith in transactions where one party is
in relation of active confidence.

Where there is a question as to the good faith of a transaction between

parties, one of whom stands to the other in a position of active confidence, the
burden of proving the good faith of the transaction is on the party who is in a
position of active confidence.
Illustrations

(a) The good faith of a sale by a client to an attorney is in question in a suit

brought by the client. The burden of proving the good faith of the transaction is
on the attorney.
S.114A. Presumption as to absence of consent in certain prosecutions for
rape.

114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause
(d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause
(k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the
Indian Penal Code, where sexual intercourse by the accused is proved and
the question is whether it was without the consent of the woman alleged to
have been raped and such woman states in her evidence before the court that
she did not consent, the court shall presume that she did not consent.

Explanation.-  In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code.

Case law

Nawab Khan vs. State 1990 cr l j. 1179, it was held by the court the moment
the prosecutrix with whom sexual intercourse is committed, disposes before
the court that she did not give the consent to sexual intercourse. then the
court shall presume that there was no consent. in such a case if the accused
claimed that there was consent then he has to prove that the prosecutrix
consented to the sexual intercourse.
S.112.Birth during marriage, conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after
its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have
been begotten
S.113.Proof of cession of territory

A notification in the Official Gazette that any portion of British territory

has1before the commencement of Part III of the Government of India
Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or
Ruler, shall be conclusive proof that a valid cession of such territory took
place at the date mentioned in such notification.
S.113A. Presumption as to abatement of suicide by a married women

113A (Amendment 1983).

Presumption as to abetment of suicide by a married woman.- When the

question is whether the commission of suicide by a women had been abetted
by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband has 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.
Explanation

For the purposes of this section, “cruelty” shall have the same meaning as in
section 498-A of the Indian Penal Code (45 of 1860).
S113B.Presumption as to dowry death

When the question is whether a person has committed the dowry death of a
women and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with,
any demand for dowry; the court shall presume that such person had caused
the dowry death.
Explanation

For the purposes of this section, “dowry death” shall have the same meaning
as in section 304B of the Indian Penal Code (45 of 1860
S. 114.Court may presume existence of certain facts

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.

What Is the Burden in a Civil Trial and a Criminal Trial?

The burden of proof in a civil case is not the same as the burden of proof in a
criminal case. In a criminal case, the prosecutor must prove that the accused
is guilty beyond a reasonable doubt. When it comes to a civil case, you must
prove your case based on the evidence that you can show the court.

In civil proceedings the party who alleges certain things must prove his case,
but proving beyond doubt is not necessary.

In a civil case the plaintiff makes the original allegations in a complaint and
bears the initial burden. The defendant then files a responsive pleading
denying some or all of the allegations and the burden shift to them to prove
their defenses or counterclaim.

In a criminal trial, the burden of proof is always on the prosecution, as the

defendant is presumed innocent. If the prosecution fails to prove guilt, the
accused does not need to prove anything.

Exceptions: There are a few exceptions when the accused must prove

their defense to the charges. These include the defenses
of insanity, duress and self-defense.

Burden of Proof and Presumptions

Under Law Of Evidence
INTRODUCTION

In a legal proceeding, the question as to which out of the two parties has
to prove a fact is answered with the question, on which party does the
burden of proof lie. The court does not demand proof of self-evident facts
and also holds a presumption of continuity of things until something
contrary is provided. Chapter VII of part III of the Evidence law deals
with, on which party does the burden of proof lie and presumptions.
 BURDEN OF PROOF

Section 101

From the point of view of the burden of proof, facts can be placed in two
categories: those which affirm a fact and those which deny it. According
to section 101 of the Indian Evidence Act 1872, the party who asserts the
affirmative of an issue, to make the court give a judgment on the basis of
those facts, carries the burden of proof to prove them; it is easier to prove
the affirmative than the negative. The affirmative in issue should not be in
form or grammar but in substance.

The following was observed by the Supreme Court in State of

Maharashtra v Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199): The
expression ‘burden of proof’ has two meanings, legal burden and
evidential burden. In a criminal trial, the accused is considered to be
innocent until proven guilty and the prosecution carries the burden to
prove his guilt. This burden to prove everything essential against the
accused is the legal burden and it never shifts. Although, sometimes, the
law may require the accused to prove some fact in issue but it is not as
onerous as what the prosecution carries.

