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Burden of Proof

Every judicial proceeding has for its purpose, to ascertain some right or liability. These rights and liabilities arise out of facts which must be proved to the satisfaction of the court. Section 101 to 111 lays down provisions regarding who is to lead evidence and prove the case. Sections 101 to 103 deals with the burden of proof in general while Section 104 to 111 deals with case where the burden of proof lies to a particular person. These rules are called rules relating 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. The strict meaning of the term ‘burden of proof’ (onus probandi) * is that if no evidence is given by the party on whom the burden is passed the issue must be found against him. The phrase “Burden of proof” has two distinct meanings:

  1. Burden of establishing the case - i.e. the burden of proving all the facts or establishing one’s case. It is fixed, at the beginning of the trial, by the statements of pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever (Section 101).
  2. Burden of introducing evidence - It is always unstable and may shift from one party to another during the proceeding (Section 102-103). The burden must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It may again shift back on him, if the rebutting evidence produced by his opponent preponderates. This being the position, the question as to the onus of proof is only a rule for deciding on whom the obligation rests of going further if he wishes to win.

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.

Onus probandi - The term merely means that if a fact has to be proved, the person in whose interest it is to prove he should adduce some evidence, however slight, upon which a court could find the facts which he desires the court to find. The onus is always on a person who asserts a proposition or a fact which is not self-evident.

The question of onus or burden of proof at the end of the case, when both the parties have adduced evidence is not of very great importance and the court has to come to a decision on a consideration of all materials. When the entire evidence, which is possible on a subject, has already come before the court, from whatever source it may be, it is well settled that the question of burden of proof becomes immaterial. Burden of proof as determining factor of the whole case can only arise if the court finds the evidence for and against so evenly balanced that it can come to no conclusion. Then the onus will determine the matter and the person on whom the burden of proof lies will lose.

The party on which the onus of proof lies must, in order to succeed, establish a prim a facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by the strength of his own right and the dearness of his own proof.

Burden to prove facts

Section 101 of the Indian Evidence Act, 1872 speaks about, “Burden of proof”. This section says that whenever a person wants the court to give judgment as to any legal rights or liabilities based on some facts of which he asserts then he will have to prove the existence of those facts.

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.

Illustration says that the ‘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.” In this case the burden of establishing the case is on ‘A’ under Section 101 and the burden of introducing the evidence is also on ‘A’ under Section 103 because in Indian law a man is presumed to be innocent until he is proven guilty.

Bhagwat Sharan Thr. LRs v. Purushottam & Ors., Civil Appeal No. 6875/2008

On 3rd April 2020, Supreme Court observed that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. The bench comprising Justices L. Nageswara Rao and Deepak Gupta observed while considering an appeal arising out of suit for partition that not only jointness of the family has to be proved but burden lies upon the person alleging existence of a joint family to prove that the property belongs to the joint Hindu family unless there is material on record to show that the property is the nucleus of the joint Hindu family or that it was purchased through funds coming out of this nucleus.

Ashish Batham v. State of Madhya Pradesh, AIR 2002 SC 3206

In this case, it was observed by Justice D. Raju that “Realities or Truth apart, the fundamental and basic presumption in the administration of charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it maybe is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and grave the charge is greater should be the standard of proof required.

Krishna Prasad v. Ram Prasad, AIR 2001 Pat 1

In this case, a lady gifted her property to her grandson. The lady was over 90 years old but she was completely infirm and she was totally intelligible. The gift was due to the natural flow of love as the done lost his mother and also his step-mother started torturing him. It was contended in the case that the transaction was a fraud transaction. The court held that burden of proving that the transaction was fraudulent was on the person who alleges it.

Savithri v. Karthyayani Amma AIR 2008 SC 300

In this case, there were suspicious circumstances regarding the execution of a will also there was an allegation of coercion. The court said that in that case, the burden of proof was on the party who alleged coercion.

On whom burden of proof lies

Section 102 of the Indian Evidence Act, 1872 speaks about, “On whom burden of proof lies”. This section says that the burden of proof lies on the person who would fail in case no evidence is given on either side.

