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BURDEN OF PROOF

➢ INTRODUCTION:
The Indian Evidence Act does not define the term "burden of proof." However, in simple terms,
the burden of proof refers to the legal requirement or responsibility of the parties to establish
the facts that will assist the court in reaching a decision in their favour. Therefore, the duty to
prove a fact in a lawsuit is known as the Burden of Proof. The requirements under the burden
of proof are covered in Chapter VII of the Indian Evidence Act. Under the Indian Evidence
Act, 1872, sections 101 to 103 deal with the burden of proof in general, whereas sections 104
to 106 deal with the situation where the burden of proof is placed on a specific individual.
This 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.

➢ DEFINITION OF BURDEN OF PROOF (SEC. 101) :

"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."
According to this section a person interested in favourable judgment from the court must
produce evidence in support of his case.

➢ MEANING OF BURDEN OF PROOF:

Burden of proof is Legal requirement or duty of the parties to establish the facts that will assist
the court in reaching a decision in their favour. Burden of proof is primary, permanent and non-
shifting in nature.
Illustration: 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.
➢ BURDEN OF PROOF IN CIVIL CASES:

In the civil suit, the plaintiff has a burden of proof; he must have evidence of his case according
to facts and relevant evidence. He cannot lay the burden of proof on the defendant. Moreso, he
cannot take advantage of the weakness of the defendant. Even if the defendant does not take
appropriate defense from his side, then that is the plaintiff’s duty to prove his case with the
relevant facts and evidence of the suit.
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➢ BURDEN OF PROOF IN A CRIMINAL CASE: (beyond reasonable doubt)

The well-settled proposition of the law is that a person is always treated as innocent unless he
is not proved guilty. The burden of proof lies on the prosecution to prove to the court that the
accused committed a crime. And thus, he is liable to be punished.

The burden of proof also can be laid on the accused if he claims that he is innocent of the crime.
In the claim of exception of the crime, such burden of proof can be shifted upon the accused.
However, the heavy burden of proof is always upon the prosecution firstly; they must prove
the case without any reasonable doubt.

➢ PLEA OF ALIBI:

When the accused raises the plea of alibi (his presence elsewhere at the time of commission of
the offence) burden lies on him to substantiate that fact at least to the extent of a reasonable
probability. Even if the evidence produced is capable of creating a doubt whether the accused
was there at the time of the happening, he becomes entitled to benefit of doubt.

➢ THE PROVISIONS AND PRINCIPLES OF BURDEN OF PROOF:

The two maxims have covered the principle of burden of proof; the first one is onus probandi
which is referred to as the burden of proof and the second one is factum probands which refer
to proving the Fact. In other words, we can say that when the burden of proof remains stable,
in that situation, it shifted from one party to another party to prove the liability of the Fact in
the appropriate case.

➢ ON WHOM BURDEN OF PROOF LIES (SEC. 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.
Illustration: 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 lies on A.

In Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation Ltd. 1942 it
was held that where in an action for damages for negligence, if the defendant alleges
contributary negligence on the part of the plaintiff, he must prove this fact, for his case would
fail if no evidence were given on either side.
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In K. Kusuma Kumari v. Gandhi Surya Bhagwan 1982 it was held that in case of insanity
or unsoundness of mind burden of proving that fact lies on the person who wants to rely on it.
The law presumes sanity.

➢ DISTINCTION BETWEEN BURDEN AND ONUS OF PROOF:

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 a continuous process in the evaluation of evidence. Thus, in a criminal
case, 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.
➢ BURDEN OF PROOF AS TO PARTICULAR FACT (SEC. 103):
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.
Illustration: A prosecutes B for theft, and wishes the Court to believe that B admitted the theft
to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Kamini v. Puran Chandra 1987

A married woman was driven out of the matrimonial home by ill treatment. She filed a case to
recover her jewellery and other articles. Her in-laws contended that she had taken them away.
The court said there would be no presumption that she had done so.

The burden was upon the in-laws to prove the fact.

