BURDEN

OF
PROOF
CHAPTER – VII
Sections 101-114A

S. HRUDAI TEJ
Asst. Prof of Law
ICFAI – HYD.
INTRODUCTION
• Any person goes to a court to seek redressal of injustice caused to him, one party will assert the
existence of such facts and circumstances, and the other party deny their existence.
• It becomes important on whom the burden of proof shall lie.
• Burden of Proof not defined under IEA.
• Burden of Proof is an obligation imposed on a party to prove a fact.
• GENERAL RULE:
“He who asserts, must prove.”
• Legal Maxim : “EL INCUMBIT OROBATIO QUI DICIT NON QUI NEGAT”
It says, BoP is upon the party who substantially asserts the affirmative of the issue but not on the
party who denies.

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 BURDEN OF PROOF
GENERAL SPECIAL PRESUMPTION
PROVISIONS PROVISIONS S

Sections Sections May Shall Conclusive

101 – 104 105 – 111 Presumption Presumption Proof

Sections Sections Sections

113 A, 114 111A,113B,114A 112, 113

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GENERAL PROVISIONS

SECTIONS 101 -104

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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.
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.

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QUESTION
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.
Who will prove the existence of those facts?

CASE LAW
Madhusudhan Das vs. Naravanbhai (1982)
The BoP lies on the party who affirms a fact rather than the party who denies it.

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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.
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 is on A.

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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.
Illustration
(a) A prosecutes B for theft and wishes the Court to believe that B admitted the
theft to C.
A must prove the admission.

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104. Burden of proving fact to be proved to make
evidence admissible.
As per this section, the admissibility of one fact depends upon the proof of
another fact. It is a condition precedent to prove the particular fact.
Illustrations
(a) 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.

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SPECIAL PROVISIONS

105 – 111

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105. Burden of proving that case of accused comes
within exceptions.
The burden of proving the existence of circumstances falling within 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 defining the offence,
is upon him, and the Court shall presume the absence of such circumstances.
Illustration
(a) 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.

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Devidas Loka Rathod v. State of Maharashtra, 2018
The Supreme Court has ruled that under Section 105 of the law, the burden of
proof on the accused is not as strict as the burden on the prosecution to prove
guilt beyond a reasonable doubt.
The accused has only to establish his defence on a preponderance of
probability.
Once the accused has done this, the burden shifts back to the prosecution to
prove that the legal exception claimed by the accused does not apply.

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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.

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107. Burden of proving death of person known to have been alive within
thirty years.

Burden of proving that he is dead is on the person who affirms it.

108. Burden of proving that person is alive who has not been heard of for
seven years.
Burden of proving that he is alive is shifted to the person who affirms it.

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109. Burden of proof as to relationship in the cases of partners, landlord
and tenant, principal and agent.
Burden of proving is on the person who affirms it, that they do not stand, or have ceased to
stand, to each other in those relationships respectively.

110. 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.

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111. Proof of good faith in transactions where one party is in relation of
active confidence.
Where the question before the court is as to the good faith of a transaction
between parties, that party which is superior to the other party must prove as to
how the transaction is based on good faith.
Illustrations
In a transaction between doctor and client, lawyer and client, the good faith of that transaction
should be proved respectively by doctor and lawyer.

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Section 112: Birth during the marriage
conclusive proof of legitimacy.
Whenever a married woman gives birth to a child during the subsistence of her valid marriage or
at any time within 280 days after the dissolution of such marriage.
The birth of such child shall be conclusive proof of its legitimacy unless non access is proved
by the other party.

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SECTION 113A: Presumption as to abetment of suicide by a married women
Whenever a married woman commits suicide within 7 years of her marriage because
of cruelty of her husband or any relatives of husband, the court may presume such
suicide is abetment of suicide.
- BoP that it is not abetment of suicide is on the husband or the relatives.
SECTION 113B: Presumption as to dowry death
Whenever a married woman dies within 7 years of marriage in connection with
demand for dowry the court shall presume such death as dowry death.
- BoP that such death is not dowry death is on the husband or any relative of the
husband.

