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BURDEN OF PROOF

RESEARCH METHODLOGY
RELEVANCE OF THE TOPIC
This topic is very much relevant to our syllabus and use academically because burden of proof is an integral
part in both civil and criminal cases during the proceedings because it lay burden on the parties to proof a case
in high probabilities in civil cases and beyond reasonable doubt in criminal cases. Burden of proof provides for
high percentage of relevancy which could be used in exams per se because of its high usage in the court of law
to administer justice.
RESEARCH QUESTION
First question is to clearly lay down the meaning of Burden of proof provided in cases?
Second question is to find a clear distinction between burden of proof and onus of proof
Third question is to analyze shifting of burden in case of onus of proof
Fourth question is to compare the burden of proof in India with USA and UK
LIMITATIONS OF RESEARCH
The research has been limited to content of Burden of proof from section 102-107 where 101 has been
explained in general under chapter 1. The idea of keeping research limited to the above mentioned section was
to go in depth of specific section rather than explaining all the burden of proof sections in genera which
wouldnt have provided a clear analysis of the above mentioned section with substantial cases.
OBJECTIVES OF STUDY
To have a enhanced knowledge about the researched topic

To know the use of these sections in every possible circumstances and situations
To have a distinctive view about the burden of proof in different countries
CHAPTER 1-INTRODUCTION
EVOLUTION:
The early history of law of evidence in India can be traced back in Dharma Shastra as well as in Muslim and
English systems of law. It was always recognized by Dharma Shastra that the purpose of any trial is the desire
to ascertain truth. The early lawmakers recognized that trial often involved suppression of facts and appreciation
of falsehood. Therefore, Law of Evidence took every possible precaution, consistent with times to secure the
discovery of truth. The Indian law of evidence had attained by the time of the ancient Dharma Shastra, a
considerable degree of perfection and embedding many modern concepts.

The modern law of evidence, like many branches of our legal system, owes its inception to English Common
Law. Till the beginning of the 18th century most of the rules remained contained in rulings and dicta. A sort of
uncertainty was prevailing which was not only in the field of law of evidence but also in the other fields of law.
The first book on evidence was written by Chief Court Baron, Gibert which was published in 1756 after thirty
years of his death. Along with the reforms in English Law, in India too, after 1833 various legal reforms were
introduced. Between 1835 and 1853, a series of Acts were passed by the Indian legislature which introduced
some stray reforms in Indian law of evidence. Finally, after a lot of twists and turns a draft prepared by Sir
James Stiphen was introduced in the Council in Governor-General in India in 1871 and was duly enacted in
1872 which is the present Indian Evidence Act.
The Evidence Act extends to whole of India, except the State of Jammu and Kashmir. Such Act also have some
other limitations like, it applies to all judicial proceedings in or before any court including the Courts Martial,
other than Courts Martial under Army Act, Naval Discipline Act and Air Force Act.

INTRODUCTION:
The burden of proof is the imperative on a party in a trial to produce the evidence that will shift the conclusion
away from the default position to one's own position. The burden of proof is often associated with the
Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the
necessity of proof always lies with the person who lays charges."
He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to
support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the
burden of proof off to another party.
Illustrations of burden of proof(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.
The phrase burden of proof is not defined in the Act. It has two distinct and frequently confused meanings

1) The burden of proof as a matter of law and pleading-the burden, as it has been called of establishing a
case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the
affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings, or their
equivalent and it is settled as a question of law, remaining unchanged under any circumstance whatever.
This rule is embodied under Section 101.
2) The burden of proof as a matter of adducing evidence. The burden of proof in this sense is always
unstable and may shift constantly, throughout the trial, according as one scale of evidence or the other
preponderates.
According to Thayer, the phrase Burden of proof is used in three ways: i)To indicate the duty of bringing forward argument or evidence in support of a proposition at

the beginning

or later.
ii)To make that of establishing a proposition as against all counter argument or evidence
iii)An indiscriminate use in which it may mean either or both of the others.