Section 102

This section tries to locate the party on which the burden of proof lies. It
says that the burden shall lie on the party which shall fail if no evidence
were given from either side. Hence, this section focuses on the evidential
burden or the ‘onus of proof,’ while section 101 deals with the legal
burden or the burden of proof relating to law or procedure.

The illustration (b) to the section makes it clearer: ‘A’ sues ‘B’ for money
due on a bond. The execution of the bond is admitted but B says that it
was obtained by fraud, which A denies. If no evidence were given on
either side, A would succeed as the bond is not disputed and the fraud is
not proved. Therefore the burden of proof is on B.

burden to prove that the bond was genuine but it is obtained by fraud, an
evidential burden (or onus), was on B, who asserted it.
Section 103

This section states that the burden of proof, regarding any particular fact,
shall lie on that person who wants the court to believe in its existence,
unless, the law requires some particular person to prove that fact. This
section broadly lays down that whoever asserts something in a court, has
to prove it. Illustration: ‘A’ prosecutes ‘B’ for theft, and wishes the court
to believe that B admitted the theft to ‘C.’ A must prove the admission. B
wishes the court to believe that, at the time in question, he was
elsewhere. He must prove it.

Section 104

This section states that when the admissibility of one fact depends on
another fact, the party who wants to admit such fact must prove the
other fact on which admissibility depends. Illustration (a) to this section
makes it clear: ‘A’ wishes to prove a dying declaration by ‘B.’ A must
prove B’s death.

Section 105

This section only applies to criminal cases. The preceding sections

applied to civil, as well as criminal cases. If an accused has been
established to be guilty of an offence and he takes the defence of any of
the general exceptions mentioned in the Indian Penal Code, 1860 or any
other defence provided in any act within which the offence committed
comes under, he has to prove it.

the leading case of K M Nanavati v State of Maharashtra (AIR 1962 SC

605), a naval officer was held guilty for murdering his wife’s paramour.
The accused could not prove that he fired the shots accidentally or in
self-defence.
In Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Supreme Court
held that it is the duty of the prosecution to establish, beyond reasonable
doubt that the accused committed the offence. If the accused pleads
insanity, it is his duty to prove so and his burden of proof is not as high as
that of the prosecution. If the evidence provided by the accused does not
create an absolute doubt, but even a reasonable one, regarding the
ingredients of an offence, he could be acquitted.
Section 106

It states if any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. For example, when a person is
charged with travelling without a ticket, the burden lies on him to prove it
as the fact that he bought a ticket is only known to him. The principle
behind this section is an application of the maxim, res ipsa
loquitur.       

SURVIVORSHIP & DEATH

Section 107

This section lays down a presumption that a man would be considered

alive, up to 30 years, after he was last seen or heard of. This shall be
presumed if the question in issue is whether a man is alive or dead and
the burden of proving that the man is dead is on the person affirming it.

Section 108

This section states that if a person who has disappeared and has been
unheard of for seven years by those who would naturally have heard of
him, if he were alive, that person would be presumed to be dead. This
presumption arises when a question of him being alive or dead arises in
the court. Hence, if the court adopts the presumption, the party who
claims that the person is alive has to prove it. It is a simple presumption
of death and not the time of death.

In Chard v Chard (1956 P239: 1955 3 WLR 954),a man got married in
1909. He last heard of his wife in 1917 and remarried in 1933, and
subsequently filed a petition for a declaration that the marriage of 1933
was a nullity. The court held that the presumption of her death was not
proven as any evidence of the condition of her health or those, who would
have naturally heard of her, were not given and therefore, the marriage of
1933 was a nullity.     

Section 109

When a question arises as to whether certain persons are partners,

landlord and tenant or principal and agent and it has been shown that
they have been acting as such; the court presumes them to be so related.
If a person denies the relationship or affirms that the same has been
ceased, the burden of proof to prove that they were never related or have
ceased to relate lies on him. Hence, the court presumes the existing
status quo or in the continuity of things.

Section 110

This section simply states that if the question is whether a person is the
owner of anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person affirming that he is not
the owner.

Section 111

This section states that if a person enjoys the active confidence of the
other, he must act in good faith to the other and the burden lies upon him
to prove that he did act in good faith. Illustration (b) to the section makes
it clearer: The good faith of a sale by a son just come of age to a father is
in question in a suit brought by the son. The burden of proving the good
faith of the transaction is on the father.

Section 111 A

This section makes the court presume that a person is liable for
disturbing public order and peace of an area declared to be a disturbed
area if he has been guilty of certain offences in the past. These offences
include the offences themselves or criminal conspiracy or attempt to
commit or their abatement. They include sections 121, 121A, 122 and 123
of the Indian penal code.