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ESTOPPEL (Section 115- 117)
• It is applicable only to civil cases.
• Object of estoppel is to stop a person from giving contradictory statements at
different times on the same issue.
• Estoppel means to stop a person.
• Derived from French word “ Estoup” which means “shut the mouth”.
• Principle of estoppel based on case of “Pickard vs. Sears”.

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Kinds of estoppel
1. Estoppel by record (or) Judgement: When a court of competent
jurisdiction gives a judgment, the matter decided cannot be reopened by the
same party as that judgment operates as resjudicata.
2. Estoppel by conduct: When a person is required to speak, he must speak if
he remains silent at that juncture, that silent itself is taken as statement of
him. Later he is estopped from giving any statement on the issue.
3. Estoppel by negligence: If a person by negligence causes another person
to believe in the existence of certain facts, afterwards he will be estopped
from denying the existence of such fact.

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4. Promissory estoppel: When ever a promise is made by a person to another
person he must stick to that promise and he is estopped from going back on
such promise.
5. Estoppel by deed: When a person is a party to an instrument or deed by
accepting the terms and conditions, afterwards he is not permitted to deny
those terms and conditions.

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SEC 115 - ESTOPPEL
• Representation made by one person to another person by way of spoken or written
or by conduct.
• That representation must be relating to a fact but not law.
• On such representation, the other person must believe the thing to be true and he
must act upon such representation.
• At this juncture the person who is making such representation will not be allowed to
go back on that representation.
In University of Madras vs. Sunder Shetty 1956, When a promise is made one must
stick to that, he should not withdraw that promise when the other person acts upon it.

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Section 116: Estoppel of tenant and licensee etc, of a person in
possession.
• Tenant of immovable property is estopped from saying that land lord has no
title to that property.
Section 117: Estoppel of acceptor of bill of exchange, bailee or licensee
• Acceptor of BoE, is not permitted to say that the drawer has no authority to
draw the bill.
• A bailee is estopped from saying that the bailor has no authority over the
goods bailed to him.

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COMPETENCY OF WITNESS (118-120)
SECTION 118:
• Every person is a competent witness subject to the condition that he
understands the question and gives the correct answer.
• Based on Tender age, extreme old age or disease of mind or body, a person
may not be able to understand the questions.
• Such persons will not be considered as a competent witness.
• Even a lunatic is competent witness unless he is prevented from
understanding the questions put to him and giving correct answers.

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SECTION 119: Witness unable to communicate verbally.
In such a case, that witness may give evidence either in writing or by signs
made in the open court.
Such evidence shall be deemed to be oral evidence.
SECTION 120: Parties to civil suit, and their wives or husbands – husband
or wife of person under criminal trail.
Husband and wife can give evidence either against each other or in favour of
each other.

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PRIVILEGED COMMUNICATIONS (121-
• Privileged communications are those communications which cannot be brought before the court of
131)
law as evidence.
SECTION 121 : PRIVILEGE OF JUDGES AND MAGISTRATES
• No judge or magistrate shall be compelled to answer questions as to the conduct of the judge or
magistrate or how the information came into the knowledge of the court. Except under special
orders of superior courts.
• But he may be examined as to other matters which occurred in his presence whilst he was so
acting.
ILLUSTRATIONS
• A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the
Magistrate. B cannot be compelled to answer questions as to this, except upon the special order
of a superior Court.
• A is accused before the Court of Session of attempting to murder a police-officer whilst on his trial
before B, a Sessions Judge. B may be examined as to what occurred.

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SECTION 122: COMMUNICATION DURING MARRIAGE
• Communication exchanged between by spouses during their valid marriage
has absolute privilege to not disclose even before the court.
• Exceptions:
1. Either of the spouses gives consent to the disclosure.
2. In criminal cases, Communication exchanged by them explaining the fact in
issue are relevant fact.
3. In civil cases, Communication can be disclosed.

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SECTION 123: Evidence as to affairs of the state
No witness is allowed to give evidence from the unpublished records, relating to the
affairs of the state without the consent of the head of the department.
SECTION 124: Official communications
No public officer shall be compelled to disclose communications made to him in his
official confidence.
SECTION 125: Information as to communication of offences
No magistrate or police officer, revenue officer can be compelled to where and how he
got information relation to the commission of offence.