Illustration: - ‘B’ is in possession of a property. ‘A’ asserts that the property was given to him by B’s father in a will. If no evidence is given on either side, ‘A’ would fail and ‘B’ would be allowed to keep the possession of the property. So, ‘A’ will have the burden of proof.

In an action for damages for negligence, if the defendant alleges contributory 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. This principle also verifies the fact that the burden of proof lies upon the party who affirms a fact rather than upon one who denies it. A person claiming the benefit of adoption must prove valid adoption.

Aldino Santos Braganza v. Marle Dos Santos Barganza, AIR 2008 NOC 2090 (Bom)

In this case, there was a divorce case where it was shown that a letter was written by the wife’s advocate to her husband making imputation that he is living an adulterous life. The court said that the burden of proving that it was not written with her consent or knowledge was on the wife.

Burden to proof the particular fact

Section 103 of the Indian Evidence Act, 1872 speaks about, “Burden of proof as to particular fact”. Section 103 amplifies the general rule laid down by Section 101. This section says that the burden of proof of a particular fact lies on that person who wants the court to believe in its existence unless the law itself provides that the burden of proof lies on any particular person.

Therefore, this section says that the burden of proof lies on a person who asserts the affirmative or negative of a particular fact unless the evidence law or any other law in force specifically provides for the burden of proof to be on any particular person. So, this section says that the one who asserts have to prove.

The difference between this section and Section 101 is that in Section 101 the person who asserts the affirmative has to prove the fact, while in this section the person who asserts a particular fact will have the burden of prove whether it’s positive or negative, affirmative or denying.

Section 39 of Cr.P.C. provides that every person should report to the nearest police officer or magistrate about certain offences that he knows or seen to have been committed. If he does not do that the burden of giving a reasonable excuse is upon him. This is one of the cases that the second part of Section 103 of the Indian evidence act provides i.e. “if the law itself provides that the burden of proof lies on any particular person”. In this case, the law (here it is Section 39 of CrPC) provides the burden on the person who did not give information to the nearest police officer or magistrate.

Burden to prove to make evidence admissible

Section 104 of the Indian Evidence Act, 1872 speaks about, “Burden of proving fact to be proved to make evidence admissible”. This section says that 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.

Illustration: - A wishes to prove a dying declaration by B. A must prove B’s death. This illustration says that the fact necessary to be proved is the dying declaration of B and the fact necessary to prove the dying declaration is that B is dead.

Mahboob Sab v. Union of India, AIR 2011 Kart. 8

In this case, the Railways contentions was that the person who died by falling from a train was not a bonafide passenger being without ticket, the court said that it was for the Railways to prove that fact.

Burden to prove that accused comes within exception

Section 105 of the Indian Evidence Act, 1872 speaks about, “Burden of proving that case of accused comes within exceptions”. This section refers to the exceptions provided to the accused that will serve as benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws’. The general principle 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 then shifts to the accused who can take the defense of general exceptions in I.P.C.

The standard of proof upon the accused whilst claiming an exception under Section 105 is comparatively lower than that upon a prosecuting party in similar circumstances. An accused may not have to bring forth evidence to prove innocence beyond a reasonable doubt. However, an accused when asserting that his particular circumstances fall within an exception under the said provision, he alone has the onus of proving the same.

The fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts, and it always rests on the prosecution. Section 105 is an important qualification of this general rule. This section is an application, perhaps an extension of the principle laid down in Section 103. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused under Section 105.

Burden to prove fact specially within knowledge

Section 106 of the Indian Evidence Act, 1872 speaks about, “Burden of proving fact specially within knowledge”. Section 106 is an exception to Section 101. This section says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In other words, any person who is said to be aware of a particular fact has the onus of proving such a fact is upon him. The section uses the term “Specially within knowledge” denoting that the possession of such knowledge also shifts the burden of proof upon the possessor. The word “specially” means facts that are pre-eminently or exceptionally within the knowledge of the person.

