Introduction

Burden of Proof originated from a Latin maxim ‘semper necessitas probandi incumbit ei qui agit’
which means “the necessity of proof always lies with the person who lays charges”.

The Law of Evidence is a critical piece of legislature which supplements the Court’s
proceedings. Evidence is the material that establishes a claim or an assertion and enables the
“

Court to come to a just decision. Oral or documentary evidence should be produced before the
Court to prove or disapprove respective contentions of both parties. The rule of evidence requires
the respective parties to place the best evidence in hand to establish their assertion beyond the
reasonable doubt. The Law of Evidence is said to be the law of the forum or the Lex fori. When a
person is bound to prove the existence of any fact, it is said that the Burden of Proof lies on that
person. 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 laws relating to the Burden of Proof and its related rules are provided in the Indian Evidence
Act of 1872. These laws clearly state that until and unless an exception is established by the law,
the Burden of Proof will rest on the person who has asserted a face or is making any claim.
When a person has proven the existence of a fact then the Burden of proof lies on such a person.

In a criminal case, there are always two burdens. The first burden is on the prosecution to prove
at all cost against the defendant while the second burden lies with the defendant to bring about
convincing and sufficient evidence that will prove reasonable doubts surrounding the case of the
prosecution.

The term ‘Burden of Proof’ has not been defined in Evidence Act. It is a fundamental principle
of criminal jurisprudence that guilt of the accused is to be proved by the prosecution, and an
accused should be presumed to be innocent.

What is Burden of Proof?

The term ‘Burden of Proof’ has no where been defined under the Indian Evidence Act, 1872. The
Burden of Proof means the obligation to prove a fact. The strict meaning of the term Burden of
Proof(onus probandi) is this, that if no evidence is given by the party on whom the burden is
passed issue must be found against him. Burden of Proof is the responsibility to prove the fact in
a case. Each party must provide a fact that will either stand for or against the case.

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

1. Burden of Adduction(Production) of evidence

2. Burden of Plea or Persuasion

Burden of Adduction (Production) of evidence

In the sense of evidential burden, the term ‘Burden of proof’ refers to the obligation of a party to
a dispute to lead evidence to show his case. This is what is commonly referred to as ‘burden of
adduction (production) of evidence’ or ‘burden of going forward with evidence’, or simply as
‘evidential burden’. A party that bears evidential burden is required to point out and to present or
introduce enough evidence that help putting a matter in issue.

As Tapper observed, evidential burden is nothing but:

“the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue
as to the existence or non-existence of a fact in issue, due regard being had to the standard of
proof demanded of the party under such obligation”

A party upon whom such an obligation is imposed is not required to prove something thereby
convincing decision-makers as to the truthfulness of his side of the story in respect of that issue
for which he bears evidential burden. In other words, evidential burdens do not envisage an
obligation of proving. In some exceptional circumstances provided by law, the prosecutor maybe
partly relieved of this burden for some incidental or circumstantial matters in the charge. This
occurs in cases where the accused, unlike the prosecutor, is in a better position to produce some
form of evidence that is within his personal knowledge or within his reach. This is more
appropriately referred to as easing of the evidential burden of the prosecutor.
Burden of Plea or Persuasion

Burden of Plea or Persuasion is the obligation of a party to persuade the existence or non-
existence of a disputed matter of fact to the satisfaction of judges with the necessary amount and
quality of evidence and/or other probative devices.

According to Tapper, it denotes:

“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.

Principles of Burden of Proof

i. Onus Probandi

It means Burden of Proof. Generally a party who alleges affirmative has to prove it.

ii. Factum Probans

It is proving the fact

Difference between Burden of proof and Onus of Proof

Buren of Proof lies on the person who has to prove a fact and it never shifts, but onus (burden) of
proof shifts. It is shifting from shoulder to shoulder. Such a shifting is continuous process in the
evaluation of evidence.

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:

a. Those who affirms a fact, and

b. 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 Kaidalwar2 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

According to section 102,

“The Burden of Proof in a suit or proceeding lies on that person who would fail if no evidence at
all were given on either side”

In other words, in a case brought before the court, the Burden of Proof lies on the person who
has the tendency to fail if no evidence is supplied before the court from either of the parties. This
section tries to locate the party on which the burden of proof lies. It says that the burden shall lie
on the party which fails if no evidence were given from either side. Hence, this section focuses
on the evidential burden or the ‘onus of proof’ while section 101 deals with the legal burden or
the burden of proof relating to law of procedure.

Examples:

1
AIR 1996 SC 755
2
AIR 1981 SC 1186
  If A takes B to court following a family feud because of a land which B is in possession
and A asserts that it was left to A following a will made by C, who was the father of B. if
neither A or B presents any evidence, then B will retain the property.
 In a case where A sues B for money resulting from a bond, both parties have agreed to
the execution of the bond, but b disagrees that it was contracted by fraud which A
disagrees. If no party can establish an evidence, the A would win as the bond had been
contracted but the case of fraud cannot be proved. In that case, the burden of proof rests
on B.

in the above example, there was no legal burden to prove that the bond was genuine but it was
obtained by fraud, an evidential burden (or onus), was on B, who asserted it.

