S.N.D.T.

Women’s University
Law School
Law of Evidence and Limitation Act
Subject:- Burden of Proof
Class :- LLB 3rd Year (Semester 5th)
Name :- Pratiksha Tripal Bhagat
Roll No:- 4
Submitted to: Ms. Priti Yadav

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 Index

SR. No. Topic Page No

1 Introduction 3

2 What is the burden of proof? 3

3 Principle section 101: Burden of proof 4-5

of
Section 102: on whom burden of proof lies 6
Burden
of Proof Section 103: Burden of proof as to particular fact. 7
Section 104 : Burden of proving fact to be proved to 8
make evidence admissible

Section 105: Burden of proving that case of accused 8-10

comes within exceptions.

Section 106: Burden of proving facts especially 10-11

within knowledge.

Section 107 12
Section 108 12-13
Section 109 to 112 13-14
Section 114: Court may presume existence of certain 14-15
facts

4 Changing trends of the Supreme Court of India 16

5 Difference Between Lok Adalat and Permanent 15

6 Kali Ram v. State of Himachal Pradesh (1973) 15-16

7 Scope of Section 105 of the Indian Evidence Act, 1872 16-17

8 Conclusion 18-19

9 Webliography 20

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 Introduction

The laws relating to the Burden of Proof and its related rules are as provided in
the Indian Evidence At 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.

What is the burden of proof?

In simple terms, Burden of Proof is the responsibility to prove the fact in a case.
Each party must provide a fact that will either stand for or against the case.

The term 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 °flaw over a criminal case, the
prosecution is faced with the burden to prove elements of the offense and disprove all
defences 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.

Definition:- Burden of proof is a legal standard that requires parties to

demonstrate that a claim is valid or invalid based on facts and evidence presented.
Burden of proof is typically required of one party in a claim, and in many cases, the
party that is filing a claim is the party that must demonstrate that the claim is valid
and carry the burden of proof.

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 Principle of Burden of Proof
Theoretically the basis is divided into two parts -
A) Concept of onus probandi
B) Factum probans
Thus together how to prove facts and who shall prove or who shall prove and
to what extend ? Burden of proof is constant. Onus shifts. It consists and means that
what is to be proved is fixed . e.g . burden is constant and who shall prove that is to
be decided.
This liabilities and responsibilities to prove the fact is known as onus (burden)
which shifts from shoulder of one party to the shoulder of another party. Burden of
proof is always constant because it has reference to ingredients and concepts while
onus shifted from shoulder to shoulder.
The rule of burden of proof in civil and criminal cases is of different nature. In
civil proceedings the party who alleges certain things must prove his case , but
proving beyond doubt is not necessary. In criminal cases however the guilt of the
accused is to be proved beyond reasonable doubts otherwise the accused gets
benefits of doubt. Cardinal (Important) rules as to burden of proof - Section 101,
102 and S.103 of the Indian Evidence Act, Provides three types of cardinal rules as
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 the 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.

Section 101 define burden of proof. This section says on whom burden of proof
lies. While as section 102 puts it in negative terms. The burden of proof lies on the
party who substantially asserts the affirmative of the issue and not upon the party
who denies it. This rule of convenience has been adopted in practice, not because it
is impossible to prove a negative, but because the negative does not admit of the
direct and simple proof of the existence of a fact, should be called upon to prove
his own case. The party on whom burden of proof lies must, in order to succeed ,
establish a prima facie case. He cannot, on failure to do so, take advantage of the