CHAPTER 2-LEGAL ANALYSIS


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
Principal and Scope
This section embodies a test for ascertaining on which side the burden of proof lies. It means that when the
burden of proof lies on a party, that party must fail if he does not discharge the burden by giving evidence. 1 In
order to determine on which two litigants the burden of proof lies, the following test was suggested by Alderson
B, in Amos v. Hughes 1835, 1M which party would be successful if no evidence at all were given.
The best test for ascertaining on whom the burden of proof lies are to consider first which party would succeed
if no evidence were given on either side; and secondly, what would be the effect of striking out of the record the
allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued. 2 For
instance, if in an action brought by a landlord against his tenant, the breach of contract assigned be that
1 Radhamohan v. Kamaldhari A 1936 P 243
2 R.Jayalakshivama v. Election Tribunal-cum Senior civil Judge, Pungnur, 2004 (5) Andh LT 400 (AP)

premises were not kept in repair and this allegation is traversed by the statement of defense, the plaintiff must
prove his negative averment. The question as to whether the burden of proof has been discharged by a party to
the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if
otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite
conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce
direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.3
The burden rests upon the party who would fail if no evidence at all, no more evidence, as the case may be,
were adduced by either side. In other words, it rests, before any evidence whatever is given, upon the party, who
has the burden of proof on the pleadings, i.e. who asserts the affirmative of the issue and it rests, after evidence
is gone into, upon the party against whom, at the time the question arises, judgment would be given if no further
evidence was adduced by either side. Initial burden of proof is always on plaintiff who asserts certain facts. 4
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 proof of that fact shall lie on any particular person.
The question of onus of proof has greater force in an original trial, where the question is which party is to begin.
But where the trial has ended, and where the plaintiff has let in evidence on his own behalf the contention that
the onus was wrongly thrown loses all its force in an appeal. The question of onus becomes important and
material in appeal where only where the evidence is evenly balanced and conflicting, where that is the case that
party must fail, on whom the onus lay in the first instance.
Burden of proof and Onus probandi
The strict meaning of the term onus probandi, is this that if no evidence is given by the party on whom the
burden is cast, the issue must be found against him. The terms burden of proof and onus probandi are
sometimes confused. Where issues have been framed and the preliminary examination of the parties has taken
place the case rests at a certain point at which if no further evidence is led one party has to lose. On that party is
onus probandi sometimes called right to begin. Where, however, all evidence on both sides has been
recorded, a second state is reached and this is where the point of view of the judge comes in and it is necessary
to find where is the burden of proof. To determine this it is necessary to ascertain with precision upon what
proposition of fact or law the parties were at variance. 5
3 National Insurance Co Ltd v. Rattani (2009) 2 SCC 75 (79)
4 Pormanan v. Thiagarajan 2011 AIR CC 941 (Mad)
5 Pe v. Chettyar Firm, 145 IC 413: A 1933 R 211

Order 18, Rules 1 and 2 of CPC provide that the plaintiff has the right to begin and shall produce his evidence
in support of the issues which he is bound to prove. Therefore, other party shall produce his evidence. The right
to begin onus probandi as provided from Sec 101 to 114.
Shifting of burden
It lies at first on that party who would be unsuccessful if no evidence at all were given on either side. This being
the test, this burden of proof cant remain constant but must shift as soon as he produces evidence which prima
facie gives rise to a presumption in his favor. It may again shift back on him if the rebutting evidence produced
by his opponent preponderates. This being the position, the question as to onus of proof is only a rule for
deciding on whom the obligation rests of going further, if he wishes to win. As the proceedings go on, the
burden of proof may be shifted from the party on whom it is rested at first by proving facts which raise a
presumption in his favor. It is the same kind of duty for both parties, but it may rest at one time upon one party
and at another time upon the other. Moreover, neither party can ascertain absolutely beforehand at what time it
will come upon him or cease to be upon him, or by what evidence it will be removed or created, except so far as
a presumption has by a rule of law been laid down as determined the effect attached to certain facts.
It is not always easy to determine at what particular point the onus shifts from the plaintiff to the defendant and
then again from the defendant to the plaintiff and then once again from the latter to the former and so on; the
more so in contested proceedings as evidence gradually continues to be adduced, but at the conclusion of the
trial when the issues come to be judged it has to be seen, whether the initial onus which s.101 casts on the
plaintiff has been discharged, or not6
Burden to prove would be on plaintiff
The onus is on the plaintiff to positively establish its case on the best material available and it cannot rely on the
weakness or absence of defense to discharge such onus.7
Criminal Cases
Where the wife died due to burn injuries at house, the accused husband was the only present at the house at that
time, burden lies on the accused husband to explain the circumstances in which the wife died.8

6 Basiruddin v. Shahebulla 32 CWN 160


7 State of J&K v. Hindustan Forest Co. (2006) 12 SCC 198 (201)
8 Gajanan Gawade v. State of Maharashtra 2009 CrLJ (NOC) 85

