Indian Evidence Act - Burden of Proof

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Indian Evi dence Act - Bur den of Pr oof  

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Q. What do you understand by Burden of Proof? On whom the does the burden of  proof lie? State the rules of determining Burden of Proof in a suit or proceeding. When does the burden of proof shift to the other parties? Are there any exceptions? Genera enerall Concept of Burden of Proof  The respons ibility to to prove a thing is called burden of proof. When When a person is required to prove prove the existence or truthfulness truthfulness of a fact, he is sa said id to have the burden o f proving proving that fact. In In a cas e, many ma ny facts are allege al leged d and they need to be pro ved before the court can bas e its j udgm ent on su ch facts. facts. The burden of proof is the obligation on a party to establis h s uch facts facts in is sue or relevant relevant facts facts in a case to the required degree of certainty certainty in order to prove prove its cas e. For exampl exampl e, in a cas e of  mu rder, prosecution may allege that all the conditions cons tit tituting uting a m urder are fulfilled. All All s uch conditions are fact facts s in iss ue and there is an obli gation to prove prove their existence. This This obligation is a burden of proof. In In general, every party has to prove prov e a fact that goes in his fav favor or or agains t his op ponent, this this obligation is nothing but burden of proof. Section 101 defines burden of proof as follows - When a pers on is bound to prove prove the existence existence of any fact, fact, it is said that the the burden of proof lies on that person. The important question is who i s s uppose d to prove prove the various various facts alleged in a cas e. In In other words, on whom s hould the burden of proving a fact lie? The rules for allocation of burden of proof are governed primarily by the the provisions in Section 101 to 105. The The rules propounded by these these sections can be categorized categorized as General rules and Specific rules.

General rules Rule 1 - As per Section 101, spe 101,  spe cifies the basic rule ab out who is suppo sed to prove a fact. fact. It says that whoever whoever desires any Court to give give judgm ent as to any legal right or liabil ity dependent on the existence of facts facts which he ass erts, mus t prove prove that those facts exist. For For examp examp le, A desi res a Court to give give judgm ent that B shall be p unish ed for a crime which A says says B has comm itt itted. ed. A mus t prove prove that B has comm itt itted ed the crime. Another Another examp examp le - A desi res a C ourt to to give give judgm ent that he is entitled to to certain certain land in the poss ess ion of B, by reason of facts facts whi ch he ass erts, and which B denies, to be true. true. A mus t prove the existence of those facts. Facts can be put in two categories - those that positively aff Facts affirm irm som ething and those that deny som ething. For For exampl exampl e, the statement, "A is the owner of this land" is an affirmative affirmative s tat tateme eme nt, while "B is not the owner of this land" is a denial. The rule given in Section 101 m 101  m eans that the the person who as serts the affirmative affirmative of an iss ue, the burden of proof proof lies on his to prove prove it. Thus, Thus, the pers on who m akes the s tat tatem em ent that "A is the owner of the land", has the burden to prove it. it. This rule is useful for determi determi ning the owners hip of the initial burden. Whoever Whoever wis hes the court to to take certain certain action agains t the opposite party base d on cert certain ain facts, he ought to first prove those facts. However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs Legatt, 1836,, a landlord s uing the tenant ass erted that the tenant did not repair the house. Here, he was ass erting the negative. 1836 negative. But the sam e statement can als o be s aid affirmatively affirmatively as the tenant let the house dilapi date. In In this cas e, Lor Lord d ABINGER ABINGER obse rv rved ed that In ascertaining which party is ass erting the affirmativ affirmative e the court looks to the sub stance and not the language used . Looking at the subs tance of this this case, the plaintiff had to prove prove that the the prem ises were not repaired. Thus, the court should arrive arrive at the subs tance of the the is sue and s hould require that party to begin who i n s ubstance, though ma y not be in form, allege s the affirmative affirmative of the the is sue. Burden of Proof and Onus of Proof  The term term Burden of Proof is us ed in two difference difference s enses - the burden of proof as a ma tt tter er of law and pleading, and the burden of proof as a m att atter er of adducing evidence evidence als o called as onus. There is a subtle dis tinct tinction ion between burden of proof  www.hanumant.com/LOE- U ni t11- Bur denOfPr oof.html