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weakness of his adversary’s case. He must succeed by the strength of his own
right and and the clearness of his own proof. The expression burden of proof has to
meanings: 1) the legal burden i.e, the burden of establishing case.2) the evidential
burden , i.e, the burden of leading evidence. In criminal cases burden of establishing
the charge against the accused lies on the prosecution. Here it is not the accused
who has to prove his innocence because he is presumed to be innocent till his guilt
is proved. That is why prosecution has to prove his case and section 101 comes into
operation. In civil cases burden of proof is on the party who asserts. But the
standard of proof required in civil cases is not that the plaintiff must prove a fact
beyond any shadow of doubt. In ascertaining which party is ascerting affirmative ,
the court looks to the substance and not the language used. Whoever complains
against the railway administration that the provisions of section 28 have been
contravened must establish that there has been preference between himself and his
goods on the one hand and the competitor and his goods on the other was held in
Raigarh Jute Mills Ltd. v/s Eastern Railway AIR 1958 SC 525.Section 101 of the
Evidence Act has clearly laid down that the burden of proving a fact always lying
upon the person who asserts the facts. Until such burden is discharged, the other
party is not required to be called upon to prove his case was held in Raj Kumar
Verma V/s Nandan Kumar & Ors. In Narayan Govind Gavate Etc vs State Of
Maharashtra on 11 October, 1977 court said, The result of a trial or proceeding is
determined by a weighing of the totality of facts and circumstances and
presumptions operating in favour of one party as against those which may tilt the,
balance in favour of another. Such weighment always takes place at the end of a
trial or proceeding which cannot, for purposes of this final weighment, be split up
into disjointed and disconnected parts simply because the requirements of
procedural regularity and logic, embodied in procedural law, prescribe a sequence, a
stage, and a mode of proof for each party tendering its evidence. What is weighed at
the end is one totality against another and not selected bits or scraps of evidence
against each other. In absence of any reasonable proof that defendant was the actual
owner of the property, and plaintiff was only a name given does not prove that
respondent was owner and plaint maker was only a name given to the property was
held in Rama Kanta Jain v. M.S. Jain, AIR 1999 Del 281. What to be proved by
prosecution is well settled that the prosecution can succeed by substantially proving
the very story it alleges. It must stand on its own legs. It cannot take advantage of
the weakness of the defence. Nor can the court on its own make out a new case for
the prosecution and convict the accused on that basis; Narain Singh v. State, (1997)
2 Crimes 464 (Del)."

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 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.
Illustrations
(a) 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.

(b) 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.
This section lays down the general test of the burden of proof .Accordingly,
burden of proof lies on the party whose case would fail if no evidence were given
on either side. Actually section tries to locate on whom burden of proof lies
.Illustration shows that the section deals with legal burden of proof. Sometimes
evidence coming from the side of the respondents, in the form of either their
admissions or conduct or failure to controvert, may strengthen or tend to support a
petitioners or plaintiffs case so much that the heavier burden of proving a case as
distinguished from the mere duty of introducing or showing the existence of some
evidence on record stated in section 102 is itself discharged. It relates to the leading
of evidence and “decides the controversy between the parties as to who is to lead
evidence first and so it is only procedural matter.” A sues В for land of which В is
in possession, and which, as A asserts, was left to A by the will of C, B’s father.
Here A must prove the will of C. If no evidence were given on either side В would
be entitled to retain his possession of the land. [Illustration (a)].In an election
petition the petitioner failed to prove as to what proportion of the total votes cast in
favour of a wrongfully accepted candidate. The Supreme Court rejected the election
petition. When a party to a suit does not give evidence and does not offer himself
for cross-examination, a presumption would arrive that the case set up by him is not
correct. The plea that the structures were to be excluded, the onus would be on
person alleging such exclusion. In C.P. Sreekumar (Dr) v S. Ramanujam ’ it was
held that onus of proving medical negligence lies on the complainant. Mere
averment in complaint is not evidence. Complaint has to be proved by cogent
evidence. The complainant is obliged to provide facta probanda as well as facta
probantia. In Sanjay S. Jaipuria, Mumbai vs Department Of Income Tax on 12
April, 2012"On the facts and in the circumstances of the case and in law, the
Ld.CIT(A) has erred in deleting the additions made by A.O. on Sundry Creditors of
Rs. 2,34,247/-, ignoring that as per section 102 of the Evidence Act, the burden of
proof lies on the assesses to prove before the A.O."

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 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.

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. B wishes the Court to believe that, at the
time in question, he was elsewhere. He must prove it.

