Similarly in case of rebuttable presumptions, the burden of proof may shifts to the defendant under

section 29 of the Evidence Act. Under Section 7 of the Act, the court can presume that a person
possessing stolen property is a thief or with knowledge of the property being stolen have bought the
property. Unless, of course, the person can prove ‘reasonable ground’ for the being of that property
with him or that according to his profession that property could have come under his possession
without the proper knowledge regarding the stolen nature of the property. In such case prosecutor
simply by proving that (a) property was stolen and (b) defendant possessed the property, can establish
the prima facie case against the defendant and immediately the burden shifts to the defendant, who if
unable to prove anything would be convicted. However if the defendant is able to prove, to the
satisfaction of the court, that there is ‘reasonable ground’ for the being of the stolen property under his
possession or according to his profession that property could have come under his possession without
the proper knowledge regarding the stolen nature of the property then the defendant would be
acquitted. Here, in the above mentioned cases the standard of proof required by the defendant to prove
his stance under section 27 and 29 is not like the standard of proof that the prosecution’s case demand,
i.e. proof beyond reasonable doubt. However, in Corruption, Trafficking and Drugs cases it seems the
defendant has lot higher standard of proof to carry in order to prove his innocence. That is, the
prosecution can simply establish the prima facie case and rest is burdened on the defendant. In Bhim
Bahadur Pariyar v. HMG the defendant was convicted on the basis of the FIR and victims testimony in
the court, when the defendant was unable to discharge his burden that the testimony was false under
section 7(2) of the Human Trafficking Prevention Act. Similarly in Kul Bahadur Kchhetri v. HMG and Ram
Chandra Devkota v. HMG the court found defendants guilty of corruption in Nepal Food Corporation,
when defendant’s failed to prove how the government property was missing in the corporation even
though prosecution only proved that under defendants supervision those properties got missing. And in
Surendra Singh Rajput v. HMG, the defendant was convicted under Abuse of Drug Prevention Act for
attempting to export Phensedyl, after the defendant failed to discharge his burden under section 12 of
the said act. However, in Krishna Limbu v. HMG Supreme Court erred the principle under section 12 and
acquitted the defendant when defendant pleaded that the Phensedyl that he was carrying was not even
a drug as it failed to mention required substance codin in its label. In fact if the burden on the defendant
was under section 27 of the Evidence Act, defendant’s argument could have instilled doubt in the
conviction, however as Abuse of Drug Prevention Act specifically holds defendants responsible to carry
out the burden of proof simply stating that the Phensedyl did not contained codin, could never satisfy
the burden of proof that lay on the defendant.

That is, under the above mentioned Acts the standard of proof for the defendants’ burden of proof is
lot higher than under section 27 of the Evidence Act. Under section 27 of the Evidence Act simply raising
doubts may result into the satisfaction of burden, under the principle of presumption of innocence and
requirement of proof beyond reasonable doubt. But on the contrary, the burden under above
mentioned Acts requires discharging on the balance of probability and mere creation of doubt could not
succeed in discharging such burden.
Burden of Proof : Definition

The expression burden of proof means “obligation to proof a fact.”Every party of the case has to
establish facts which go in his/her favor or against his/her opponent. In other words, the general rule
with regard to burden of proof is:”He/she who asserts must prove.”The reason is “one who drags
another into the court must hear the burden of proving the facts which he/she asserts”.

The word ‘proof’ signifies a state of mental certainty as to existence or non-existence of some fact and
the phrase’ burden of probabilities which has to be compulsive or overwhelming in the case of a choice
in favor of a conviction as to remove all reasonable doubt. Burden of and presumption may become
decisive only where evidence from both sides is equally balanced or there is paucity of evidence on
either side.

Rebuttal of Presumption:

Section 29 of the Evidence Act 2031 states that there are certain facts, which are presumed by the court
in favor of either party to the litigation. Presumption of law are those situations in which the law directs
the court to presume certain facts on proof of some other facts. The court is obliged to presume as per
the direction of law if such situation does not exist. Such situation are listed at the Section 6 of the
Evidence Act 2031.The court acts as per the presumption until it is rebutted by the other party.