Where the accused is alleged to be found in possession of the stolen property and misappropriated it, onus is on
the prosecution to prove that the property were stolen property and were misappropriated by the accused.9
The burden of establishing the plea of self-defense is on the accused but it is not as onerous as the one that lies
on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused
need not establish the plea of self-defense to the hilt and may discharge the onus by showing preponderance of
probabilities in favor of that plea on the basis of the material on record. Even in a case where the burden is on
the accused, it is well known, that the prosecution must prove the foundational facts.
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.
This section amplifies the general rule in s.101 that the burden of proof lies on the person who asserts the
affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular
fact, the onus of proving that fact is on him, unless the burden of proving it is cast by any law on any particular
person. Thus, in a case of theft or receiving stolen property, though the main burden of proof is throughout on
the prosecution, yet if the accused sets up a case that he innocently purchased the property from the market or a
particular person, he must prove it. Under s.44 of CrPC the public are bound to give information of the
commission of certain offences and the burden of proving reasonable excuse is by statute cast on the person
who fails to give information. Onus of proving lawful excuse has been cast upon the accused by various
statutes. Norton explains the distinction between s.101 and 103. By s.101 the party has to prove the whole of
facts which he alleges, to entitle him to judgment when the burden of proof is on him. S.103 provides for the
proof of some one particular fact.
The whole of facts, however, numerous and complicated, which go to make up the prisoners guilt, must be
proved by the prosecution. If the prisoner wishes to prove a particular fact, his alibi, for instance, he must prove
it. If the prosecution wishes to prove the case, not by independent oral testimony, but by the isolated fact of the
prisoners admission, or if he wishes to throw that in as an additional fact, he must prove it. Where the plaintiff
entrusted to the defendant launderers certain clothes which the defendant failed to return to the plaintiff on the
ground that the clothes were destroyed in fire, it was for the defendant to prove that he had taken due and proper
care of the goods but the same were destroyed by fire which did not take place due to any negligence on the part
of the defendant.10
9 Bhaskar Chandra Nayak v. State of Orissa 2009 CrLJ 3875 (3877) (Ori)
10 Deboo (R.S) v. M.V. Hindlekar A 1995 Bom 68

In probate cases, the burden of proving the testamentary capacity of the testator, and that he was of a sound
mind, lies upon the party propounding the will.
In A.S Rathiman v. A.S. Parnammal (2003) 2 MLJ 411 (Mad), the High Court observed:When the evidence required to be produced is accessible to the plaintiff who seeks to have adverse inference
drawn by reason of non-production of that evidence by the defendants, it is the duty of such plaintiff to produce
the evidence and the failure to do so cannot be got over by inviting the Court is attention to draw adverse
inference from the conduct of the defendants who had produced some evidence, but not all the evidence..
Where a wife dies within seven years of marriage in abnormal circumstances, the Court would presume the
death as Dowry death and the burden lies on the accused person to prove their innocence.11
Where the accused took the plea of Self-defense, had sent a letter to the superintendent of police with copy
thereof to the Inspector of Police, the receipt of which was admitted by the Investigating Officer, it was for the
investigating officer to show as to when it had been dispatched.12
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 Bs death.
Comments:
According to this section the admissibility of one fact depends upon the proof of another fact. It is a condition
precedent to prove the particular fact. Illustration (a) states that where a person wishes to prove a dying
declaration, he has to prove that the declaring has died.
The question as to whether burden of proof has been discharged by a party or not depends upon the fact and
circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on
record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom
burden of proof by would still be liable to produce direct evidence to establish that the deceased and the injured
passengers were gratituous passengers.