Section 103 of the Evidence Act provides that burden of proof of any particular fact
lies on the person who wishes the court to believe in its existence. In State of
Haryana v. Sher Singh, AIR 1981 SC 1021:. When accused takes Plea of alibi it is
he who has to prove it. In Ramadhar And Anr. vs Raj Narain And Ors. on 16
July, 1929 court held that. Under Section 93, Evidence Act, evidence may not be
produced to show what was the meaning of the parties. The clause therefore remains
ineffectual, so far as its application to the interest is concerned. The defendant bases
his plea of limitation on this clause, alleging that owing to a breach of the covenant
for the payment of interest the cause of action arose more than twelve years before
the date of suit. Under Section 103, Evidence Act, the burden of proof that this
was a term of the contract lay on the defendant. The defendant has failed to
discharge that burden of proof. His plea of limitation therefore fails. The lower
appellate Court has dismissed the appeal of the plaintiff on the ground of limitation
only. Accordingly the decree of the lower appellate Court should be set aside and
the appeal remanded for disposal. In Union Of India Thru General ... vs Smt. Ram
Jhari Devi And 2 Ors on 13 July, 2010 (i) a railway servant on duty : and
(ii) a person who has purchased a valid ticket for traveling , by a train carrying
passengers, on any date or a valid platform ticket and becomes a victim of an
untoward incident.) In the present case since it is the appellant who claims defence
under the exception of Section 124 A with submission with regard to existence of
the related fact, burden lies on the appellant to establish with cogent and trustworthy
evidence. Appellant had not discharged its burden under Section 103 of the
Evidence Act, hence plea with regard to exception seems to be not available. The
railway act is a beneficial provision and it is settled law that while dealing with the
beneficial provision when two views are possible the one of which favours the
beneficiary should be adopted vide 2004 (10) SCC 201, State of West Bengal Vs.
Kesoram Industries Ltd; AIR 2000 SC 109 Mathuram Agarwal Vs. State of M.P.;
1999 (7) SCC 106, Mysore Minerals limited M.G. Road, Bangalore Vs. CIT
Karnataka Banglore. Thus, the burden to prove that the accidental case falls within
the exception of 124 A of the Act rest on the shoulder of railways.

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 SECTION 104 : Burden of proving fact to be proved to make evidence
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.

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.

Whenever it is necessary to prove any fact, in order to render evidence of any

other fact admissible, the burden of proving that fact is on the person who wants to
give such evidence. In illustration a dying declaration of deceased to be proved but
before that death of victim is to be established/proved. Section 104 of Evidence Act
mandates that the burden is on the person who takes up the plea of adverse
possession as that plea goes to the root of the title of the plaintiffs. It is to be
remembered that a person who takes up a plea of adverse possession must
necessarily admit the title of the adversary. Without there being an admission of the
title of the adversary, there cannot be a plea of adverse possession. Apart from this,
the plea of adverse possession is a weak plea, more especially, when the parties are
closely related. Assuming that the pleading in the plaint has reflected adequate
details of fraud, it needs to be examined as to whether the plaintiff and
defendants 1 and 2 have proved them. It hardly needs any mention that apart from
the general burden on a plaintiff to prove the facts pleaded by him, Section 104 of
the Evidence Act squarely puts the burden upon the person, who pleads fraud or
other similar factors, to prove them, without even giving any scope for shifting of
the onus, much less burden.

SECTION 105: Burden of proving that case of accused comes within

exceptions.—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, (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.

Illustrations
(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.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he
was deprived of the power of self-control. The burden of proof is on A.

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(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever,
except in the case provided for by section 335, voluntarily causes grievous hurt,
shall be subject to certain punishments. A is charged with voluntarily causing
grievous hurt under section 325. The burden of proving the circumstances bringing
the case under section 335 lies on A.

