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LAW OF EVIDENCE

BURDEN OF PROOF UNDER


INDIAN EVIDENCE ACT, 1872

PRESENTED BY:
VISHAKA PUNDEER
13LLBO27

INTRODUCTION
The burden of proof means the obligation to proof a fact.
The strict meaning of the term burden of proof (onus
probandi) is that if no evidence is given by the party on whom
the burden is passed the issue must be found against him.
The word burden of proof has not been defined under the
Indian Evidence Act.
In criminal cases it is accepted principle of criminal
jurisprudence that the burden of proof is always on
prosecution.

RELEVANT PROVISIONS UNDER THE EVIDENCE ACT


SECTION 101- BURDEN OF PROOF:
Whoever desires any court to give judgment as to any legal rights or
liability dependent on the existence of the facts which he asserts,
must prove that those fact 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.
This section describes burden of proof in the sense of proving a
case.

This section lays down that whoever wants a court to give


judgment in his favor on the existence of some fact, must prove
the existence of those facts.
In CHAMPALAL v. THAKURJI GOPALJI
The suit property alleged to be public trust by defendant.
Plaintiff not admitting above fact in the entire proceeding .
Facts asserted by defendant and denied by the plaintiff.
Here, the burden of proof lies on the defendant.

SECTION 102- ON WHOM BURDEN OF PROOF LIES:


The burden of proof lies on that person who would fail if
evidence at all were given on either side.
This section deals with burden of proof in the sense of
adducing evidence.
It lays down that the burden of adducing evidence rests upon
the party who would fail if no evidence at all, or no more
evidence, as the case may be, were adduced by either side.

SECTION 103-BURDEN OF PROOF AS TO PARTICULAR


FACT:
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.
The difference between section 101 and 103 is that in the
former section a party has to prove all the fact which he
alleges while the latter section provides for the proof of one
particular fact and not whole of the facts.

SECTION 104- BURDEN OF PROVING FACT TO BE PROVED TO


MAKE EVIDENCE ADMISSIBLE:

The burden of proving any fact necessary to be proved in order


to enable any person to give evidence of any other fact is on
the person who wishes to give such evidence.
For example;
A wishes to prove the dying declaration by B. A must prove
Bs death.
A wishes to prove, by secondary evidence, the contents of a
lost document. A must prove that the document has been lost.

SECTION 105- BURDEN OF PROVING THAT CASE OF ACCUSED


COMES WITHIN EXCEPTIONS

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 IPC 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 shall presume the
absence of such circumstances.
This section is an extension to the general rule that in criminal

trial, the burden of proving every thing essential to establishment


of the charge against the accused.

The meaning of this section is that it is not for the prosecution to


examine all possible defenses which might be put forward on behalf
of the accused person and to prove that none of them applies.
In BINDRA v. EMPEROR
The SC held that the burden of proof in criminal trial remains at all
times on the prosecution and it is only shifted upon the accused in
so far as an accused person may set up existence of circumstances
bringing his case within any exception under IPC or any other law.

SECTION106-BURDEN

OF

PROVING

FACTS

ESPECIALLY WITHIN KNOWLEDGE


When any act is especially within the knowledge of any person, the
burden of proving that fact is upon him.
This section lays down that where the subject matter of the

allegation lies peculiarly within the knowledge of the party, that


party must prove it.
In NILAMBIA v. STATE
A postman was accused of misappropriation of money order.
The accused admitted that the money was not paid to the payee

but

alleged that he gave the money order form to a boy at the


payees house.
The court held that the fact as to who the boy was specially
within the knowledge of the accused and the burden was on
him to establish the fact which was specially in his knowledge.

SECTION 107- BURDEN OF PROVING DEATH OF A PERSON


KNOWN TO HAVE BEEN ALIVE WITHIN THIRTY DAYS

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.
If a person is proved to have been living within thirty days it
shall be presumed that he is alive and the burden of proving
he is dead lies upon the person who affirms that he is dead.

SECTION 108- BURDEN OF PROVING THAT PERSON IS


ALIVE 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.

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
280 days after his 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.
In SHYAM LAL v. SANJEEV KUMAR

The plaintiff and the defendant , were born to Smt.Durga


during continuance of her valid marriage with the deceased,
Balak Ram.
There was no evidence on record that the deceased at any
point of time did not have access to her.

It was held that there was strong presumption about the


legitimacy of children.

SECTION 113-B-Presumption as to dowry death


When the question is whether a person had committed the
dowry death of a woman and it is shown that soon before her
death such 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.

In Tarsem Singh v. State of Punjab


The Supreme court held that presumption under Section 113B is one of law. The presumption will be raised only on the
proof Of following essential The question before the court must be whether the accused
has committed the dowry death of a woman. (This means that
the presumption can be raised only if the accused is being
tried for the offence under Section 304-B, I.P.C)

The woman was subjected to cruelty or harassment by her


husband or his relatives.
Such cruelty or harassment was for or in connection with, any
demand for dowry.
Such cruelty or harassment was soon before her death

SECTION 114- Court may presume existence of certain


facts.
Example:
A, a person of the highest character, is tried for causing a
mans death by an act of negligence in arranging certain
machinery. B, a person of equally good character, who also
took part in the arrangement describes precisely what was
done, and admits and explains the common carelessness of A
and himself.

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