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Indian Evidence Act - Burden of Proof  

and onus of proof, which was e xplained in the case of Ranchhodbhai vs Babubhai AIR 1982 . The first one i s the burden to prove the m ain contention of party requesting the a ction of the court, while the s econd one is the burden to produce actual evidence. The first one i s constant and is always upon the claim ant but the second one shifts to the other party as and when one party succes sfully produces evidence supporting its cas e. For exampl e, in a cas e where A is suing B for payment of his services, the burden of proof as a m atter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the s ervices were not up to the m ark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract. The next rule determines who has the onus of proof. Rule 2 - As p er Section 102, the burden of proof in a suit or proceeding lies on that person who woul d fail if no evidence at all were given on either side. The following i llus trations explain this point Illustration 1 - A sues B for land of which B is in pos ses sio n, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either s ide, B would be entitled to retain his poss ess ion. Therefore the burden of proof is on A. Illustration 2 - A sues B for money due on a bond. The execution of the bond is a dm itted, but B says that it was obtained by fraud, which A denies . If no evidence were given on ei ther side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. Rule 3 - As p er Section 103, the person who wants the court to believe in an all eged fact is the one who is suppos ed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. Another  examp le - B wis hes the Court to believe that, at the time in ques tion, he was els ewhere. He mu st prove it. Further, as specified in Section 104, if a person wants the court to believe in a fact that assum es the existence of another fact, it is up to the pers on to prove the other fact also. For example , A wis hes to prove a dying declaration b y B. A must prove B's death. A wis hes to prove, by secondary evidence, the contents of a los t document. A must prove that the docum ent has been los t.

Specific Rules These rules specifically put the burden on proving certain facts on particular persons Rule 1 - As p er Section 106, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him . When a person does an act with som e intention other than that which the character and circums tances of the act sugg est, the burden of proving that intention is upon him . For exampl e, A is charged with traveling o n a railway without a ticket. The burden of proving that he had a ticket is on him. Rules of Presumption - Section 107 and 108 sa y that if a person was known to be alive within 30 yrs the presum ption is that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if he had been alive, the presum ption is that the person is death. But no presum ption can be draw as to the time of death. Sections 109 establis hes the burden in case of s ome relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism , dowry death, and rape.

Exceptions Exception 1 - The general rule in criminal cases is that the accused i s pres um ed innocent. It is the prosecution who is required to establis h the guilt of the accused without any doubt. At the sam e time, the accused is not required to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. Section 105 specifies an exception to this general rule. When an accused claim s the benefit of the General Exception clauses of IPC, the burden of  proving that he is entitled to such benefit is upon him . For exampl e, if an accused claims the benefit of insanity in a murder  trial, it is up to the accused to prove that he was ins ane at the tim e of comm itting the crime. In the case of K M Nanavati vs State of Maharashtra, AIR 1962,  SC explained this poi nt. In this case, Nanavati was accused of murdering Prem Ahuja, his w ife's pa ramour, while Na navati claimed in nocence on account of grave and s udden provocation. The defence's claim was that when Nanavati met Prem at the latter's bedroom , Prem had j ust com e out of the bath dress ed only in a towel; an angry Nanavati swore a t Prem and proceeded to as k him if he intends to marry Sylvia and look after his children. Prem replied, "Will I m arry every wom an I s leep wi th?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed i n a brown packet, Nanavati too went for it and in the ens uing s cuffle, Prem's hand caused the gun to go off and instantly kill him . Here, SC held that there is a presum ption of innocence in favor of the accused as a general rule and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when an accused relies upon the gene ral exception or  proviso contained in any other part of the Penal Code, Section 105 of the Evidence Act raises a presu mption aga inst the www.hanumant.com/LOE-Unit11-BurdenOfProof.html

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accused and a lso throws a burden on hi m to rebut the said pres ump tion. Thus, it was upon the defence to prove that there existed a grave and sudden provocation. In abs ence of s uch proof, Nanavati was convicted of murder. Exception 2 - Admission - A fact which has been admitted by a party and which is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made the admission. For examp le, A was recorded as s aying that he comm itted theft at the said premis es. If A wants to deny this adm iss ion, the burden of proof rests on A to prove s o. Exception 3 - Presumptions  - Court presum es the existence of certain things. For exam ple, as per Section 107/108 , court presum es that a person is dead or alive based on h ow long he has not been heard of. Section 109, presum es that when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relations hip s till exists and anybody who contends that such relationship has ceased to exist has to provide proof. Section 110 presum es that the person who has the poss ess ion of a property is the owner of that property. As per Section 113A, When the ques tion is whether the commi ss ion of suicide b y a wom an had been a betted by her husb and or any relative of her husband a nd it is show n that she had com mi tted s uicide within a period of s even years from the date of her marriage and that her husband or  such relative of her hu sband had s ubjected her to cruelty, the court may presum e, having regard to al l the other  circums tances of the case, that such s uicide had be en abetted by her hus band or by such relative of her hus band. As per  Section 113B, when the question is whether a person has comm itted the dowry death of a wom an and it is s hown that soon before her death such wom an had been s ubjected by such pers on to cruelty or harass me nt for, or in connection with, any dem and for dowry, the court shall pres ume that such person had caused the dowry death. Thus, when the presumption of the court is in favor of a party, the burden of disproving it rests on the opposite party.

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