This section is applicable to criminal cases. An accused is presumed to be innocent

till his guilt is proved and burden lies on prosecution to prove his guilt. But when
accused raise the benefit of exceptions burden lies on him to prove exceptions.
When accused takes the Plea of self-defence and When the prosecution has
established its case, it is incumbent upon the accused, under section 105 to establish
the case of his private defence by showing probability was held in Samuthram alias
Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185 (Mad). The burden of
establishing the plea of self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in favour of that plea on the
basis of material on record; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.
In Parbhoo And Ors. vs Emperor on 16 September, 1941 . The first question to
consider is whether or not the expression "burden of proving" in Section 105,
Evidence Act, bears the meaning which would ordinarily attach to these words,
namely the burden of satisfying the Court that such circumstances existed at the
time when the act was committed as would entitle the accused person to the
protection which is afforded by Section 96, Penal Code or any other exception-or
whether, as held by the Full Bench of the Rangoon High Court Emperor v. U
Damapala ('37) 24 A.I.R. 1937 Rang. 83, the burden will be discharged if the
accused person, either by his own statement or by facts elicited in the evidence for
the prosecution or by evidence adduced by himself or by all or some of these means,
has been able to engender a reasonable doubt in the mind of the Court. "Burden of
proof" may in some circum-stances mean the burden of introducing evidence.If the
Court considers that the fact that A caused B's death is not proved in accordance
with the terms of the definition, then it will decide that A did not cause B's death
because the burden of proof is on the prosecution and the prosecution has to prove
the fact that he did so. The same principles would apply to the question whether A
intended to cause B's death. On the other hand, when the Court has to decide
whether A, at the time of doing the act which caused B's death was, by reason of
unsoundness of mind incapable of knowing its nature, it will, under the provisions
of Section 105, Evidence Act, throw the burden of proof upon the accused. If it is
not satisfied that A was of unsound mind or that it was not probable that A was of
unsound mind that a prudent man would suppose that he was, then it will hold once
and for all upon this issue that the fact that A was of un-sound mind is not proved
and it will consequently act upon the supposition that he was of sound mind. It

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cannot record different findings or come to different conclusions upon the issue. If
the burden of proving the proposition that A was of unsound mind is upon the
accused, then the accused must prove it In K.M. Nanavati v. State of Maharashtra,
[1962] Suppl. 1 SCR 567 it is observed that: "In India, as it is in England, 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; to put it in other words, the
accused is presumed to be innocent until his guilt is established by the prosecution.
But when an accused relies upon the General Exceptions in the Indian Penal Code
or on any special exception or proviso contained in any other part of the Penal
Code, or in any law defining an offence, Section 105 of the Evidence Act raises a
presumption against the accused and also throws a burden on him to rebut the said
presumption.
Under that Section the Courts shall presume the absence of circumstances
bringing the case within any of the exceptions, that is, the Court shall regard the
nonexistence of such circumstances as proved till they are disproved... But the
section does not in any way affect the burden that lies on the prosecution to prove
all the ingredients, of the offence with which the accused is charged; that burden
never shifts. The alleged conflict between the general burden which lies on the
prosecution and the special burden imposed on the accused under Section 105 of the
Evidence Act is more imaginary than real. Indeed, there is no conflict at all."

SECTION 106: Burden of proving facts especially within knowledge.

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

Illustrations:
(a) 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.

(b) A is charged with travelling on a railway without a ticket. The burden of proving
that he had a ticket is on him.
This section lays down the principle that where a fact is specially within the
knowledge of a party, the burden of proving that fact lies upon him. The fact may be
affirmative or negative character. In Grand Vasant Residents Welfare ... vs
Dda & Ors. on 5 March, 2014 reference was made of the decision reported as
(1974) 2 SCC 544 Collector of Customs, Madras vs D. Bhoormull, proceedings
were initiated under Section 167(8)(c) of the Customs Act for confiscation of
contraband or smuggled goods and it was observed:- Since it is exceedingly
difficult, if not absolutely impossible for the prosecution to prove facts which are
especially within the knowledge of the accused, it is not obliged to prove them as

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part of its primary burden. On the principle underlying Section 106 Evidence Act,
the burden to establish those facts is cast on the person concerned; and if he fails to
establish or explain those facts, an adverse inference of facts may arise against him,
which coupled with the presumptive evidence adduced by the prosecution or the
Department would rebut the initial presumption of innocence in favour of that
person, and in the result prove him guilty."