11 Lallu v. State of U.P 2009 CrLJ (NOC) 1009


12

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.
A judicial analysis of S.105 begins with the watershed decision of Parbhoo v. Emperor13 and ends with the
landmark three-judge bench decision in Vijayee Singh v. State of U.p 14though the Supreme Court on a number
of occasions and the Privy Council in Jayasena v.ReginamlO have thrown light on the debate, the single most
important influence has been Viscount Sankey's dictum in Woolmington v. D.P.P.l1 Some of the propositions
which have emerged out of the judicial opinions on S.105 are as follows:
1. The burden on the accused under S.105 is not so onerous as the burden on the prosecution, and can be
discharged by a balance of probabilities.
2. The burden on the accused in S.l05 can be discharged by creating a reasonable doubt as to whether he can
avail himself of the exception of S.10S.
3. The burden on the accused in S.l05 cannot be discharged by merely creating a reasonable doubt as to whether
he can avail himself of the benefits of the exception but in some cases an indirect acquittal can be secured if the
evidence on record creates a reasonable doubt as to the essential ingredients of the offence.
4. S.105 does not envisage the English situation wherein the Jury is left in reasonable doubt upon a review of all
the evidence even after the explanation of the accused as regards. More so, the whole concept of reasonable
doubt after the explanation by the accused, is wrong because the prosecution, in any event has to prove its case
beyond reasonable doubt at the very first instance.
In the light of the Supreme Court decisions which are law by virtue of Article 141 of the Constitution,
approaches 1 and 3 have been disapproved. In Parbhoo's case, the Full Bench of the Allahabad High Court
brought out two important propositions.
1) In the case of self defense, where the accused has failed to satisfy the court beyond a reasonable doubt, it
still remains open to the accused to use the evidence for showing a reasonable doubt as to the existence of the
exception itself and if a reasonable doubt is created as to the existence of exception, then it is sufficient to
secure an acquittal.
13 AIR 1941 All 402, hereinafter referred to as Parbhoo s case. .
14 AIR 1990 SC 1459,.), hereinafterreferred to as Vijayee Singh s case

2) Reading Ss.4 and 105 it is clear that the court shall presume the absence of such circumstances as 'proved'
unless and until they are 'disproved'. Where the accused is unable to discharge the burden by expressly proving
the existence of such circumstances or he is unable to discharge the burden of proving absence of such
circumstances, the case would fall in the category of 'not proved'. The court while presuming the absence of
such circumstances will bear in mind the general principle of criminal jurisprudence that the prosecution has to
prove its case beyond reasonable doubt and the benefit of every reasonable doubt should go the accused.15
The first point in Parbhoo's case came up for review in a nine judge bench of the Allahabad High Court in
Rishikesh Singh v. State16 which partly disagreed with the logic of Parbhoo as follows: "The majority in
Parbhoo's case was not right in assuming that the accused can secure an acquittal if he creates a reasonable
doubt as to the existence of exception. However in some cases the accused can secure an indirect acquittal,
because there may be cases where, although the exception has not been proved, the evidence on record creates a
doubt as regards some element which is the ingredient of the offence. So the court said that an acquittal can be
secured by firstly, the creation of a reasonable doubt as to the ingredient of the offence, and secondly, complete
proof of the exception on a preponderance of probabilities. In the same year, the Privy Council decided the Sri
Lankan case of Jayasena v. Reginam17wherein their lordships quoted with approval the dictum of Mudholkar J.,
in Bhikari v. State18 and Dayabhai's case19 and commented that the Woolmington logic may not be applicable in
codified systems of evidence law. The court was of the view that the very conceptual understanding of burden
of proof varies between England and the Indian subcontinent, (the latter being based more on Stephan's digest),
and that therefore, the propriety of importing common law doctrines and definitions into the Indian context was
questionable. Finally, the dissenting note of Macklin J. in the government of Bombay v. Sukur21 needs to be
considered "Though the absence of reasonable doubt is often the convenient way of expressing what is meant
by 'proof' it is not the real test. Once the prosecution has convinced the jury, the effect of S. 105 is that the
accused must prove to the jury that he has a right of private defense; if he does not prove that, then the act
established by the prosecution

stands as a criminal act and must be dealt with accordingly.

Constitutionalisation of the presumption of innocence and its impact on s.105


15 Vijayee Singh v. State, AIR 1990 SC 1472
16 AIR 1970 All 51
17 [1970J I All ER 219.
18 AIR 1966SC 1
19 (1965) 2 S.C.J. 53

In many jurisdictions all over the world the phenomenon of constitutionalisation of the general principles of
criminal law, and especially the constitutionalism of presumption of innocence is underway.
Perhaps the forerunner in this regard is The Canadian Charter of Rights and Freedoms which provides for a
constitutional guarantee of the presumption of innocence. As laid down by Justice Dickson in R v. Oaks 20 "the
presumption of innocence protects the fundamental liberty and human dignity of any and every person and if an
accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would
be possible to convict him despite the existence of a reasonable doubt. Similar utterances can be found in the
South African case of S v. Bhulwana 21However, in the United States, though there is no specific guarantee of
the presumption of innocence, the courts in re Winship and Mullany v. Wilbur expanded the due process clause
in the 5th and 14th amendments to constitutionalism the presumption innocence. However, the U.S. approach
demands that there be an offence-defense difference, and the protection only applies to tile true elements of the
offence. However, it would be sufficient to state that the American experience of the presumption of innocence,
though not so pronounced as in South Africa or Canada, needs to be noticed as it is one stage in the gradual
evolution of constitutionalisation and if the Indian experience is to graduate from the present static stage, it is
immediate perhaps the U.S. examples which require attention.
Section 106- Burden of proving fact especially within knowledge - when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon him.
Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible
for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
In Shambu Nath Mehrav. State of Ajmer, AIR 1956 SC 404, the learned Judge has stated the legal principle
thus:
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section
106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional
cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish
facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or
inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within
his knowledge."
Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in
20 26 DLR 200 (1986)
21 4 BCLR 401 (1995)

proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts,
unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which
might drive the court to draw a different inference.22
Section 106 is certainly not intended to relieve the prosecution of its initial onus. On the contrary, it is designed
to meet certain exceptional cases, in which it would be impossible or at any rate disproportionately difficult for
the prosecution to establish facts which were especially within the knowledge of the accused and which he
could prove without difficulty or inconvenience. It is not the law of the country that the prosecution has to
eliminate all possible evidence and circumstances, which may exonerate him. If those facts are within the
knowledge of the accused, then he has to prove them. To reiterate the prosecution has to establish a prima facie
case, in the first instance. It will not be enough to establish facts, which give rise to suspicion and then by
reason of section 106 of the Evidence Act, throw the onus on the accused to prove his innocence. Useful
reference can be made on this aspect to the law laid down by the Supreme Court in Shambhu Nath
Meherav. State of Ajmer, AIR 1956 SC 404: 1956 Cr LJ 794, and Krishna Kumarv. Union of India, AIR 1959
SC 1390: 1959 Cr LJ 1508. We are bound to state, that the burden cast on the accused is not so heavy as it is on
the prosecution.
This section enacts the second exception to the general rule that the burden of proof is on a party who
substantially asserts the affirmative of an issue. It is a general rule of evidence that the burden of proof lies on
the person who wishes to support his case by a particular fact which lies more peculiarly within his own
knowledge or of which he is supposed to be cognizant. The rule is of very general application; it holds good
whether the proof of the issue involves the proof of an affirmative or of a negative, and has even been allowed
to prevail against presumptions of law. It prevails in all civil or criminal proceedings instituted against parties
for doing acts which they are not permitted to do unless duly qualified. It holds good and compels the defendant
to produce the necessary licence of authority, as the case may be in proceedings for selling liquors offences
against the game laws, improperly exercising a trade or profession, and the like; and in actions for penalties
against the proprietor of a theatre, for performing dramatic pieces without the written consent of the author,
etc. The section only applies to the parties to the suit or proceeding, and is inapplicable where a fact is not
within the special knowledge of a party but of a witness.
In a criminal case, it is for the prosecution to prove the involvement of an accused beyond all reasonable doubt.
It was not a case where both, husband and wife, were last seen together inside a room. The incident might have
taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had
been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As
22 Sucha Singh v. State of Punjab, AIR 2001 SC 1436

they saw smoke coming out from the room, they rushed towards the same and broke open the door. In the
aforementioned situation section 106 cannot be said to have any application whatsoever.
Application of the rule to criminal cases
Section 106 of Evidence Act, no doubt, casts a duty on an accused to explain the circumstances that are within
his special knowledge about how an incident has taken place. But this section does not dispel the initial burden
on the prosecution to establish its case. Also the burden that is cast on the accused is never as heavy as that on
the prosecution. The extent of duty cast on the accused under section 106 of the Evidence Act is never as heavy
as on the prosecution and this has been appositely delineated by the Hon'ble Supreme Court in Sawal Das
v. State of Bihar, AIR 1974 SC 778: 1974 Cr LJ 664 which read as follows: "Learned counsel for the appellant
contended that section 106 of the Evidence Act could not be called in aid by the prosecution because that
section applied only where a fact relating to the actual commission of the offence is within the special
knowledge of the accused, such as the circumstances in which or the intention with which an accused did a
particular act alleged to constitute an offence. The language of section 106, Evidence Act does not warrant
putting such a narrow construction upon it. This Court held in Gurcharan Singhv. State of Punjab, AIR 1956 SC
460: 1956 Cr LJ 827, that the burden of proving a plea specifically set up by an accused, which may absolve
him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by
which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving
him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish
the guilt of an accused beyond reasonable doubt.
Neither an application of section 103 nor of section 106 of the Evidence Act could, however, absolve the
prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond
reasonable doubt. It is only when the prosecution has led evidence, which, if believed, will sustain a conviction,
or, which makes out a prima facie case, that the question arises of considering facts of which the burden of
proof may lie upon the accused.23
Though the provisions of this section are to be applied with great care and caution in criminal cases it cannot be
said that they have no application to them. The application of the rule enacted by section 106 of the Evidence
Act to criminal cases is often of considerable difficulty. The rule contemplates facts which, in their nature, are
such as to be within the knowledge of the accused and of nobody else; it has no application to cases where the
fact in question, having regard to its nature, is such as to be capable of being known not only by the accused but
also by others-if they happened to be present when it took place. It cannot be invoked to make up for the
inability of the prosecution to produce evidence of circumstances pointing to the guilty of the accused. The
23 Om Prakash v. State of Uttar Pradesh, 2004 Cr LJ 3939 All.