 Section 112

This section deals with the legitimacy of a child. The essentials of this
section:

 The child should have been born during the continuance of a valid marriage or
within 280 days of a dissolved valid marriage, the mother remaining unmarried.
 The parties to the marriage should have had access to each other.
A marriage presumed from living together for a long period of time is a
valid marriage for the purpose of legitimacy under this section. The
Supreme Court in Chilkuri Venkateshwarlu v Venkatanarayan (1954 SCR
424), held that the decision in Karapaya Servai v Mayandi (AIR 1934 PC
49) was correct. In the latter case, the privy council held that the word
‘access’ only connoted an existence of an opportunity for marital
intercourse.
In Tesku Dutta v State (AIR 2004 SC 205), the Delhi HC held that no
party could be subjected to a scientific test (such as DNA) without his
consent, just because the other party asked for it. This would infringe the
right to privacy of that other party. Only in deserving cases can such a
direction be given.

Section 113

It says that a government notification as to cession of territory to any

other state is a conclusive proof of that act. The said cession should have
taken place before the commencement of Government of India Act, 1935.

PRESUMPTION

Presumptions are of compulsory nature as they are of reasonable nature

and help in giving direction to the case and avoiding unnecessary
matters. They are of two types, as per section 4: rebuttable and
irrebuttable. Rebuttable presumptions can be overthrown by evidence
while irrebuttable ones are conclusive.

Section 113 A

This section is a presumption as to abetment of suicide by a married

woman. To attract the presumption, the following conditions have to be
met:

 The question before the court should be whether the commission of suicide by
a married woman was the result of abetment by her husband or relatives.
 The suicide must have been committed within 7 years from the date of
marriage.
 Evidence as to show that her husband or his relatives subjected her to cruelty.
Cruelty shall have the same meaning as under section 498A of the IPC.
If the three conditions are met, the court presumes that the husband or
his relatives abetted her suicide and then the burden to prove that suicide
was her own personal choice lies on the husband or his relatives.
Section 113 B

Section 304B of the IPC defines dowry death and this section deals with
the presumption as to dowry death. If the ingredients of section 304B of
the IPC are met, the onus gets transferred to the accused to rebut the
presumption. The term ‘soon before’ used in section 113B of the evidence
law means that there should be a proximate link between acts of cruelty
or harassment and death. There can be no laid down a formula to
establish such a link and the court should consider facts of each case
separately (Kunhiabdulla v State of Kerala, AIR 2004 SC 1731).

Section 114

This section states that the court may presume the existence of certain
facts, regard to the common course of natural events, human conduct,
public and private business as they stand related to those facts of the
case. As inferred from the illustrations, these may include:

 Unexplained possession of the recently stolen property has been held to

create a presumption of guilt. In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), a
case of murder and robbery, a gold ring along with handkerchief and currency
notes were recovered, at the suggestion of the accused and they all bore his
fingerprints. The court held that it was not merely a proof of robbery but a
presumptive evidence of the charge of murder as well.
 An accomplice is deemed to be unworthy of credit unless he is corroborated in
material particulars. This presumption is not mandatory and it rests on the
discretion of the court.
 Every negotiable instrument is presumed to be made or drawn for
consideration purposes.
 It shall assume continuity of things unless the contrary is provided. For
example, if a property is shown to be ancestral, it shall be presumed to be so
until the contrary is provided (Chito Mahtoo v Lila Mahto, AIR 1991 Pat 186).
 Judicial decisions and official acts (executive and legislature) shall be
presumed to be valid and correct until the contrary is shown. If there are factual
errors in a statement as under a judgment, the same can be rectified by an
application. If a person alleges any defects to rebut a presumption of
correctness of an official work, the burden would be on him to prove such
defects.
 A presumption that common course of business has been followed in
particular cases. In J Mc Gaffin v LIC of India (AIR 1978 Cal 123), the court
refused to raise a presumption that a letter to a tenant asking him to quit was
delivered. The certificate of posting was lodged but there was no evidence to
show that it was received.
 When evidence is withheld by a party, it is presumed to be against him.
 If a man refuses to answer a question, which he cannot be compelled to give,
the court presumes that the answer, if given, would be unfavourable to him.
 If the documents creating an obligation are with the obliger, the court may
presume that the obligation has been discharged. For example, if a promissory
note is in the hands of the person who made it, the presumption is that it must
have been paid off.