Burden of Proof in under Indian Evidence Act, 1872.
Whenever a fact has been given in evidence, first question is as to whose obligation or duty
it is to prove that fact.
Part III, Chapter 7 of Indian Evidence Act, 1872 answers the same. Sec. 101-111 provides certain rules in relation to burden of proof.
What is Burden of Proof?
Burden of proof means an obligation to prove a fact. The general rule of evidence is that
who asserts a fact must prove it. BOP is the legal obligation to adduce evidence to the
satisfaction of the court in order to establish the existence or non-existence of a fact
contended by a party.
In civil cases, a fact is proved by preponderance of probabilities and not beyond reasonable doubt.
In criminal cases, it is to be proved beyond reasonable doubt.
Sec 101-103 deals with Burden of proof in general.
Sec 104-111 special rules of evidence where BOP is placed on a specific individual.
Basis of Burden of Proof-
The concept of BOP is based on the maxim-
" Ei incumbit qui delicit con qui negat "
which means "BOP lies upon who asserts, not who denies."
In Criminal cases- In criminal cases, Burden lies on prosecution to prove that accused is guilty of crime with which he is charged beyond reasonable doubt.
The court starts with the presumption that accused is innocent. Once prosecution has satisfied the court of fact that accused committed the crime of which he is charged, the onus shifts to accused as to why he should not be punished for it. This evidential onus keeps shifting during the cause of proceeding.
Definition of Burden of Proof [Sec 101]
Sec 101 defines Burden of proof as when a person is bound to prove the existence of any
fact, it is said that BOP lies on that person.
From the point of view of BOP, facts can be put in two categories-
(i) which positively affirm a fact.
(ii) which denies it.
Illustration - A desires a court to give judgement that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. Sec 101 applies to both civil and criminal cases.
Ranchodbhai Somabhai vs Babubhai, AIR 1982 Guj.
The Gujarat HC exemplified a distinction between burden and onus. BOP lies on person who has to prove a fact and never shifts. Onus of proof shifts and such shifting is a continuous process.
On whom burden of proof lies? Section 102
Section 102 tries to locate the party on whom the burden of proof lies. During a suit or proceedings the burden of proof lies upon the party whose case would fail if no evidence were given on either side.
K. Kusuma Kumari vs Gandhi Surya Bhagwan, 1982 AP.
It was held by the court that in cases of insanity of mind burden of proving that fact lies
on the person who wants to rely on it. Law presumes sanity.
The principal given in section 102 verify the fact that burden of proof lies on the party who affirms a fact rather than upon one who denies it.
Burden of proof as to particular fact- section 103
Section 103 is based on the principle that whenever a party wishes the court to believe and to act upon the existence of a fact, burden lies upon him to prove that effect ,whether that factor is negative or affirmative.
On which proceedings Evidence Act not applicable?
- In disciplinary proceedings, burden of proof is neither always nor necessarily on department. Evidence Act is not applicable on such proceeding.
- Evidence Act not applicable on industrial disputes tried by tribunals under Industrial Disputes Act, 1947.
- Evidence Act non applicable on domestic enquiry. The standard of proof there is preponderance of probability.
Sher Singh @ Pratapa vs State of Haryana, 2015 SC
Supreme Court made a distinction as burden of prove between legal burden and evidencial burden. The court held that general rule is defendant is presumed to be innocent until proven guilty. Therefore burden lies on prosecution to establish both actus reus and men's rea. If it cannot satisfy its burden defence may submit there is no case to answer.
Proof of fact on which evidence becomes admissible: Section 104
Section 104 is based on the principle that where admissibility of one fact depends upon
the proof of another fact, the party who wants to prove it will have to prove the fact
on which admissibility depends.
Illustration - A wishes to prove a dying declaration by B. A must prove B's death.
Burden of proving exceptions in criminal cases : Section 105
Section 105 applies only to criminal proceedings. It provides that if the accused claims
that his case comes within any of recognised exceptions, burden of proving that lies on
The principle is once prosecution has proved beyond the reasonable doubt that accused is guilty and he takes any defence burden of proving such fact lies on him given under –
- general exceptions in IPC
- special exceptions in IPC
- any other proviso contained in IPC.
Standard of proof:
The accused can prove his case on the basis of balance of probabilities.
K.M. Nanavati vs State of MH, 1962 SC
The SC of India held that once accused has taken defence under any of the exception, he has to prove it to the court on the basis of balance of probabilities and not beyond reasonable doubt. In this case, accused was not able to prove his defence and was convicted.
Facts specially within knowledge of a party: Section 106
It provides that when any fact is specially within knowledge of any person burden of
proving that fact lies upon him.
Section 106 is an exception to general rule given in section 101.
Object of section 106-
Sec 106 is not intended to relieve prosecution of its burden and is designed only for
exceptional circumstances in which it is difficult for prosecution to establish facts
which are specially within knowledge of accused.
Principle involved in section 106 is Res Ipsa Loquitor.
Joyeb Patra vs State of UP, 2013 SC
It was held that prosecution has to prove its case beyond reasonable doubt on first instance, it is only then that the accused can be required to prove any special knowledge under section 106.
State of HP vs Raj Kumar, 2018
If an accused does not throw light on a fact which is within his knowledge, his failure to offer any explanation would become a strong militating circusmtances against him.
Burden of Proving death of a person known to have been alive within 30 years: Section 107
Section 107 is based on general presumption of continuity of things. It provides if a person is shown alive within last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact.
Burden of proving a person is alive who has not been heard of for 7 years: Section 108
Section 108 gives presumption of death. It provides if a person is not heard of for 7
years, presumption is that he has died and if anybody alleges that he is still alive he
must prove that fact.
Precise time of death is not matter of presumption.
Sri Vidya Mandir Education Society vs Malleswaran Sangeetha Sabha,1995
It was held that there is no presumption of exact time of death and date of death has to be established on evidence by person who claims a right for the establishment of which that fact is essential.
Burden of proving as to relationship in case of partners, landlords and tenant, principle and agent - Section 109
Presumption against change of status quo-
Section 109 is based upon presumption of continuance of human affairs as they were. It says where certain persons are shown to have acted as partners or landlord and tenant or as principle and agent, law presumes them to be so related and burden of proving that they never so related or have ceased to be so shall Iie upon party who says so.
Burden of proof as to ownership: Section 110
It says if a person is shown to be in possession of something, there is presumption that
he is the owner. If anybody alleges that party in possession is not the owner, he must
prove the fact.
Possessor of property is presumed prima facie owner of it.
Proof of good faith in transactions where one party is in relation of active confidence: Section 111
General rule is all acts are presumed to be rightly done in the absence of fraud and
undue influence etc. Section 111 carves out an exception.
It says where the parties to a case are so related that one of them occupies the position of active confidence, law requires that party enjoying confidence must act in good faith towards other and burden lies upon him to prove he did act in good faith.
Relation of Trust includes parent and child, lawyer and client, director and Company, principal and agent, partner and firm, doctor and patient etc.
Daya Shankar vs Bachi, 1982
Plaintiff's uncle used to treat him as his own son, 80 year old. He fell ill and plaintiff admitted him in hospital. Within 8 days uncle executed a gift deed in the favour of plaintiff. It was held by the court that deed in favour of plaintiff was executed in abnormal circumstances and burden of proving good faith lies upon plaintiff.
Right to Privacy.
Right to privacy is a fundamental right inherent under Article 21 of Indian Constitution i.e. Right to life and personal liberty. It is a recognized human right under Article 12 of Universal Declaration of Human Rights,1948. Indian Supreme court recognised this right as fundamental right in the case of Puttaswamy v. Union of India, 2017.