BURDEN OF PROOF UNDER LAW OF EVIDENCE

The Law of Evidence is a critical piece of legislature which supplements 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.[i]

The concept of burden of proof is defined under Section 101 of the Law of Evidence
Act, states that when a person is bound to prove the existence of a fact, the burden to
provide evidence for the same lies upon him. Chapter VII of the Act deals with
provisions under burden of proof. The term “burden of proof” isn’t defined in the Act,
however it is the rudimentary principle of criminal that, that the presumption of
innocence lies with the accused unless proven otherwise.  

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was
made by A, the onus to provide evidence to support such assertion lies upon him.

Principles of Burden of Proof

The principle of Burden of proof is based on the concept of onus probandi (burden of

proof) and factum probans (proving a fact). While the burden of proof remains
constant, the onus for the same shifts from one party to another. The facts that are
required to be proved are those which are not self-evident in nature. In the case
of Jarnail Sen v. State of Punjab[ii] that in, if the prosecution fails to adduce the
satisfactory evidence to discharge the burden, they cannot depend upon evidence
adduced by the accused person in support of their defense

Initial Burden of Proof:

In criminal cases, the principle remains constant that the initial burden is on the
prosecution to establish that the accused has committed a crime. If the prosecution
fails to establish beyond reasonable doubt that the accused is guilty, the accused is
entitled to an acquittal.[iii] If burden of proof is put on the shoulders of the wrong
party, the Supreme Court states that this would vitiate the entire judicial system.
[iv] Wherein, a landlord seeks eviction of the tenants on the grounds of bona fide
personal need, the onus to establish the same is on him[v]. In the case of Banwari Lal
v. Road transport, where good were lost by the carrier, the burden lies upon him to
establish that there was no negligence on his part.[vi] The defence version may even
be false; nevertheless, the prosecution cannot derive any advantage from the falsity or
other infirmities of the defence version, so long as it does not discharge its initial
burden of proving the case beyond ail reasonable doubt.[vii] In the case of Triro v.
Dev Raj,[viii] there was a delay in filing the case going beyond the limitation period,
the onus to justify the delay was on the prosecution.

In matrimonial cases, the principle of burden of proof relating to civil cases is

applicable. A party seeking divorce will have to prove the grounds for divorce such as
desertion, cruelty or infidelity.[ix]

Section 102

This section attempts to locate the party, upon whom the burden of proof lays, the
burden of proof lies upon the party whose stance will fail if no evidence is produced
by either of the parties. The burden of proof lies on the party who affirms a fact rather
than the party who denies it.[x] In the case of insanity or unsoundness of mind, the
law presumes sanity until proven otherwise.[xi] In the case of Ram Raja Ram v.
Dhruba Charan Jena, the party claiming no consideration under Section 118 of
Negotiable Instruments Act must provide proof for the same.[xii]

Illustration: A sues B for possession of family heirloom, which A asserts was left by
his family in the will, if no evidence is provided by either side, B will retain the
family heirloom.

Section 103

The section imposes the responsibility of burden of proof upon the party that wishes
the Court to believe and act upon the existence of a fact. This principles stays
unaffected by the fact that a particular fact being asserted is negative or affirmative.

Illustration: A stole B’s car. B subsequently admitted the same to see. For the Court
to believe the same, A will have to provide evidence that proves admission of theft of
car committed by B.
Section 104

This section states that when admissibility of one fact depend upon the existence and
admissibility of another fact, the party which wants to prove it will depend upon the
fact that makes the subsequent fact admissible. 

Illustration: A wants to prove dying declaration of B, A must prove B is dead.

Section 105

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.

In Pratap v Stare of U.P. where the probability that the accused had caused death in
self-defense was held to be sufficient even though he had not taken his defense in the
committal proceedings. Again the Supreme Court held that the burden of proving that
the case comes within any of the general exceptions can be discharged by showing a
preponderance of probability. Under section 105 of the Evidence Act the burden of
proof is on the accused, who sets up the plea of self-defence, and in the absence of
proof, it is not possible for the court to presume the truth of the plea of self defense.

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.[xiii] 

Section 106

Under the said provision, 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.

An example would be the case of Eshwarai v. Karnataka[xiv] wherein a man and a

woman were found in the bedroom of person who had been killed due to extensive
injuries, the burden to prove the rationale of their presence was upon them. It was
assumed that since they are present at the scene of the crime, they would specially
have knowledge regarding the circumstances under which the death of the person was
caused.