burden of proving knowledge of a particular fact when such knowledge is an ingredient of the offence charged,
is almost invariable on the prosecution and cannot be shifted to the accused merely on the ground that this is a
fact within his knowledge. Ordinarily, the burden of proving every ingredient of the offence even though
negative averments be involved therein, is on the prosecution:16 but it seems that, under this section, burden of
proving a fact would be upon the accused person if the subject of the averment, whether affirmative or negative,
is peculiarly within his knowledge. An accused person is always entitled to hold his tongue, but where the only
alternative theory to his guilt is a remote possibility, which, if correct, he is in a position to explain, it is for him
to prove that alterative theory, and if he does not do so, the omission will be considered in determining whether
the alternative theory should be disregarded or taken into account. But in a Sindh case in which the nature
of burden of proof, when such burden lies upon the accused, has been lucidly explained, it has been remarked
that section 106 was never intended to be used to place upon the accused the burden of proving his innocence.
The section is not a proviso to the rule that the burden of proving the guilt of the accused is upon the
prosecution. On the contrary the section is subject to that rule. The burden of proving a particular fact or a
particular defence is a different matter, section 106 does not enable the Judge to say to the jury that the accused
must explain this and that, or that he must satisfy him on this point or that or be found guilty. The section cannot
be used to determine the well established rule of law that save in very exceptional class of cases, the burden to
prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of
proving the guilt of an accused which always rests on the prosecution and it does not cast any burden on an
accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor
does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain,
he ought therefore to be found guilty. 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. Where a person
accused of lurking house trespass by night pleads in his defence that he had some specific intention in entering
the house, and that the intention in question was neither to commit an offence nor to intimidate, insult or annoy
any person in possession of the house, the provisions of section 106 of the Evidence Act come into play and the
burden of establishing the particular intent is upon the accused. Where the accused persons were arrested
outside the city of Agra at about midnight, all carrying arms concealed under their clothes, and none of them
could give any explanation of his presence at the spot, and in those days the district of Agra was notorious as the
scene of frequent and recent dacoities, it was held that, under this section, the burden of proving that the
intention of the accused was not to commit dacoity was on' the accused persons. Where property was entrusted
to a servant, it is the duty of the servant to give a true account of what he did with the property so entrusted to
him, and his failure to do so raises under this section a presumption that he had criminally misappropriated the
property so entrusted to him. Where an accused is granted a permit for steel and iron for a specific purpose and
undertakes to return the permit in case the purpose ceases to exist, he has a special knowledge and must show
that he utilized the material for the purpose for which it is granted.

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.
Comments:
Sections 107 and 108 have to be read together, because both the sections are complementary to each other.
Section 107 is based on the principle of continuity of life whereas Section 108 is regarded as proviso to Section
107. Whereas Section 107 deals with the presumption of continuance of life, Section 108 with the presumption
of death. Section 107 is merely a deduction from this presumption.
Principle:
Section 107 lays down that if a person is proved to have been alive within thirty years it shall be presumed that
he is alive and the burden of proving that he is dead, lies on that person who affirms that he is dead. This section
suggests that whenever a person in question is found to be alive within thirty years, irrespective of suggestion of
his being dead, the court shall presume that he is alive unless and until any positive proof of his being dead is
proved.
This is the presumption of continuity of life that person may be alive up to thirty years after he was last seen. If
a married woman wants to remarry she has to prove that her husband remains unheard for seven years (Section
108) or she has to wait up to thirty years. However, a person who was not heard for more than seven years
cannot be considered to be dead only on that day on which suit was filed.

CHAPTER 3-ROLE OF JUDICIARY


Judgement Analysis of :

Shambu Nath Mehra vs The State Of Ajmer 1956 AIR 40424


The appellantwas put up for trial under s.