SECTION 107 : Burden of proving death of person known to have been

alive within thirty years.—When the question is whether a man is alive or dead,
and it is shown that he was alive within thirty years, the burden of proving that he is
dead is on the person who affirms it. This section is based on the principle of the
continuity of the things. Once a state of things is shown to exist, the law presumes
that it constinues to exist for a period for which such state of things ordinary lasts.
This principle also applies to continuity of the life atleast for 30 years. In Lilly
Packiamani Aruldoss vs The Accountant General (A&E) on 23 February, 2011"The
above case was registered by Puthiamputhur Police. Now after due investigation, a
final report was filed and the case as Un Report perused. There is no material to
interfere give the finding of the investigating officer. So the report is accepted and
the case is referred as UN." At this stage, this Court pertinently points out that
Section 107 of the Indian Evidence Act, 1872, refers to the burden of proving death
of person known to have been alive within thirty years. As a matter of fact, the
ingredients of Section 107 of the Indian Evidence Act, 1872 are as follows: "When
the question is whether a man is alive or dead, and it is shown that he was
alive within thirty years, the burden of proving that he is dead is on the person who
affirms it.

SECTION 108: Burden of proving that person is alive who has not been
heard of for seven years.—[Provided that when] the question is whether a man is
alive or dead, and it is proved that he has not been heard of for seven years by those
who would naturally have heard of him if he had been alive, the burden of proving
that he is alive is [shifted to] the person who affirms it.—[Provided that when] the
question is whether a man is alive or dead, and it is proved that he has not been
heard of for seven years by those who would naturally have heard of him if he had
been alive, the burden of proving that he is alive is [shifted to] the person who
affirms it."
Section 108 is proviso to section 107.The presumption under section 107 is
rebuttable, that is if it is shown that he has not been heard of for last seven years by
those who, if it had been alive, would naturally have heard of him. ". In the matter
of similar question had arisen for determination of this Court and this Court while
placing an interpretation on the said provisions and their applicability to the matter
at issue held that the presumption about the death of the person can at the earliest

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be drawn when the dispute is brought to the Court and the presumption cannot be
given a further retrospective effect. This Court has further held that it is so because
the occasion for drawing a presumption under the provision arises when the
dispute regarding the death of a person who has been unheard of for seven years is
raised in a Court of law and it is only then that the question of burden of proof
would arise under the Evidence Act. Section 108 obviously relates to the question of
burden of proof in a matter before a Court of law. In Gurdit Singh And Ors. Etc vs
Munsha Singh And Ors. Etc on 29 November, 1976" court held that the plain fact of
the matter is that no proof is forthcoming of Kishan Singh continued existence since
1945. Since the judgment of the High Court in 1951, where it was held that the
death of Kishan Singh had not been not proved, 8 years have elapsed. There can be
no. escape from the conclusion now that Kishan Singh's death must be
presumed". The learned Single Judge had also observed: "The decision of the High
Court in 1951 should provide a suitable ground for extension of time under
provisions of Section 14 of the Indian Limitation Act. The whole basis of the
judgment of the Courts below, in my opinion, is erroneous. It is not a requirement of
section 108 of the Indian Evidence Act that the date of death of the person whose
death is presumed must be established. All that is said is that if a person is not heard
of for a period of seven years, his death may be pre- sumed. There is no
presumption as to the time of death at any particular time within that period

SECTION 109: Burden of proof as to relationship in the cases of partners,

landlord and tenant, principal and agent. When the question is whether persons are
partners, landlord and tenant, or principal and agent, and it has been shown that they
have been acting as such, the burden of proving that they do not stand, or have
ceased to stand, to each other in those relationships respectively, is on the person
who affirms it.

SECTION 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.

SECTION 111: Proof of good faith in transactions where one party is in

relation of active confidence
Where there is a question as to the good faith of a transaction between parties,
one of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position of active
confidence.

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 Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit
brought by the client. The burden of proving the good faith of the transaction is on
the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question
in a suit brought by the son. The burden of proving the good faith of the transaction
is on the father.

SECTION 112: Birth during marriage conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be shown that the parties to the marriage
had no access to each other at any time when he could have been begotten.