In the case of Triro v. Dev Raj3, because of the delay in constructing the suit, the defendant had
prayed the court over a limitation period. The position of the plaintiff was to know the reason for
the delay and the burden of proving if the case was within the given period was on the plaintiff.

SECTION 103(Burden of Proof as to particular fact)

According to section 103 of the act,

“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”

This section states that the burden of proof, regarding any particular fact, shall lie on that person
who wants the court to believe in its existence, unless, the law requires some particular person to
prove that fact. This section broadly lays down that whoever assrets something in a court, has to
prove it.

Example

3
AIR 1993 J&K 14
  If A sues B for theft, and desires the court to accept that B admitted to committing the
theft to C. A must prove that fact and if B denies it, B must prove it.

The principle of section 103 is that whenever a party wishes the court to believe and act upon the
existence of the fact, burden lies upon him to prove that fact. If the party wishes to the court to
believe that his opponent has admitted a fact, the burden lies upon him to prove that fact of
admission.

The principle of this section states that once a party desires the court to accept and act based on
the existence of a fact, he must prove that fact. This principle is called ‘rule of convenience of
the burden of proof’ and is contained in section 104, 113, 113a and 114a.

SECTION 104 (Burden of Proving the fact to be proved to make evidence admissible)

The burden of proving any fact necessary to be proved inorder to enable any person to give
evidence of any other fact is on the person who wishes to give such evidence.

Example

 If A desires to prove the declaration of death by B, A must prove that B is dead.

B intends to prove by secondary evidence, the contents of lost document.
A must prove that the document cannot be found. This section provides the proof of a
fact for which evidence can be admitted where such admission is based on the fact of
which the party proves which must be in tandem with the admissibility.

Section 104 provides, the proof of fact on which evidence becomes admissible, where the
admissibility depends upon the proof of burden of another fact the party who wants to
prove the fact on which admissibility depends.

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, (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.

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, 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.

This section only applies to criminal cases. 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 Maharashtra4a 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.

In Dayabhai v. State of Gujarat5, 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 specially within Knowledge)

4
AIR 1962 SC 605
5
AIR 1964 SC 1563
When any fact is specially within the knowledge of any person, the burden of proving that fact is
upon him.

Example

 The burden of proving a fact is on a person who commits an act with the intention which
is different from the circumstances that the act suggests. On an occasion that A is charged
on boarding a train without a ticket, the burden of proving such fact is on A.

It states if any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him. The principle behind this section is an application of the Latin maxim ‘Res ipsa
loquitor’

In the case of Eshwaraiah v. State of Karnataka 6 it was 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.

SECTION 107 (Burden of proving death of person known to have been alive within thirty
years)

According to section 107,

“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.”

This section lays sown a presumption that a man would be considered alive, upto thirty years,
after he was last seen or heard of. This shall be presumed if the question in issue is whether a
man is alive or dead and the burden of proving that the man is dead is on the person affirming it.

SECTION 108 (Burdden of proving that person alive who has not been heard of seven
years)

According to section 108,

6
AIR 1994 SC 997
“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 had he been
alive, the burden of proving that he is alive shifted to the person who affirms it”

This section states that if a person who has disappeared and had been unheard of for seven years
by those who would naturally have heard of him if he were alive, that person would be presumed
to be dead. This presumption arises when a question of him being alive or dead arises in the
court. Hence, if the court adopts the presumption, the party who claims that the person is alive
had to prove it. It is a simple presumption of death and not the time of death.

In the case of Chard v. Chard7, a man got married in 1909. He last heard of his wife in 1917 and
remarried in 1933, and subsequently filed a petition for a declaration that the marriage of 1933
was a nullity. The court held that the presumption of her death was not proven as any evidence of
the condition of her health or those, who would have naturally heard of her, were not given and
therefore, the marriage of 1933 was a nullity.

SECTION 109 (burden of proof as to relationship in the case of partner, landlord and
tenant, principal and agent)

According to section 109 of the act,

“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”

When a wuestion arises as to whether certain persons are partners, landlord and tenant or
principal and agent and it has been shown that hey have been acting as such; the court presumes
them to be related. If a person denies the relationship or affirms that the same has been ceased,
the burden of proof to prove that they were never related or have ceased to relate lies on him.
Hence, the court presumes the existing status quo or in the continuity of things.

7
[1956] P259
SECTION 110(Burden of proof as to ownership)

According to section 110 of the act,

“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”

The section simply states that if the question is whether a person is the 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 affirming that he is not the owner.

SECTION 111 (Proof of good faith in transaction where one party is in relation of active
confidence)

According to section 111 of the Act,

“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.”

This section sates that of a person enjoys the active confidence of the other, he must act in good
faith to the other and the burden lies upon him to prove that he did act in good faith.

