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Study Material Law of Evidence-II B.A.Ll. B (Hons) Vi Semester
Study Material Law of Evidence-II B.A.Ll. B (Hons) Vi Semester
Javaid Talib
Prof. Md. Ashraf
Study Material
Law of Evidence- II
B.A.LL. B (HONS) VI SEMESTER
Unit-1
Burden of Proof (General Rules)
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 phrase “burden of proof” has two distinct (and frequently confused) meanings:
(i) The burden of proof as a matter of law and pleading, the burden, as it has been
called, of establishing a case. This burden rests upon the party, whether plaintiff or
defendant, who substantially asserts the affirmative of the issue. It is fixed, at the
beginning of the trial, by the statements of the pleadings, and it is settled as a
question of law, remaining unchanged under any circumstances whatever. This rule
is embodied in Section 101.
(ii) The burden of proof as matter of adducing evidence. The burden of proof in this
sense is always unstable, and may shift constantly throughout the trial. This aspect
of the burden of proof is contained in Section 102. It lies at first on the party who
would be unsuccessful if no evidence at all was given on either side.
This being the test, the burden of proof cannot remain constant, but must shift as soon as he
produces evidence which prima facie gives rise to a presumption in this favour. It may again
shift back on him, if rebutting evidence is produced by his opponent. This being the position,
the question as to the onus of the proof is only a rule for deciding on whom the obligation rests
of going further if he wishes to win.
As observed by the Guwahati High Court, in a criminal trial, the burden of proving the
prosecution’s case lies squarely on the prosecution and this general burden never shifts. The
defence version may even be false; nevertheless, the prosecution cannot derive any advantage
from the falsity or other infirmities of the defence version, so long as it does not discharge its
initial burden of proving the case beyond ail reasonable doubt. (Md. Alimuddin v. State of
Assam, 1992, Cri. L.J. 3287)
Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of "burden of
Proof".
Prof. Javaid Talib
Prof. Md. Ashraf
The word 'burden of proof' has not been defined in Evidence Act. It is a fundamental principle
of criminal jurisprudence that guilt of accused is to be proved by the prosecution, and an
accused should be presumed to be innocent.
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". The question is which out of two parties has to prove a fact. The answer to this question
decides the question as to burden of proof.
Meaning of 'Burden of Proof':
In short, the burden of proof means the obligation to prove a fact. Every party has to establish
fact which go in his favour or against his opponent and this is the burden of proof. Evidence
Act lays down some principle of burden of proof of general nature.
Principle of Burden of Proof:
Theoretically the basis is divided into two parts –
A) Concept of onus probandi
B) Factum probans
Thus, together how to prove facts and who shall prove or who shall prove and to what extend?
Burden of proof is constant. Onus shifts. It consists and means that what is to be proved is
fixed. e.g. burden is constant and who shall prove that is to be decided.
This liabilities and responsibilities to prove the fact is known as onus (burden) which shifts
from shoulder of one party to the shoulder of another party. Burden of proof is always constant
because it has reference to ingredients and concepts while onus shifted from shoulder to
shoulder.
The rule of burden of proof in civil and criminal cases is of different nature. In civil proceedings
the party who alleges certain things must prove his case, but proving beyond doubt is not
necessary. In criminal cases however the guilt of the accused is to be proved beyond reasonable
doubts otherwise the accused gets benefits of doubt. Cardinal (Important) rules as to burden of
proof - Section 101, 102 and S.103 of the Indian Evidence Act, Provides three types of cardinal
rules as burden of proof.
When a person is bound to prove the existence of any fact, it is said that the burden of proof
lies on that person.
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.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B,
by reason of facts which he asserts, and which B denies to be true.
A must prove the existence of those facts.
Supreme Court in Jarnail Sen vs State of Punjab A I R 1996 SC 755 held that in Criminal Case,
the burden of proving of the guilt of the accused beyond all reasonable doubt always lies upon
prosecution, and therefore if it is fails to adduce the satisfactory evidence to discharge the
burden, it cannot fall back upon evidence adduced by the accused person in support of their
defence to rest its solely thereupon.
Section 104 provide, the proof of fact on which evidence become admissible, Where the
admissibility depends upon the proof of burden of another fact the party who wants to prove it
will have to prove the fact on which admissibility depends.
accused, he may plead and may give evidence himself also. If on the basis of evidence given
by accused, the accused is successful in plea of his defence then there is no difficulty on the
court to decide in his favour. If no evidence is given by the accused, he can still ask the court
to consider his plea of defence in that light and the prosecution fails he is entitled. If there is
no plea, no cross examination and if accused evidence is disclosing some defective evidence
in favour of accused it may be taken. Burden under 105 need not be discharged only by calling
the evidence. Burden of proof means placing evidence before the court to prove the fact and
this evidence may be proved either by one party or by another party and after all the burden
laid on prosecution in criminal case is to be prove the guilt of accused person beyond reasonable
doubt. Once a reasonable doubt is there, burden is on prosecution as laid down in
Woolmington. Accused onus shall be deemed to be discharged a prima facie case in his favour
or succeed in balance of probability.
accused to prove about the ticket. Section 101 lays down a rule that in criminal cases the burden
of proof is upon the prosecution. Section 106 is not intended to relief the prosecution to its
duty. It doesn’t intend to override the basic principle of jurisprudence that accept in very
exceptional case that burden of proof in a criminal case is on the prosecution and it never shifts.
