Table of Contents

1. Introduction

2. What is Burden of Proof?

3. Principles of burden of proof

4. Difference between Burden and Onus

5. Exception

6. Specific Rule

7. Presumptions

8. Application of Burden of proof in India

9. Conclusion

10. Bibliography
Introduction

The laws relating to the Burden of Proof and its related rules are as provided in the Indian
Evidence Act of 1872. This law clearly states that until and unless an exception is established
by law, the burden of proof will rest on the person who has asserted a fact or is making any
claim. When a person has proven the existence of a fact then the burden of proof belongs to
such a fellow.

In the 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.

This project will elucidate on the aspects of Burden of Proof as contained in section 101 of
the Indian Evidence Act, 1872.
What is Burden of Proof?

The expression “burden of proof” is defined in section 101 in these words:

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 question is which out of the two parties has to prove a fact. The answer to this question
decides the question as to burden of proof. The burden of proof means the obligation to prove
a fact. Every party has to establish facts which go in his favour or against his opponent. And
this is the burden of proof. The act lays down some principles of general nature.

The burden of proof is used to explain two major facts or burdens. The first is the Burden of
production of the burden of “going forward with the evidence” and the burden of plea or
persuasion.

The burden of plea or persuasion is the responsibility that rests on the single party through the
period of the court sittings. The party carrying the burden can only succeed in its claims once
it has absolutely satisfied the “tier of fact”.

For one to be presumed innocent in the court of law over a criminal case, the prosecution is
faced with the burden to prove elements of the offence and disprove all defenses excluding
defences with affirmation which constitutionally are not required in the prosecution of the
case.

The evidential burden should not be confused with the burden of persuasion. Evidential
Burden can change hands between parties during the court proceedings. The evidential
burden is only raised to provide enough evidence against a case in the court.
Principles of Burden of Proof

The underlining of the burden of proof is contained in the concept of Onus probandi and
Factum probans. In this explanation, Onus (burden) is the liability and obligation to prove a
fact which can shift between parties in the case. Section 101, 102 and 103 of the Indian
Evidence Act provides the standard laws that govern the burden of proof.

Section 101 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 he burden of proof
lies on that person.
 
Illustrations
 
(a) 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.
 
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of
B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts.
  Initial burden on one who takes affirmative of the issue –

The facts which have to be proved in a case can, from the point of view of burden of
proof, be put in two categories, namely, those which positively affirm a fact and those
which deny it. The first general principle is that a party who asserts the affirmative of
an issue, the burden of proof lies on him to prove that fact. The reason for the rule is
that it is easy to prove the affirmative than to prove the negative.

The principle of the section is that a party who wishes the court to believe in the
existence of a fact and to pass a judgement on the basis of it should have to prove that
fact.

 Burden and onus-

The illustration appended to the section show that the provision is intended to apply to
civil as well as criminal cases. Explaining the true function of the question of onus in
civil cases, Viscount DUNEDIN said in Robins v. National Trust Co.:1 “Onus is
always on a person who asserts a proposition requires no proof. The onus is not on the
person making the assertion, because it is self-evident that he had been born. But to
assert that he was born on a certain date, if the date is material requires proof: the
onus is on the person making the assertion. Now, in conducting any inquiry, the
determining tribunal will often find that onus is sometimes on the side of one
contending party, sometimes on the side of the other, or , as it is often expressed, that
in certain circumstances onus shifts.”

1
(1927) A.C. 505 at p. 510 (P.C)
Difference between burden and onus –

The distinction between burden and onus has exemplified by the Gujarat High Court. “There
is an essential distinction between “burden of proof” and “onus of proof”; burden of proof
lies on the person who has to prove a fact and it never shifts, but the onus of proof shifts.
Such a shifting of onus is continuous process in the evaluation of evidence. Burden of proof
has two distinct meanings, namely,

(i) the burden of proof as a matter of law and pleadings, and

(ii) burden of proof as a matter of adducing evidence.”

Section 101 deals with the former and Sec. 102 with the latter.

In a matter arising out of the Prevention of Corruption Act, the Supreme Court again
emphasized: “The expression ‘burden of proof’ has two distinct meanings: (1) the legal
burden, i.e., burden of establishing the gift, and (2) the evidential burden, i.e., the burden of
leading evidence.

The presumption of innocence of the accused means nothing more than this that burden lies
on the prosecution to prove the case beyond reasonable doubt. Once the prosecution has
satisfied the court of the fact that the accused committed the crime of which he is charged, the
onus is shifted to the accused to show as to why he should not be punished for it.

Section 102 On whom burden of proof lies - 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.

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 shall fail 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 or procedure.

The illustration (b) to the section makes it clearer: ‘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 B.