➢ BURDEN OF PROVING FACT TO BE PROVED TO MAKE EVIDENCE

ADMISSIBLE (SEC. 104):
When admissibility of a fact depends upon proof of another fact, party who wants to prove will
have to prove the fact on which admissibility depends.
➢ BURDEN OF PROVING THAT CASE OF ACCUSED COMES WITHIN
EXCEPTIONS (SEC. 105):
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
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defining the offence, is upon him, and the Court shall presume the absence of such
circumstances.
Illustration: 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.
GENERAL PRINCIPLES RELATING TO BURDEN OF PROOF:
Court presumes that the accused is innocent and therefore the prosecution must prove his guilt.
Once guilt is proved, the burden of proof lies upon accused to prove his defence.

K.M. Nanavati v. State of Maharashtra 1962

Nanavati the naval officer was prosecuted for killing his wife's paramour (Ahuja). When his
wife confessed about her relationship, he went to Ahuja, a scuffle followed, in the course of it
two shots from his service revolver went off accidentally resulting in Ahuja's death.

The SC held at the burden was upon him to show the fact of struggle and that the shots went
off either accidentally or in self defence. He was found guilty because he could not
prove his defence.

➢ BURDEN OF PROVING FACT ESPECIALLY WITHIN KNOWLEDGE (SEC. 106):

When any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him.

Principle under sec 106 is application of principle of res ispa loquitur (things speak for itself)

➢ BURDEN OF PROVING DEATH OF PERSON KNOWN TO HAVE BEEN ALIVE

WITHIN 30 YEARS. (SEC 107):

Section 107 is based on presumption of continuity of things. Once a thing is shown to exist,
the law presumes that it continues to exist until the contrary is shown.

Section 107 states that when a person is shown to have existed within the last 30 years, there
is a presumption that he is still alive and if anybody alleges that he is dead, he
must prove that fact.

➢ BURDEN OF PROVING THAT A PERSON IS ALIVE WHO HAS NOT BEEN

HEARD OF FOR 7 YEARS. (SEC 108):

108 qualifies the operation and effect of Sec 108 presumption raised by Sec 107.
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The man has disappeared, question arises whether he is alive or dead.

He remains unheard of for 7 years by those who would naturally have heard of him if he were
alive.

The presumption then arises that he is dead and the burden of proving that he is still living lies
upon the man who says so

➢ BURDEN OF PROOF AS TO RELATIONSHIP IN THE CASE OF

PARTNERS, LANDLORD AND TENANT, PRINCIPAL AND AGENT
(SEC 109):
•Section 109 is based upon the presumption that things continue as they were.
• Where certain persons have been shown to be related to each other as partners,
principal or agent or as landlord and tenant, there is a presumption of fact that
they continue to be so related and if anybody says that they were not or no more
so related he must prove that fact.

PRINCIPAL AND AGENT:

When an authority to do an act is once shown to exist, it is presumed to continue
until the contrary is proved. Sections 182-238 of the Indian Contract Act deal with
the relationship of principal and agent. Section 2-6 provides that reasonable
notice must be given of revocation or renunciation of agency. Section 2-8
provides when the authority of an agent is terminated.

➢ BURDEN OF PROOF AS TO OWNERSHIP (SEC 110):

Possession of anything is a symbol of ownership, so that if a person is shown to

be in possession of something there is a presumption that he is the owner.

Sec 110 states that where anybody alleges that the party in possession is not the
owner, he must prove that fact.

In M. Siddiq v. Suresh Das, 2020 it was held that section 110 is based on the
principle that title follows possession. That is why the provision postulates that
were a person is shown to be in possession and a question arises as to whether
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that person is the owner, the law casts the burden of disproving ownership on the
individual who affirm that the person in possession is not the owner.

Daya Shankar v Bachi 1982 Plaintiff's uncle used to treat him as his own son.
He was 80 years old. He fell ill and plaintiff admitted him to hospital. Within 8
days uncle executed a gift deed of certain houses in plaintiff's favour.

The court laid down that the deed in favour of plaintiff was executed in abnormal
circumstances. The burden of proving good faith was caste upon him which he
did not discharge. The deed was liable to be set aside.

ACTIVE CONFIDENCE:

These words indicate that the relationship between the parties must be such that
one is bound to protect the interest of other. This rule applies to trustee, an
executor, an administrator, a guardian, an agent, a minister of religion, a medical
attendant, an auctioneer, and an attorney. Persons standing in confidential relation
towards other cannot entitle themselves to hold benefits which those others may
have conferred upon them unless they can show to the satisfaction of the Court
that the person by whom the benefits have been conferred had competent and
independent advice in conferring them.