420 of the Indian Penal Code and Sec.5(2) of the Prevention of

Corruption Act of 1947 for obtaining a total sum of Rs. 23-12-0 from the Government as T.A., being second
class railway fares for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus,
without having actually paid the said fares. The prosecution proved from the railway books and registers
that no such second class tickets were issued at Ajmer on the relevant dates and the same witness who proved
this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the
second class was fully booked, no further tickets were issued till the train arrived, in which case passengers
sometimes bought third class or inter-class tickets and thereafter paid the difference to the guard of the train, if
24 http://indiankanoon.org/doc/1032822/

they could find second class accommodation on the arrival of the train. There was no proof that one or other
-of those courses were
absence of any

not followed by the appellant and

the prosecution instead of proving the

such payments, in the same way as it had proved the non-issue of second class tickets,

relied on Illustration (b) to s.106 of the Evidence Act and contended that it was for the appellant to prove
that he had actually paid

the second class fares. Held, that Illustration (b) to s. 106 of the Evidence

Act

had no application, the evidence adduced by the prosecution did not warrant a conviction and the accused
should, having regard to the long lapse of time, be acquitted. That s. 106 of the Evidence Act does not abrogate
the well-established rule of criminal law that except in very exceptional classes of cases the burden that
lies on the prosecution to prove its case never shifts and s, 106 is not intended to relieve the prosecution of that
burden.' On the contrary,

it seeks to meet certain exceptional cases

where it

is impossible, or

disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of
the accused and which can be proved by him without difficulty or inconvenience. But when knowledge of such
facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be
especially within the knowledge of the accused and

the section cannot apply.

State of WB v Mir Mohammad Omar AIR 2000 SC 2988.


The relevant portion contained therein is being quoted herein under:The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be
taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The doctrine of
presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the
traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the
offenders in serious offences would be the major beneficiaries, and the society would be the casualty.
In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to
presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in
condition such as this. Presumption of fact is an inference as to the existence of one fact from the existence of
some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence
that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a
fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as
the most probable position. The above principle has gained legislative recognition in India when Section 114 is
incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks
likely to have happened. In that process court shall have regard to the common course of natural events, human
conduct etc. in relation to the facts of the case.

When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him
out of that area, the accused alone knew what happened to him until he was with them. If he was found
murdered within a short time after the abduction the permitted reasoning process would enable the court to draw
the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the
court what else happened to Mahesh at least until he was in their custody. In this context we may profitably
utilize the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact
is especially within the knowledge of any person, the burden of proving that fact is upon him."

Vijayee Singh And Ors vs State Of Uttar Pradesh 19910 AIR 145925
14 accused were tried for offences under section 148 and 302 read with Section 149 of I.P.C. for the murder of
two persons named Mahendra Singh and Virendra Singh and injuries to 3 others named Vijay Narain Singh,
P.W. 1,Uma Shankar Singh, P.W. 2 and Kailash Singh. Accused No. 6 Chirkut Singh was further tried under
Section 307 I.P.C. for attempting to murder P.W. 1 and all the remaining accused under section 307 read with
Section 149 I.P.C. for causing injuries to Uma Shankar and Kailash Singh. The trial court relying on the
evidence of P.Ws 1 and 2 who were the main eye witnesses convicted all the 14 accused under section 302
I.P.C. read with Section 149 I.P.C. and awarded them life imprisonment. The convicted accused preferred
appeals to the High Court and the State filed appeals for enhancement of their sentence. A Division Bench of the
Allahabad High Court consisting of Justice Katju and Aggarwal heard the appeals. While Justice Katju allowed
the appeals by the accused and dismissed the State appeals, Justice Aggarwal disagreeing with him, dismissed
all the appeals, both by the accused and by the State. Consequently the matter was referred to a third judge.
Justice Seth who confirmed the conviction and sentence awarded to accuse Nos. 1, 3, 4 and 6 only and acquitted
all the rest of the accused on the view taken by him that the specific overt acts were attributable to only these
four accused and the rest should be given the benefit of doubt.
Held: - Section 105 places "burden of proof' on the accused in the first part and in the second part there is a
presumption which the Court can draw regarding the absence of the circumstances, which presumption is
always rebuttable. Taking the section as a whole the "burden of proof" and the

presumption have to

be

considered together. It is axiomatic when the evidence is sufficient as to prove the existence of a fact
conclusively then no difficulty arises. But where the accused introduces material to displace the presumption
which may affect the prosecution, case or create a reasonable doubt about the existence of one or other
ingredients of the offence and then it would amount to a case where prosecution failed to prove its own case
beyond reasonable doubt.
25 http://indiankanoon.org/doc/1060754/