SECTION 114: Court may presume existence of certain facts

The court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the particular case.

Illustrations
The Court may presume –
(a) that a man who is in possession of stolen goods soon after the theft, is either
the thief or has received the goods knowing them to be stolen, unless he can account
for his possession;
(b) that an accomplice is unworthy of credit, unless he is corroborated in
material particulars;
(c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
(d) that a thing or state of things which has been shown to be in existence
within a period shorter than that within which such things or states of things usually
cease to exist, is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it;
(h) that, if a man refuses to answer a question which he is not compelled to
answer by law, the answer, if given, would be unfavourable to him;

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 (i) that when a document creating an obligation is in the hands of the obligor,
the obligation has been discharged.
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case before
it:–
as to illustration (a) –A shop-keeper has in his till a marked Taka soon after it
was stolen, and cannot account for its possession specifically, but is continually
receiving Taka in the course of his business:
as to illustration (b)–A, a person of the highest character, is tried for causing a
men's death by an act of negligence in arranging certain machinery. B, a person of
equally good character, who also took part in the arrangement, describes precisely
what was done, and admits and explains the common carelessness of A and himself:
as to illustration (b)–a crime is committed by several persons. A, B and C, three
of the criminals, are captured on the spot and kept apart from each other. Each gives
an account of the crime implicating D, and the accounts corroborate each other in
such a manner as to render previous concert highly improbable:
as to illustration (c)–A, the drawer of a bill of exchange, was a man of
business. B, the acceptor, was a young and ignorant person, completely under A's
influence:
as to illustration (d)–it is proved that a river ran in a certain course five years
ago, but it is known that there have been floods since that time which might change
its course:
as to illustration (e)–a judicial act, the regularity of which is in question, was
performed under exceptional circumstances:
as to illustration (f)–the question is, whether a letter was received. It is shown
to have been posted, but the usual course of the post was interrupted by
disturbances:
as to illustration (g)–a man refuses to produce document which would bear on a
contract of small importance on which he is sued, but which might also injure the
feelings and reputation of his family:
as to illustration (h)–a man refuses to answer a question which he is not
compelled by law to answer, but the answer to it might cause loss to him in matters
unconnected with the matter in relation to which it is asked:
as to illustration (i)–a bond is in possession of the obligor, but the
circumstances of the case are such that he may have stolen it.

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 Changing trends of the Supreme Court of India

Generally, the burden of proof is upon the prosecution to prove that he has
suffered an injury or he has been affected beyond a reasonable doubt. This is
because it is said that the one who institutes the case can provide the best evidence
before the court. But in the case of heinous crimes such as rape, etc, this legal
burden lies upon the accused to prove his innocence. These are some of the
exceptions to this concept. This means that any of the parties will not be excused
from proving his liability or burden of proof. Thus, there are two types of burden of
proof. In the first case where it is based on law and pleading, the burden of proof
remains the same and does not shift to the other party in any circumstances. While
in the other case it is based on adducing evidence, the burden of proof may shift
constantly during the trial.
India is a common law country. Many times it’s observed that there have been
different principles in similar kinds of situations. Such as some jurisdiction has
neglected the component of men’s rea in criminal cases or in some cases the court
has shifted the burden of proof from the prosecution to the accused. This has created
the wrong impression of India of being inconsistent in following the principles of
the common law system. However, these trends are not permanent and are for the
development and the security of society. It is important to understand the reason
behind these changing trends so that this may not impact the credibility of this
system. Therefore, here is the periodical case study to understand these changing
trends through case laws decided by the Supreme Court of India.

Kali Ram v. State of Himachal Pradesh (1973)

The accused Kali Ram was charged in the Court of Sessions Judge for an
offense under Section 302, Indian Penal Code for the murder of one Dhianu and his
daughter Nanti. He was also charged for the offense of robbery. The Sessions Judge
convicted him and sentenced him to death. On appeal, the High Court also
confirmed his conviction and sentence passed by Sessions Judge was based on three
pieces of evidence, that is first the evidence of a witness recorded by police over
two months after the occurrence, secondly, the letter written by an accused to the
Deputy Commissioner making a confession of his guilt and lastly an extra-judicial
confession made to Sahi Ram who incorporated the letter to the Station House
Officer. Further, the accused filed a Special Leave Petition (SLP) before the
Supreme Court.
The issue arose in this case regarding the innocence of the accused based on
the benefit of the doubt. The Supreme Court in the above case rejected all the
sentences given by the trial court and the high court and gave the benefit of doubt to
the accused.