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SECTIONS 126,127 & 128: Professional
communications
• No advocate or pleader should disclose any communication made to him by a client.
• Such communications are not allowed to be disclosed even after the employment has seized.
• Under section 126, Communication made by the client to commit an illegal act later will not be
protected. In case of:
(1) any such communication made in furtherance of any illegal purpose,
(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment.

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• Section 127 – Privilege under section 126 shall apply to clerks, servants, and
interpreters of the advocate or pleader.
• Section 128 – When the client consents to the disclosure it can be disclosed
by advocate.
• Section 129 – Confidential communications with legal advisors shall not be
compelled to disclose to the court.

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ACCOMPLICE – Section 133
• Accomplice is a person who is a partner in a crime.
• Offence must be committed by 2 or more.
• Each such offender becomes an accomplice to the principle offender.
• He shall be a competent witness against the accused.
• In case of accomplice evidence if found credible then corroboration is not at all
required. Conviction shall convict the accused solely on basis of accomplice
evidence.
• Section 114 illustration (b) stated that corroboration may be required.
• In case of K. Hashim vs. State of Tamil Nadu (2005), resolved the conflict by
stating expression “shall” under Section 133 always prevails over the expression
“may” under Section 114ill (b).

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EXAMINATION OF WITNESS
136. Judge to decide as to admissibility of evidence
When a party to the suit or proceedings giving evidence, the judge may ask the
party as to how and in what manner that evidence was relevant.
It is the duty of the judge or magistrate to admit only the relevant evidence to a
suit or proceedings.

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137. Examination-in-chief.
The examination of witness by the party who calls him shall be called his examination-
in-chief.
Cross-examination.
The examination of a witness by the adverse party shall be called his cross-
examination.
Re-examination.
The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination.

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138. Order of examinations.
• Witnesses shall be first examined-in-chief, then (if the adverse party so
desires) cross-examined, then (if the party calling him so desires) re-
examined.
• Direction of re-examination. –– The re-examination shall be directed to the
explanation of matters referred to in cross-examination; and, if new matter is,
by permission of the Court, introduced in re-examination, the adverse party
may further cross-examine upon that matter.

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140. Witnesses to character. –– Witnesses to character may be cross-
examined and re-examined.
141. Leading questions. –– Any question suggesting the answer which the
person putting it wishes or expects to receive, is called a leading question.
142. When they must not be asked. –– Leading questions must not be asked
in an examination-in-chief, or in a re-examination, except with the permission of
the Court.
143. When they may be asked. –– Leading questions may be asked in cross-
examination.

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SECTION 154 – HOSTILE WITNESS
• A hostile witness is one who appears before the court on behalf of one party
but starts giving evidence in favour of the opposite party.
• When a witness is considered hostile, by the party which called him to the
court on his behalf, he may request the court to declare such witness as a
hostile witness.
• Evidence of hostile need not be rejected in toto. Both the prosecution and
defence can rely on those statements. - State of U.P. vs. Ramesh Prasad
Mishra and anr.

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SECTION 155: Impeaching the credit of a
witness.
• Impeaching the credit of a witness means destroying the credibility of witness by
following ways:
1. By bringing the persons who testify before the court from their own knowledge
that witness is untrust worthy.
2. Proving to the court that witness accepted the bribe from the opposite party or
involved in corruption.
3. By proving inconsistency between his previous and present open court statement.

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CONTRADICTION AND
CORROBORATION
Section 145 : Contradiction
• Two inconsistent statements on the same point, he is considered to have
contradicted himself on the same issue.
• A witness maybe cross examined as to previous statements.
• This section does not apply to contradict a witness, with respect to another
statement made by some other person on the same fact.

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Section 157 : Corroboration
• When a witness gives identical statements on the same point at different
times, the first statement can be used as corroborate or support the second
statements.
• FIR statement can be used as corroborative when the same person comes
and state the same before the open court.

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167. No new trial for improper admission
or rejection of evidence.
• Court if admits irrelevant evidence by rejecting the relevant evidence and if
such act of court causes grave injustice, then trail considered invalid.
• If there is no injustice caused while admitting irrelevant evidence, trail
considered as valid.

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