Burden of Proof

Introduction
The Burden of Proof is a legal concept that states the responsibility of proving a claim lies with
the person making the accusation. In court proceedings, evidence is presented to support or
refute claims, and the best available evidence must be provided.

The Burden of Proof is determined by the Indian Evidence Act of 1872, which states that the
person asserting a fact or making a claim has the burden of proof unless an exception is
established by law. In criminal cases, both the prosecution and the defendant have burdens of
proof.

The prosecution must prove the guilt of the accused, while the defendant must provide
convincing evidence to raise reasonable doubts. It is important to note that the term "Burden
of Proof" is not specifically defined in the Evidence Act, but it is a fundamental principle of
criminal jurisprudence that the accused is presumed innocent until proven guilty by the
prosecution.

What is Burden of proof ?

The Burden of Proof refers to the obligation to prove a fact. In legal proceedings, it has two
meanings: the burden of adduction of evidence and the burden of plea or persuasion.

The burden of adduction of evidence is the obligation of a party to present enough evidence to
support their case. It does not require proving the truthfulness of their side of the story. There
are exceptional circumstances where the prosecutor may be relieved of this burden for certain
matters. This is known as easing the evidential burden of the prosecutor.

According to Phipson, as applied to judicial proceedings, the phrase “Burden of Proof” has two
distinct and frequently confused menaings-

 Burden of Adduction(Production) of evidence

 Burden of Plea or Persuasion

Burden of Adduction(Production)
 The term "burden of proof" refers to the responsibility of one party in a dispute to
provide evidence to support their case. This is also known as the "burden of adduction
(production) of evidence" or "evidential burden."
The party with this obligation must present enough evidence to raise an issue regarding
the existence or non-existence of a fact, but they are not required to prove it beyond a
doubt.
In some cases, the accused may be partially relieved of this burden if they have access
to evidence that is within their personal knowledge or reach. This is known as an "easing
of the evidential burden" for the prosecutor.

Burden of Plea or Persuasion

The obligation of a party to meet the requirement that a fact in issue be proved (or
disproved) either by a preponderance of the evidence (in civil cases) or beyond
reasonable doubt (in criminal cases).
This is the true Burden of proof that determines which party in a proceeding is
responsible to prove or disprove a particular fact(s) in issue under risk of losing on an
issue or on the whole of the case, as the case may be.
It is this burden that determines which party is under an obligation to lead evidence of a
particular fact and convince the court thereof; it is this burden that mainly determines
the party who will lose if the court is not satisfied that the fact has been proved. This
Burden of Proof is also referred to as legal (persuasive) burden, or probative burden, or
risk of non-persuasion, and it fixes the party that loses on an issue of fact or on the
whole of the case.

In Indian Evidence Act, 1872 from Section 101 to Sections 114 talks about the Burden of
Proof and section 101, 102, 103 provides the standard laws that governs the Burden of
Proof

SECTION 101
According to section 101 of the Evidence Act,“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.”

From the point of view of the Burden of Proof, facts can be placed in two categories:
  Those who affirms a fact, and
 Those who deny it

According to section 101 of the Indian evidence Act, 1972, 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.

When a person is bound to prove the existence of any fact, it is said that the Burden of Proof
lies on that person.

Examples: In a case in which a person A desires the court to offer judgment on person B
following a crime committed, A must prove that B has committed the said crime.

A has prayed to the court to give judgment that he is to own a certain land which presently is
possessed by B, based on the facts he presented, which B has denied. In this case, A must prove
those facts to be true.

In the case of Jarnail v. State of Punjab1 the Supreme Court Held that in all criminal
cases, the responsibility of proving of the accused has committed the crime beyond all
reasonable doubt rests on the prosecution and if it fails to establish concrete evidence
to shed off the burden, it cannot depend on the evidence brought by the accused on
defense in the case. The prosecution does not rely on the evidence of the accused to
convict the defendant.

It was observed by the Supreme Court tin the case of State of Maharashtra v. Vasudeo
Ramchandra Kaidalwar that the expression ‘Burden of Proof’ has two meanings, legal
burden and evidential burden. In criminal trial, the accused is considered to be innocent
until proven guilty and the prosecution carries the burden of proving 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
1
AIR 1996 SC 755
 The burden of proof in a case lies on the person who would fail if no evidence were
given. This section focuses on the evidential burden or the ‘onus of proof’ while section
101 deals with the legal burden.
Examples: include a family feud and a case where no party can establish an evidence.
In the case of Triro v. Dev Raj, 2 3the plaintiff had the burden of proving if the case was
within the given period.

SECTION 103
Section 103 of the act states that the burden of proof for any fact lies on the person
who wants the court to believe in it, unless there is a law requiring it. This means that
whoever assents to something has to prove it in court.
For example, if A sues B for theft, A must prove that B admitted to committing it to C. If
B denies it, B must prove it. The principle of this section is called the rule of convenience
and is contained in sections 104, 113, 113a and 114a.
If a party wishes to believe and act upon a fact, they must prove its existence. If an
opponent admits a fact to the court, the burden lies upon them to prove that fact.
SECTION 104
Paragraph 104 of the legal code states that the person who wishes to give evidence of a
fact must prove any necessary fact to enable such evidence.
For example, if A wishes to prove B's death, A must first prove that B is actually
deceased. Similarly, if B wishes to prove the contents of a lost document through
secondary evidence, A must first prove that the document cannot be found.
This section provides the necessary proof for the admissibility of evidence, where the
admissibility depends on the proof of another fact. The burden of proving such facts lies
on the party who wishes to prove the admissibility.

SECTION 105
(Burden of proving that case of accused comes within exceptions) Section 105 says that
when a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General
Exceptions in the Indian Penal Code, , or within any special exception or proviso
contained in any other part of the same Code, or in any law defining the offence, is upon
him, and the court will presume the absence of such circumstances.
Example A, accused of murder, alleges that, by reason of unsoundness of mind, he did
not know the nature of the act. The burden of proof is on A. A, accused of murder,

2
AIR 1981 SC 1186

3
AIR 1993 J&K 14
 alleges that by grave and sudden provocation, he was deprived of the power of self-
control. The burden of proof is on A.thus, this section proves that the burden of proving
lies on the accused if the claims on each case come under the acceptable exception.
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
general principles requires the Court to presume innocence of the accused until proven
otherwise and it is upon the prosecution to establish the guilt of the accused. Once the
guilt is established, the onus shifts to the accused who can take the defence of general
exception in IPC.

In the leading case of KM Nanavati v. State of Maharashtraa4 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
. State of Gujarat,5 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 th eprosection.
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:
Burden of proving fact especially within knowledge—When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.

Section 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.

Section 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

4
AIR 1962 SC 605

5
AIR 1964 SC 1563
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.

Section 109:
Burden of proof as to relationship in the cases 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.

Section 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.

Section 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.

Section 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.

Section 113:
Proof of cession of territory—A notification in the Official Gazette that any portion of
British territory has before the commencement of Part III of the Government of India
Act, 1935 (26 Geo. 5 ch. 2) been ceded 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.

Section 113-A: Presumption as to abetment of suicide by a married woman—

When the question is whether the commission of suicide by a woman 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 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.

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).

Section 113-B: Presumption as to dowry death—

When the question is whether a person has committed the dowry death of a woman
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 304-B of Indian Penal Code (45 of 1860).

Section 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.