Illustration: - Body of B was found in the house of A. The onus is upon A to establish that even know body of the deceased was recovered from his house, his involvement in the crime is negligible. The inmates of the house are also required to provide an explanation. If the defendant fails to provide a viable explanation and fails to establish his innocence, this would form a chain of circumstantial evidence establishing the guilt of the accused.

Section 106 applies only to the parties to a suit or proceeding. It is designed to meet certain exceptional cases in which it would be impossible or very difficult for the prosecution to establish facts which are especially in the knowledge of the accused. If a person is found in possession of a stolen property immediately after the theft and he claims that there was no intention to receive stolen property, he must prove that fact, for that fact is especially within his knowledge. Similarly, in the case of plea of alibi, since only the person raising the plea knows that where he was at the time, burden lies on him to prove that fact. This section also come into play in the cases of custodial or dowry death, and, negligence of carriers of goods. The principle stated in the section is an application of the principle of “Res ipsa loquitur”.

Ram Gulam Chaudhury v. State of Bihar, 2001 Cr LJ 4632

In this case, a dead body was not found but there was clear witness by the eye witness that the victim was killed by the accused before they took away the body. No explanation was given by the accused as to the disappearance of the dead body. The court said that it can convict the accused people by drawing the presumption that the accused people had a reason to take away the dead body and the reason being that the death was caused by them.

Geemol Joseph & Ors. V. Kousthabhan & Anr., Crl. Appeal No. 2535/2008

On 26th July 2019, the Kerala High Court held that when there is an alteration in the cheque with regard to the name of the payee, the burden is upon the complainant to prove that such alteration was made by the accused himself or that it was made with the consent of the accused.

Burden to prove the death of person

Section 107 of the Indian Evidence Act, 1872 speaks about, “Burden of proving death of person known to have been alive within thirty years”. This section says when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact. The presumption is not a very strong presumption. It can be rebutted even by the slightest evidence to the contrary.

Burden to prove that person is alive

Section 108 of the Indian Evidence Act, 1872 speaks about, “Burden of proving that person is alive who has not been heard of for seven years”. This section says that if a person is not heard of for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus, seven years’ absence creates rebuttable presumption of death.

There is a simple presumption of death and not of the time of death, for which an independent evidence is needed. The onus of proving that death took place at a particular time within the period of 7 years lies on the person who claims a right for the establishment of which that fact is essential.

Burden of proof as to Relationship

Section 109 of the Indian Evidence Act, 1872 speaks about, “Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent”. This section says that where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so. Thus, there is a presumption against change of status quo, namely that any existing state of things will continue as it is.

Burden of proof as to Ownership

Section 110 of the Indian Evidence Act, 1872 speaks about, “Burden of proof as to ownership”. This section says that when a person is in possession of anything as owner, the burden of proving that he is not owner is on the person who affirms that he is not the owner.

The principle behind this section is that possession is the prima facie evidence of title and anyone who intends to oust the possessor must establish the right to do so. The principle will not apply if the possession is derived by force or fraud. The term possession in this section has to be understood not as juridical possession but as actual present possession.

Proof of good faith in transactions

Section 111 of the Indian Evidence Act, 1872 speaks about, “Proof of good faith in transactions where one party is in relation of active confidence”. This section says that when a person stands towards another in a position of active confidence, the burden of proving the good faith of any transaction between them lies on the person in active confidence.

Illustration: - The good faith of a sale by a client to attorney is in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

The term “active confidence” means relationship where person have power to influence the will of other. Relations of trust and confidence (i.e. fiduciary relation) include those of parent and child, lawyer and client, spiritual guru and his follower, principal and agent, partner and firm, doctor and patient, persons in authority and those over whom he exercises authority. In all such cases, the law imposes the duty of good faith upon the person occupying the position of trust and confidence, and he will have to prove that he acted in good faith before he can enforce the transaction against the other party. A contract with a ‘pardanashin’ woman attracts Section 111.

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