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 Further, the Supreme Court in the above case was of the view that the system
works on the principle that any person is considered to be innocent unless he or she
is proven to be guilty. This means an accused is presumed to be innocent unless that
presumption is rebutted by the prosecution by producing evidence against the
accused which makes him guilty of the specific charge. Hence the court cannot find
an accused to be guilty until proven by the prosecution.
Another observation that the court opined was whenever there are two views,
one favoring the accused and the other against the accused, then the view which is
favorable to the accused shall be adopted. This principle is applied in special cases
where the offense of an accused needs to be proven on the basis of circumstantial
evidence. Thus, it was accepted that whenever the court finds reasonable doubt
about the guilt of an accused, the accused must get the benefit of such doubt.
Based on the above principle the learned judge observed that such decisions
may benefit wrongful acquittals and can lessen the trust of the people of the society
in the judicial system, however, the conviction of a single innocent person is a more
serious offense than any other. India follows the principle that even if thousands of
guilty men may be relieved from the punishment but one innocent shall not suffer
the false conviction. For such conditions, it is very important to have strict
adherence by the neutral and independent judges to the basic principles of
presumption of innocence, and the burden of proof needs the perfect balance of the
trial procedures. The judicial system of India has reposed much faith in these
impartial judges and therefore to protect the country against wrongful acquittals and
unlawful convictions, has provided them with special powers against such abuse
under Section 165 of the Act.

Scope of Section 105 of the Indian Evidence Act, 1872

Whenever an accused is charged against any criminal act, then the burden of
proving the conditions that brought the charge of the case under any of the general
exceptions provided under the Indian Penal Code, or under any other special laws, is
upon the accused. Under this Section, the prosecution has to just establish the guilt
of the accused and once the guilt is proven, the burden then shifts upon the accused
who has the benefit to take the defense of general exceptions in IPC or Criminal
Procedure Code. This is one of the special characteristics which applies only in
criminal cases. Hence, as per Section 105 of the Act, the burden of proof is upon the
accused.
The legal burden of the accused is not similar to the legal burden of the
prosecution. The principle evidence has to be proved by the prosecution only. The
accused has to only prove his case by the standard of ‘preponderance of probability’
which is the supposition of the existing actual facts. Thus this provision of the Act
gives an opportunity to claim the defense under the general exception and also has
to be examined by the standard of preponderance of probability.

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 In the case of KM Nanavati v. State of Maharashtra (1962), Nanavati was
charged for the murder of Prem (the deceased defendant). Nanavati claimed the
defense of grave and sudden provocation. The Supreme Court, in this case, held
that, as per general rule, there is a presumption of innocence in the favour of the
accused and the prosecution has to prove the legal burden. But when the accused
claimed the general exception under IPC, Section 105 comes into the picture and
shifts the burden of proof upon the accused to rebut the presumption. Hence in the
above case, the accused failed to prove his grave and sudden provocation and was
convicted of murder.
Need for a change in the outlook of presumption of innocence
The presumption of innocence is a concept which means every person or an
individual is innocent until proven guilty. Justice Thomas in the case of State of
West Bengal v. Mohd. Omar (2002) has explained the need to change the outlook of
this concept. According to him, the traditional approach that the burden of proof
will always lie upon the prosecution would only benefit the accused of the heinous
crimes and would create casualties for the society. In such cases where the
prosecutor is successful in proving certain facts of the case, the court has to presume
the existence of the facts and has to rely on such circumstances. In other words,
when the court is satisfied with the proof provided by the prosecution, then the
burden of proof shifts to the accused as it is observed that it is only the accused who
knows every incident that has been committed. This is also known as the reverse
onus clause.
The above principle is laid down under Section 106 of the court. According to
this section, when any fact is within the knowledge of any person, the burden of
proving that fact is upon that person. This does not relieve the prosecution from
proving his burden beyond the reasonable doubt but, would apply in cases where all
the facts are proven by the prosecutor successfully and can establish certain other
important facts about which the accused have perfect knowledge and has failed to
put forth any explanation regarding such facts of the case that may help the court to
make appropriate judgment. Hence, this provision gives another chance to the
accused to defend himself by rebutting the presumption of the fact as such facts are
within the accused’s special knowledge.