In the above illustration, there was no legal burden to prove that the bond was genuine but it
is obtained by fraud, an evidential burden (or onus), was on B, who asserted it.
In a case between Triro and Dev Raj2 Because of the delay in constructing the suit, the
defendant had prayed the court over a limitation of the period. The position of the plaintiff
was to know the cause of 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- 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 principle of the section is that whenever a party wishes the court to believe and to act
upon the existence of a fact, burden of proof lies upon him to prove that fact. If a party
wishes the court to believe that his opponent has admitted a fact, burden of proof lies upon
him to prove the fact of admission. The principle will not be affected by the fact whether the
particular fact in question is affirmative or negative.

The following passage from the judgment of BOWEN, L.J is particularly important:
Whenever litigation exists somebody must go on with it; the plaintiff is the first to begin; if
he does nothing he fails; if he makes prima facie case and nothing is done to answer it, the
defendant fails. The test, therefore, as to the burden of proof or onus of proof is simply : to
ask oneself which party will be successful if no evidence is given, or if no more evidence is
given than has been given at a particular point of the case, for it is obvious that as the
controversy involved in the litigation travels on the parties from moment to moment may
reach points at which the onus of proof shifts, and at which the tribunal would have to say
that if the case stops there, it must be decided in a particular manner.

Section 104 Burden of proving fact to be proved to make evidences 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.

This section states that when the admissibility of one fact depends on another fact, the party
who wants to admit such fact must prove the other fact on which admissibility depends. Thus
if ‘A’ wishes to prove a dying declaration by ‘B.’ A must prove B’s death. Similarly, if a
party wants to offer the secondary evidence of a document he must prove that the original has
been lost or destroyed or that the case is within any of the exceptions in which secondary
evidence can be given.

2
AIR 1993 J&k 14
Exception

Section 105 Burden of proving that case of accused comes within exception - When a
person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the General Exception 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.

Section 105, of the Indian Evidence Act deals with the burden of proof it lays down two
broad principles:

a) The accused must prove the existence of circumstances which bring the case under general
exceptions.

b) The court shall presume the absence of such circumstances unless they are proved.

When an accused claims the benefit of the General Exception clauses of IPC, (for e.g. Self-
defence, Insanity, Infancy etc. i.e. from article 76 to article 106) the burden of proving that he
is entitled to such benefit is upon him. For example, if an accused claims the benefit of
insanity in a murder trial, it is up to the accused to prove that he was insane at the time of
committing the crime.

A parallel case was before the Supreme Court in K.M. Nanavati v. State of Maharashtra3,
with only this difference that it was not the wife who was killed but the wife’s paramour.
Nanavati, the naval officer, was prosecuted for the same. His wife confessed of the
relationship. He went to Ahuja finding him in his home, a scuffle followed, in the course of it
two shots from his service revolver went off accidently resulting in Ahuja’s death. Here, SC
held that there is a presumption of innocence in favour of the accused as a general rule and it
is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when
an accused relies upon the general exception or proviso contained in any other part of the
Penal Code, Section 105 of the Evidence Act raises a presumption against the accused and
also throws a burden on him to rebut the said presumption. Thus, it was upon the defence to
prove that there existed a grave and sudden provocation. In absence of such proof, Nanavati
was convicted of murder.

3
A.I.R 1962 S.C 605
Specific Rule

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.

Specific rules specifically put the burden on proving certain facts on particular persons.
According to Section 106 of the India Evidence Act, when any fact is within the knowledge
of any person, the burden of proving that fact is upon him. When a person does an act with
some intention other than that which the character and circumstances of the act suggest, the
burden of proving that intention is upon him. For example, A is charged with traveling on a
train without a ticket. The burden of proving that he had a ticket is on him.

The accused is presumed innocent in criminal cases. It is the prosecution who is required to
establish the guilt of the accused without any doubt. At the same time, the accused is not
required to prove his innocence without any doubt but only has to create reasonable doubt
that he may not be guilty.
Presumptions

Court presumes the existence of various facts. For example, Section 110 presumes that the
person who is in possession of a property , he is assumed to be the owner of the property. As
per Section 113A, 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. As per Section 113B, 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. Thus, when the presumption of the court is in favour of a party, the burden
of disproving it rests on the opposite party. 
Application of Burden of proof in India

In India, Burden of proof is embedded in chapter VI of the Indian evidence act as already
discussed.

Sec. 4 of the Act defines the phrase: "shall presume". It states that whenever it is directed by
the Act that the court shall regard such fact as proved, unless and until it is disproved. Sec. 3
of the Act defines the words "proved" and "disproved." It relies upon the prudent man's
hindsight to weigh the probabilities of the existence or non-existence of a fact. If on weighing
the probabilities one acts upon the supposition that a fact exists or does not exist, then the fact
is said to be proved or disproved, respectively. Therefore, on a literal reading of the relevant
sections of the Act, it is clear that in cases concerning general exceptions the accused has to
prove his case on a preponderance of probabilities.
Conclusion

The rule governing the burden of proof is that whoever lays a 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 fact
established by the plaintiff to the court in accordance with the Burden of Proof that rules the
case.
Bibliography

1. The Indian Evidence Act, 1872

2. The Indian Penal Code, 1860

3. SCC online

4. Dr Avtar Singh, Central Law Publications, Principles of the law of Evidence