Similarly, presumption of facts are those situations in which the court acts on option whether to
presume certain fact or not. If it does presume , the other party must bear burden of proof to rebut it.
Section 7 of the Evidence Act 2031 has laid down such situations.

Presumption of Ownership:

Section 33 of the Evidence Act 2031 says that any person who is in possession of property is presumed
to be owner of that property. The person rebutting it must bear burden of proof to the same effect.
Similarly Section 110 of Evidence Act 1872 of India lays down that a person in possession of a property
is presumed to be the owner . If anybody denies that the possessor is not owner, the burden of proof
lies on him/her.

Burden of proving whether a person is alive

Section 32 of the evidence Act 2031 lays down that where a person is unknown for 12 years to his/her
close relatives , the law presumes that such person is dead .The party claiming that such person is alive
must bear burden of proof to that effect. As per the Section 108 of the Evidence Act 1872 of India states
that “when a person is not heard of for seven years, he/she is presumed to be dead by law.But if
anybody says that he/she is alive , the burden of proof lies on him/her .In the case of N.Jaylaxmi Ammal
vs.R. Gopal Pattar, Indian Supreme Court observed that “one not heard for 7 years is presumed to be
dead.’

Burden of proving such fact which is condition precedent to some other fact

Section 31 of the Evidence Act 2031 lays down that ,there are certain facts which are admissible on
proof of some other facts. Such as dying declaration is admissible as evidence only one proof that the
person making it , is dead. Certain facts are admissible as evidence. Under the Section 12 of the
evidence Act 2031 , only if the person making it is dead or can not be found etc. secondary evidence is
admissible , if it is public document or the original lost or destroyed. In all these cases the party trying
to prove the secondary fact must also prove the first fact as condition precedent.
rden of proof on prosecution, defendant and plaintiff

Burden of proof on prosecution:

Section 25 of Evidence Act 2031 lays down that in criminal cases the prosecution must bear burden of
proof to establish the guilt .He/she must prove it beyond the doubt. The accused need not prove
anything on his/her part to show his/her innocence. He/she may remain silent throughout the trial and
observe the case being proved against his/her on the strength of evidence. In case of any doubt and
he/she is entitled to acquittal. This is general rule.

Burden of proof on the plaintiff:

Section 26 of Evidence Act 2031 states that in civil case burden of proof lies on the plaintiff to establish
his/her claim. The court hears the defendant at the same party with plaintiff and adjudicates the case
on balance of probability.

Burden of proof on the defendant:

Section 27 of the Evidence Act 2031 lays down that in criminal cases the defendant puts forwards
his/her defense , if he/she chooses so, to show that he/she is innocent or he /she is not liable fully
for the consequence of charge made against him/her. Therefore , he/she may plead self-defense ,
accident or provocation in order to immune himself/herself from punishment or mitigate it as per the
merit of the case. If he/she does so the onus lies on him/her to prove it.

Similarly in civil cases the defendant must bear burden of proof if he/she wants the court to believe that
the liability attached to him/her has already been partly or fully discharge in favor of the plaintiff. In
other words it is know as adverse burden of proof.

Burden of proving specific fact

Section 28 of the Evidence Act 2031 says that if any law has laid down any such provision specifying
that certain facts are to be proved by the certain party in the given situation, the same holds good if
such situation does arise. Such as , in trafficking offence information given by the victim, the law has
placed onus of proof on the accused to show that the information was untruth. In Narcotic Drugs case
the person who is found in possession of such drug is presumed to be guilty the law has laid down
that onus of proof lies on him/her to show his/her innocence. Similarly in corruption charge if a
person is living at such standard , which is lawful income does not allow, the law has placed onus of
proof on him/her to show that the property earned by him/her was through lawful means. In other
cases the party making special plea must prove it on his/her own responsibility. Such as if any person
pleads defense of alibi, he /she must prove it by himself/herself.
Burden of proving fact which is in specific knowledge of the party

Section 30 of the Evidence Act 2031 states that , any fact which is specific knowledge of the party to the
litigation , it should be proved by the same party to the satisfaction of the court , for example , in a
charge for travelling train without ticket, the party claiming that he/she had a ticket at the given time ,
must prove it by himself/herself. It is a fact within special knowledge of him/her. This rule does not
cover facts like intention, motive even though they are within special knowledge of the party
concerned.