Burden upon affirmation:

A general trend that the Indian Evidence act follows is that of shifting the burden of
proof onto a person who affirms a fact or assertion. The same is visible in various
provisions of the act. The rationale behind the same is that if a person asserts
something, he may also prove the same. Such instances can be found in sections 107
to 110. Section 107 states that if a person who was alive within the last 30 years is
said to be dead by another person, the person affirming the same must prove the
death. Similarly, under section 108, person who hasn’t been heard from in 7 years and
is therefore presumed dead, the burden of proving that the person is on whomsoever
affirms it. The situation is similar under section 109 which talks about establishing
relationships between partners, landlords – tenants & principal – agents and under
section 110 regarding assertions of ownership. Whoever affirms it, must prove it.

Presumption as to Burden of Proof

Section 111 to 114 lay down certain specific conditions that define the party upon
which the burden of proof lies. These provisions envisage the exceptions to the
doctrine of “Innocent Until Proven Guilty”.[xv] These enumerated conditions go
against the doctrine by shifting the onus onto the accused to prove innocence, as
opposed to the prosecution proving guilt. There are various examples in the Indian
evidence act:

Section 111A

This sec. states that a person accused of the commission of certain offences under the
Indian Penal Code such as conspiracies against the government etc. in a disturbed area
is presumed to be guilty and must prove his innocence, thereby putting the burden of
proof onto him.

Section 112

It lays down that in the event a child is born during the course of a marriage or within
280 days of its dissolution, he may be presumed to be the legitimate child of his
father. This was characterized in the case of Smt. Dukhtar v. [Link][xvi] as the
father would have the burden to prove that the child is not his or would owe the same
obligations as he would to a legitimate child. 

Sections 113A & 113B

These create presumptions against the husband and his family in cases of allegations
of harassment, cruelty and dowry death. The burden of proof is on the husband and
his family to show innocence.

Section 114

It allows the court to presume certain facts such as that the possession of stolen
property means that the person is the thief. Another example would be that when a
person refuses to answer a question put to him in court, the presumption would be that
if he had given the answer, it would be unfavorable for him. Various other cases have
been enumerated in section 114 which allow for the court to presume the existence of
certain facts and accordingly shift the burden of proof. These presumptions generally
go against the generally established principles of burden of proof. The burden of proof
is always upon the party against whom the presumption works.[xvii]

The general principle, when it concerns the burden of proof, is that the person who
makes a particular assertion has the onus of proving the same. This is based on the
rationale that the party who seeks to initiate action against another by the way of
judicial dispute resolution must also be forced to prove why the other party must
undergo the said process. The Indian evidence Act allows for the courts to shift the
burden of proof onto the other party, in contradiction of the principle above, but only
in specific instances. The threshold for proof also decreases in certain cases when that
happens.
Frequently Answered Questions:

1. Under what circumstances the burden of proof is on the defendant?

In cases of Dowry death, custodial rape, absence of consent in rape, suicide of a

married women, custodial death the burden of proof is upon the accused as opposed to
the general principle that the burden of proof is placed on the party asserting a fact.

2. What is the doctrine of res ipsa loquitor?

The doctrine states that in case of negligence the onus to prove lack of negligence is
upon the accused not on the claimant.

3. What is the burden of proving an exception?

In the case of Dayalalbhai v. State of Gujarat, the Court stated that the prosecution
must prove beyond reasonable doubt that the accused has committed the offence,
however the accused has an opportunity to rebut the claim by pleading insanity. Even
if he fails to establish absolute insanity, if his statement creates doubts it will be
enough to acquit the accused

Burden of Proof and Onus of Proof

There is difference between burden of proof and onus of proof. The ‘Burden of Proof’
is the burden to prove the main contention of party requesting the action of the court,
while the ‘Onus of Proof’ is the burden to produce actual evidence. The Burden of
Proof is constant and is always upon the claimant but the Onus of Proof shifts to the
other party as and when one party successfully produces evidence supporting its case.
The aspects of burden of proof and onus of proof were considered by the Supreme
Court in the case of A. Raghavamma & anr. vs.A. Chenchamma & anr., AIR 1964 SC
136 . 143. The Court had to consider a case of a party claiming to have been adopted
and his right under a partition of the joint family in which he claimed right upon
partition. Extensive evidence was led by both the parties. It was observed in
paragraph 12 thus:
There is an essential distinction between burden of proof and onus of proof : burden
of proof lies upon the person who has to prove a fact and it never shifts, but the onus
of proof shifts. The burden of proof in the present case undoubtedly lies upon the
plaintiff to establish the factum of adoption and that of partition. The said
circumstances do not alter the incidents of the burden of proof. Such considerations,
having regard to the circumstances of a particular case, may shift the onus of proof.
Such a shifting of onus is a continuous process in the evaluation of evidence.