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 Development in Section 106 of the Act
Section 106 promotes the idea of a fair trial where it becomes easy to prove all
the possible facts and have no burden to prove something that is impossible and
benefit the accused. Also, it provides the opportunity for the accused to rebut the
presumption of facts which is derived from the series of facts. However, it is noticed
that the prosecution takes the disadvantage of this provision and tries to run away
from his responsibility to prove the legal burden.
The Supreme Court has clarified all the doubts arising out of this Section in the
case of Ram Gulam Chaudhary and Ors. v. State of Bihar (2001). It is held that all
the positive facts must be proven by the prosecution however, it is not responsible to
prove negative facts that something which is impossible or which is not within the
knowledge of the party. Hence, shifting of the burden is not a violation of any
statute or the provision of law as it helps in the establishment of truth which is
important for a fair trial.
Reasons for reversing the burden of proof with respect to development in
criminal cases
1. It helps in the prevention of offenses.
2. It provides protection to public welfare and maintains morality in
society.
3. It promotes fair trials.
4. Reduces the burden of the prosecution to prove negative facts and also
protects him from the inconvenience caused by criminal cases.
5. It secures judicial expediency and economy.
6. It is declared to be constitutionally rational by Indian Courts.

Conclusion
The concept of burden of proof is of broader value especially when it comes to
the prosecution. There have been two different stages. One in which the prosecution
has to prove the offense and the other in which the accused has to prove the general
exceptions, this has increased the burden on the prosecution. The prosecutor has to
prove the offense beyond reasonable doubt and also has to make sure that the case
does not fall within the general exceptions. It becomes more difficult in criminal
cases. This is due to the Indian judiciary system that follows the principle of
presumption of innocence as the degree of punishment in criminal cases is more
severe.
In our criminal justice system, there are many cases that have not ensured
successful conviction. As per the experts, it is due to the traditional approach by the
judges on the concept of presumption of innocence and requirement to prove mental
element. Therefore, the need was found to reverse the trends which are not violative

18
to any provision. However, it is important to ensure that these trends should not lose
the credibility and reputation of the Judges as impartial functionaries.
The issues related to the presumption of innocence give the Parliament an
unrestrained authority to enact the provision for reversing the burden of proof that
violates the presumption of innocence with exceptional clauses especially in the
case of heinous crimes of social-economic nature that impacts the wellbeing of the
society at large. The provision that brings balance between the general interest of
the community and the personal rights of an individual must be formulated.

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 Webliography

• www.wikipedia.org
• http://crlreview.in/doctrine-of-burden-of-proof1/
• https://www.srdlawnotes.com/2016/04/burden-of-proof.html
• https://www.lawnn.com/burden-of-proof/
• http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/Evidence%20UNIT_III.pdf
• https://blog.ipleaders.in/burden-proof-criminal-cases-changing-trends-supreme-
court-india/
• https://www.studocu.com/in/document/guru-gobind-singh-indraprastha-
university/law-of-evidence/burden-of-proof-short-notes/3452743
• https://www.investopedia.com/terms/b/burden-proof.asp
• https://indiankanoon.org/search/?formInput=burden%20of%20proof
• https://www.nals.org/blogpost/1359892/300369/Burden-of-Proof-An-Essay-of-
Definition
• https://www.ag.gov.au/crime/publications/commonwealth-criminal-code-guide-
practitioners-draft/part-26-proof-criminal-responsibility/division-13/131-legal-
burden-proof-prosecution

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