Example

 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 who has come of age to a father is in question in a suit
bright by the son. The burden of proving the good faith of the transaction is on the father.

SECTION 111A (Amendmend 1984)-Presumption as to Burden of Proof

This section makes the court that a person is liable for disturbing public order and pece of an area
declared to be a disturbed area if he has been guilty of certain offence in the past. Other than the
offences included this includes criminal conspiracy or attempt to commit or their abatement.
They include sections 121, 121A, 122 and 123 of the Indian Penal Code.

SECTION 112 (Birth during marriage, conclusive proof of legitimacy)

This section deals with the legitimacy of a child. Section 112 of the Evidence Act and is based
on the maxim ‘pater est quem numtioe demonstrant’ meaning thereby “the father is he, whom
the nuptials indicate”. The essentials of this section are:

 The child should have been born during the continuance of valid marriage or within 20
days of a dissolved marriage, the mother remaining unmarried.
 The parties to the marriage should have had access to each other.

The presumption of legitimacy of child depends upon effective access between the mother and
the father. The parties to the marriage have had access to each other when the child was
conceived. But, “access and non-access cannot have existence and non-existence of opportunity
for marital intercourse”. Non-access can be proved by evidence direct or circumstantial though
the proof of non-access must be clear and satisfactory as the presumption of legitimacy is high
favoured by the law.

In the case of Teeku Dutta v. State8, the Delhi High Court held that no party could be subjected
to a scientific test (such as DNA) without his consent, just because the other party asked for it.
This would infringe the right to privacy of that other party. Only in deserving cases can such a
direction be given.

SECTION 113 (Proof of cessation of territory)

8
AIR 2004 Delhi 205
It says that a government notification as to cessation of territory to nay other state is a conclusive
proof of that act. The said cessation should have taken place before the commencement of
Government of India Act, 1935.

SECTION 113A (Presumption as to abatement of suicide by a married women)

Presumptions are of compulsory nature as they are of reasonable nature and help in giving
directions to the case and avoiding unnecessary matters. They are of two types: rebuttable and
irrebuttable. Rebuttable presumptions can be overthrown by evidence while irrebuttable ones are
conclusive.

This section is a presumption as to abetment of suicide by a married woman. To attract the

presumption, the following conditions have to be met:

 The question before the court should be whether the commission of suicide by a married
women as the result of abetment by her husband or relatives.
 The suicide must have been committed within 7 years from the date of marriage
 Evidence as to show that her husband or his relatives subjected her to cruelty.

If the three conditions are met, the court presumes that the husband or his relatives abetted her
suicide and then the burden to prove that suicide was her own personal choice lies on the
husband or relatives.

SECTION 113B(Presumption as to dowry death)

Section 304B of the Indian Penal Code defines the dowry death and this section deals with the
presumptions as to dowry death. If the ingredients of section 304B of the IPC are met, the onus
gets transferred to the accused to rebut the presumption. The term ‘soon before’ used in section
113B of the evidence law means that there should be a proximate link between acts of cruelty or
harassment and death. There can be no laid down formula to establish suc ha link and te court
should consider facts of each case separately.
SECTION 114 (Court may presume existence of certain facts)

This section states that the court may presume the existence of certain facts, regard to the
common course of natural events, human conduct, public and private business as the ystand
related to those facts of the case

Example

 Unexplained possession of the recently stolen property has been held to create a
presumption of guilt. In the case of Mohanlal v. Ajit Singh9, a case of murder and
robbery, a gold ring along with handkerchief and currency notes were recovered, at the
suggestion of the accused and they all bore his fingerprints. The court held that it was not
merely a proof of robbery but a presumptive evidence of the charge of murder as well.
 In the case of Chito Mahtoo v. Lila Mahtoo10 it was held that if a property is shown to be
ancestral, it shall be presumed to be so until the contrary is provided. It shall assume
continuity of things unless the contrary is provided.

SECTION 114A (Presumption as to absence of consent in certain persecution of rape)

In a prosecution for rape subject to section 376 of Indian penal Code, where sexual intercourse is
proved against the accused, if the woman asserts that it was non-consensual sex, the court will
honor the claims of the woman.

In the case of Nawab Khan v. State11the court held that the person with which the sexual
intercourse is committed tells the court that it was non-consensual sex, then the court will assume
there was no consent. If the accused claims that there was consent, then the burden of proof lies
with the accused.

9
AIR 1978 SC 1183
10
AIR 1991 Pat 186
11
1990 CriLJ 1179
CONCLUSION

The rule governing the burden of proof is that whoever lays claim must present evidence or
proof. This rule is subject to the principles that the burden of proof rests on the party that either
asserts a claim or denies it. This implies that whoever brings a case against another to the court
must prove the fact he claims. In criminal cases, the burden of proof on defendants is based on
”

the evidence that is established before the court which states the fact that he committed the crime
as adduced. An accused can only be presumed guilty based on the facts established by the
plaintiff to the court in accordance with the burden of proof that rules the case.