It was further observed in paragraph 22 thus:

.... but when evidence has been adduced on both sides, the burden of proof ceases to
have any practical importance.

What must, therefore, be appreciated is the distinction between the burden and the
onus of proof. The burden of proving authorised occupation is upon the noticee under
the express mandate of the PP Act. Therefore, he has to discharge that burden. That
cannot shift. For discharging that burden he must necessarily lead evidence first. If he
shows the authorisation of his occupation, the onus would then shift to the landlord /
public authority to show how the authorised occupation ceased to be authorised and
how and when it became unauthorised. That is how the judgments in the cases of
Nusli Neville Wadia (supra) and Nandini J. Shah (supra)laid down who would lead
evidence followed by whom. The evidence in rebuttal would be required if the onus
(not the burden) were to shift to prove something further.
 The contradistinction between burden and onus of proof was further considered in the
case of Anil Rishi vs. Gurbaksh Singh, AIR 2006 SC 1971. In that case the Plaintiff
claimed that the sale deed purportedly entered into by him with the Defendant was
forged and fabricated. It was for the Plaintiff to prove that fact. An issue casting the
burden on him was framed. It was then reframed putting the burden on the Defendant
to prove that it was genuine. Repelling the reasoning of the Courts below that the
Plaintiff cannot prove the negative and that it would be difficult for him to prove that
fact and the Defendant would be better able to prove the document since he
propounded it and had it in his possession, and considering Sections 101 and 102 of
the Evidence Act, it was observed in paragraph 19 of this judgment that :
A distinction exists between a burden of proof and onus of proof. The right to begin
follows onus probandi. It assumes importance in the early stage of a case. The
question of onus of proof has greater force, where the question is which party is to
begin.

.... The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial
onus is always on the plaintiff and if he discharges that onus and makes out a case
which entitles him to a relief, the onus shifts to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff to the same.

The extent of importance that has to be put on the onus of proof that is on a party
consequent upon the burden that lies on such party to prove its claim came to be
considered by the Supreme Court in the case of State of Madhya Pradesh vs. Bhopal
Sugar Industries Ltd., AIR 1964 SC 1179. That was a case in which a tax was levied
only upon persons carrying on agricultural operation in Bhopal region. It was
challenged as discriminatory. The Petitioner alleged differential treatment as a similar
tax was not levied upon similar agricultural operations outside Bhopal region. It was
observed that the legislation can be challenged as arbitrary only if the unequal laws
cannot be justified on geographical grounds imputing unequal treatment upon the
applicant making out not only that he had been treated differently from others, but
that he had been so treated from persons similarly circumstanced without any
reasonable basis and unjustifiably. The Court also observed that the Petitioner was
singularly deficient in furnishing particulars justifying the infringement. Similarly the
State argued only a demurrer and did not place before the Court the evidence which
would, in the very nature of things, be in its possession(upon the law in Section 106 of
the Evidence Act). It was under these circumstances, observed that the Court would
not be justified in dismissing the Petition on a technical view of the burden of proof.
Parties were given an opportunity to lead requisite evidence which has a bearing on
the issue.
Resources

[i] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law
Publication, Allahabad

[ii] AIR 1996 SC 755

[iii] Ouseph v. State of Kerala, (2004) 4 SC 446: A.I.R 2004 SC 2088

[iv] Rangammal v. Kuppuswami A.I.R 2011 SC 2344.

[v] SJE Benezar v. Velayudhan, A.I.R 1988 SC 746.

[vi] Banwar Lal v. Road Transport, A.I.R 1989 Pat. 303.

[vii] Md. Alimuddin v. State of Assam, 1992, Cri. L.J. 3287

[viii] Triro v. Dev raj A.I.R 1993 J&K 14

[ix] Dharam Dev v. Raj Rani, A.I.R 1985 Delhi 389.

[x] Madhusudan Das v. Naravanbhai A.I.R 1982 S.C. 114.

[xi] K. Kusuma Kumari v. Gandhi Surya Bhagvan, A.I.R 1982 A.P. 63.

[xii] Ram Raja Ram v. Dhruba Charan Jena, A.I.R 1982 Orissa 264.

[xiii] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law
Publication, Allahabad

[xiv] Eshwarai v. State of Karnataka 1994 SCC 4

[xv] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law
Publication, Allahabad

[xvi] Smt. Dukhtar v. [Link] A.I.R 1987 SC.1049

[xvii] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law
Publication, Allahabad