On the contrary it is designed in Indian Evidence Act just for the purpose of convenience to
meet those cases where it is impossible or at least very difficult for the prosecution to prove
fact which are exceptional, specially within the knowledge of the accused and which he can
prove without any difficulty and inconvenience.
Section 106 should be interpreted in a common sense way and in applying it balance and
convenience must be taken in account. Section 106 is interpreted otherwise it may lead to a
very misleading conclusion. For example, that in murder case the burden of proof lies upon
accused that he did not commit murder. The legislature doesn’t intend to overrule the basic
principle of criminal law.
The word Specially means the facts within affirmatively or negative which are exceptionally
within the knowledge of the accuse and which he could prove without much difficulty. For
example, Section 106 illustration d, the word Specially means the knowledge in the nature of
something peculiar. It means facts exceptionally with in knowledge.
The person who is having special knowledge of the fact under Sec 106 has to appear as witness
in the witness box and give evidence, if he does not turn up there may be an adverse
presumption drawn against him.
Case: Eshwarai vs Karnataka 1994 SC.
In this case court held that where a man and woman were found hiding under the bed in a
bedroom of the person who was lying dead of injuries the burden of proof lies upon them to
explain their presence and also the circumstances in which the deceased met his death.
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.
Sec 108 is a proviso to Sec 107. Sec 107 deals with the continuation of the things or state of
things. Once a thing or state of thing is proved to have existed the law presumed to its
continuance that thing or state of thing ordinarily last or alive unless contrary is proved.
Prof. Javaid Talib
Prof. Md. Ashraf
Sec 107 deals with the presumption of continuance of human life, while Sec 108 deals with the
presumption of death. Sec 108 is an exception to Sec 107 and so where Sec 108 is attracted Sec
107 can have no application.
Case: Subhash Ram Chandra v. Union of India (AIR 1973 Bom 64)
S.108.Burden of proving that 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.
Principle:
Section 108 lays down that when it is proved that a man 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 lies on the person who affirms it. Whereas the presumption under section 107
is rebuttal, the presumption under section 108 is about to fact of death. In order to qualify the
latter presumption, it has to be proved that the man in question has not been heard of for seven
years by those persons who would naturally have heard of him, and they have taken all steps
to trace him out and his whereabouts. Both presumptions under sections 107 and 108 come into
play after a suit is instituted.
Presumption:
The presumption under this section is that if a person has been unheard of for a period not less
than seven years, howsoever long the period of disappearance may be the only presumption
and conclusion possibly would be that the person died when the question arose, that is the date
of plaint, So long as the dispute is not raised before any Forum and in legal proceedings the
occasion for raising the presumption does not arise.
No presumption as to time of death:
The presumption under this section only extends to the fact of death of a person but not that at
what time the man died. “The exact time of death is not a matter of presumption but of proof
of evidence.” In a case, where only a period of 4Vi years had elapsed, section 108 was not
applicable; the presumption under section 108 could not be drawn. In Md. Sharif v Bande Ali
their Lordships of the Allahabad High Court held that “the only presumption is that ‘M’ is
dead.
There is no presumption that he died in the first seven years or in the last seven years. The
presumption merely is that he was dead……………………………… the burden of showing
Prof. Javaid Talib
Prof. Md. Ashraf
that he was alive being thrown upon the defendant if it was necessary for them to do so.” The
Supreme Court in other cases also, held that there is no presumption of the exact time of death
and the date of death has to be established on evidence by the person who claims a right for the
establishment of which that fact is essential.
Even, otherwise, court may, in the circumstances of each case, make a presumption even
regarding time of death. Where the death of a woman was not in question under section 108
the court shall presume that she was dead having not heard of for the period of seven years, it
is itself not the ground to presume that she had died seven year prior to the date of institution
of suit.
Compassionate appointment:
The question relates to time limit of five years prescribed in relevant rules for seeing
compassionate appointment. For the purpose of deciding the case, assumption made that five
years to be removed after seven years under section 108 had expired and thus the request for
compassionate appointment was beyond time-limit of five years prescribed in relevant rules.
Suggested Readings:
1. Indian Evidence Act, 1872 (Relevant Statutory Provisions)
2. Monir : Law of Evidence
3. Batuk Lal : Law of Evidence
4. Ratan Lal & Dhiraj Lal : Law of Evidence
5. Avtar Singh : Principle of Law of Evidence
6. Tandon : Indian Evidence Act
7. R. Dayal : Indian Evidence Act
8. Dr. Satish Chandra : Indian Evidence Act