Burden Of Proof

Burden of Proof
• 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.
• When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person
• E.g. 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.
On whom Burden of Proof Lies
• It lies on that person who would fail if no evidence at all were given on
either side.
• E.g. A sues B for 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 ….
• E.g. 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…..
Burden of proof as to particular fact
• It 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.
• E.g. B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it.
• E.g. A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission.
Burden of proving fact to be proved to make
evidence admissible.
• It is on the person who wishes to give such evidence.
• E.g. A wishes to prove a dying declaration by B. A must prove B’s
death.
• (b) A wishes to prove, by secondary evidence, the contents of a lost
document. A must prove that the document has been lost
Burden of proving that case of accused comes
within exceptions
• When person accused of an offence
• the burden of proving the existence of circumstances bringing the
case within
• any of the General Exceptions in the Indian Penal Code (45 of 1860),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.
• E.g. 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.
• Grave and sudden Provocation
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.
• E.g. A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
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.
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.
• Presumption is of death and not of the time of death
• Mohammad Sharif vs. Bande Ali(ILR(1911)34ALL36
• Mortgaged property, disappeared, heirs, file for the redemption of property
as not heard of for 18 years, the presumption can be of death, not of the time
of death.
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.
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.
• It applied to both movable and immovable property
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.
• E.g. 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
• 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
Standard of Proof for Burden of Proof
• Civil cases: preponderance of probability
• Criminal Cases: Beyond reasonable doubt

• Standard of proof for reverse Burden of Proof

• Preponderance of probability
• Probability version throws doubt on the prosecution’s case
• Hence Prosecution fails to prove guilt beyond reasonable doubt
 PRESUMPTION OF INNOCENCE
• The fundamental principle of criminal law jurisprudence states that an accused
person is presumed innocent until proven guilty. This assumption can be considered
a holdover from a long-gone era.
• No direct mention in ordinary statutes and constitution
• Sir James Stephen, digest on law of evidence, art 94, presumption of innocence:
“If the commission of a crime is directly in issue in any action, criminal or civil, it
must be proved beyond a reasonable doubt. The burden is on the person who asserts it.
• In modern legal times it was Woolmington v DPP (1935), which solidified this
doctrine.
the House of Lords asserted, “throughout the tapestry of the English Criminal Law
one golden thread is always to be found; the essential precept of presumption, the
innocence of the accused”.
Judicial pronouncements

• Harendra Sarkar v. state of assam , AIR 2008 SC 2467

Presumption of innocence is a HR
• Ghurey lal v. state of Uttar Pradesh, 2008AIR SCW6598
Acquittal by trial court, appellate court disturb the acquittal only for
very substantial and compelling reasons. Acquittal by trial court creates
in fact a double presumption as the presumption of innocence
reinforced, reaffirmed and strengthened by the acquittal.
DILUTION OF THE INNOCENCE
PRESUMPTION BY REVERSE ONUS

• Reverse Onus clauses or Reverse Burden of Evidence have emerged as

an exception to presumption of innocence. Such provisions replace the
“golden thread of criminal law” with presumption of guilt, based on
public policy.
• Reverse burdens presuppose guilt. Yet presumption’s extinguishment
relies on its nature. It determines the quality of evidence needed to
disprove guilt.
 RECONCILIATION OF THE PRESUMPTION OF
INNOCENCE WITH REVERSE ONUS CLAUSES FROM A
HUMAN RIGHTS LENS

• PRESUMPTION OF INNOCENCE AND HUMAN RIGHTS

3. Universal Human Right
 Article 11 of the Universal Declaration of Human Rights states that,
“Everyone charged with a criminal crime has the right to be assumed innocent unless proved guilty
according to law in a public trial at which he has had all the protections essential for his defence.”
 “Everyone accused with a criminal crime must have the right to be assumed innocent unless
proved guilty according to law,” reads Article 14 of ICCPR.
 “Everyone charged with a criminal offence should be deemed innocent unless proved guilty
according to law,” states Article 6(2) of the European Convention on Human Rights.
 According to Article 66 of the ICC Rome statute
“1. Everyone must be assumed innocent unless proved guilty before the Court in conformity with
the applicable law. 2. Prosecutors must establish guilt. 3. The Court must be convinced of the
accused’s guilt beyond reasonable doubt to convict.”
• JUSTIFICATION FOR REVERSE ONUS CLAUSES

1. Special Knowledge held by the accused. (Section 106 IEA)

2. Gravity of Offence
3. Extent of Difficulty in Proving
4. Acquittals caused due to “Benefit of Doubt”
5. Deterrence
 Judicial Trend regarding Reverse Onus
• However harsh the statute, the prosecution must not prove guilt by preponderance
of probability. Neither graveness of offence nor stringency would impair the fair
trial guarantees of accused and the compromise in burden of proof clauses, call for
the state to scrutinise evidence for establishing preliminary facts.

[Gangadhar alias Gangaram v. State of Madhya Pradesh, SC 2020]

• In the landmark case of Noor Aga v. State of Punjab 2008, the apex court held that
the standard of proof required to prove the guilt of the accused on the prosecution
is beyond all reasonable doubt, but it is preponderance of probability on the
accused. If the prosecution fails to prove the foundational facts to satisfy Section
35 of the Act, the actus reus—possession of contraband by the accused—cannot
be proven.
• Statutory reverse burdens do not relieve the prosecution of its need to
prove foundational facts supporting the accusation. Raju Roy clarified
the starting point of statutory reverse burdens. It applies only when the
prosecution completes its primary task. [Raju Roy v. State of West
Bengal, Calcutta HC 2021]

• Section 29 of POCSO has no direct application. Medical evidence

professing to prove the rape is just corroborative evidence, and
adducing only that will not shift the duty to the accused to disprove
charges. [Sitaram Das v. State of West Bengal, Calcutta HC 2020]
• The threshold of proof for rebutting presumptions of guilt is lower
than that for proving guilt. The defence need only show prosecution
flaws.[Prakash v. State, Madras HC 2016]
• The presumption of innocence principle and the reverse onus provisions is
nothing less than a dichotomy between the crime control model and the due
process model of criminal administration.
• It is not possible to make the elimination of all reverse onus provisions the
standard practise. This would be extremely harmful to the prosecution's case.
• Before the prosecution can shift the burden of proof to the accused, there needs
to be a certain minimum threshold level of facts that have been proven to the
court's satisfaction by the prosecution.
• The legal function is extremely like to that of any other trial, with the sole
distinction being that a legislation expressly mandates proof of certain facts from
the defence due to the severity of the crime and the degree to which it is
difficult to show.
• The goal should be to achieve a state in which the presumption of innocence and
the reverse onus can coexist in an amicable manner.
THANK YOU