CHAPTER 4-COMPARITIVE STUDY


UNITED STATES OF AMERICA(USA)
Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case
the plaintiff sets forth its allegations in a complaint, petition or other pleading. The defendant is then required to
file a responsive pleading denying some or all of the allegations and setting forth any affirmative facts in
defense. Each party has the burden of proof of their allegations.
Legal standards for burden of proof

Preponderance of the evidence

Preponderance of the evidence, also known as balance of probabilities is the standard required in
most civil cases, and in family court determinations solely involving money, such as child support under
the Child Support Standards Act.
The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied
if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of
Pensions, described it simply as "more probable than not." Until 1970, this was also the standard used in
juvenile court in the United States.
This is also the standard of proof used when determining eligibility of unemployment benefits for a former
employee accused of losing their job through alleged misconduct. In most US states, the employer must prove
this case based on preponderance of the evidence.
Preponderance of the evidence is the standard of proof used for immunity from prosecution under Florida's
controversial stand-your-ground law. The defense must present their evidence in a pre-trial hearing, show that
the statutory prerequisites have been met, and then request that the court grant a motion for declaration of
immunity. The judge must then decide based on the preponderance of the evidence whether to grant immunity.
This is a far lower burden than "beyond a reasonable doubt," the threshold prosecutors must meet at any
proceeding criminal trial

Clear and convincing evidence

Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence".
It is employed intra-adjudicative in administrative court determinations, as well as in civil and certain criminal
procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital
punishment must prove his factual innocence by clear and convincing evidence. 26
This standard is used in many types of equity cases, including paternity, persons in need of supervision, juvenile
delinquency, child custody, the probate of both wills and living wills, petitions to remove a person from life
support ("right to die" cases), and many similar cases.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and
substantially more probable to be true than not and the Trier of fact must have a firm belief or conviction in its
factuality. In this standard, a greater degree of believability must be met than the common standard of proof in
civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for
which they are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing
evidence"; and "clear, unequivocal, satisfactory, and convincing evidence", and is applied in cases or situations
involving an equitable remedy or where a presumptive civil liberty interest exists.

Beyond reasonable doubt

This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only
applies in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is
no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after
careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has
not been met.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to
rely and act upon it without hesitation in the most important of one's own affairs. However, it does not mean an
absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that
no other logical explanation can be derived from the facts except that the defendant committed the crime,
thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then
the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be
pronounced guilty. The term connotes that evidence establishes a particular point to a moral certainty which
26Calderon v. Thompson, 523 U.S. 538

precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the accused's
guilt, but only that no reasonable doubt is possible from the evidence presented. Further to this notion of moral
certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based
entirely on circumstantial evidence, certain jurisdictions specifically require the prosecution's burden of proof to
be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other
than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in
the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in
civil trials, in which monetary damages are the common remedy.

UNITED KINGDOM
In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two
standards of proof in trials. (There are others which are defined in Statutes relating to police powers etc.)
The Criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the
words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told
that to convict they must be persuaded "so that you are sure".
The Civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not".

CHAPTER 5-CONCLUSION AND SUGGESTIONS


CONCLUSION
In conclusion, it may be stated that the legal burden of proof remains constant and is affected only by reverse
onus that change the nature of the legal burden to the extent that all the ingredients of the offence do not have to
be proved by the prosecution. However, such reverse onus clauses are usually limited to strict liability offences.
Even if the statues seeks to place the legal burden on the accused, it has to be read down so that only the
evidential burden on the accused is there. Similarly, even in the case of presumption, exception and proviso,
although section 105-114A of Indian Evidence Act shifts the burden of proof. The presumptions against the
accused are rebuttable and therefore, the legal burden is never shifted upon the accused.
In the UK and USA, the confusion in respect of phrase beyond reasonable doubt has arisen only because of
the directions that are given to the jury by the judge. However, it is generally accepted that the standard of proof
is that proof beyond reasonable doubt. In the Indian context, since there is no jury system, the judges do not

need to define the phrase and may act on the objective basis of a reasonable man to determine whether a doubt
is reasonable. Here it is apt to quote, Lord Justice Denning who relied upon Chief Justice Best in proportion as
the crime is enormous, so ought the proof to be clear.
It should be remembered that as regards the Indian position on the constitutionalisation of tile presumption of
innocence in P.N. Kishanlal and others v. Government of Kerala and others3l it was explicitly laid down that the
presumption of innocence is not a constitutional guarantee and reverse onus. Clauses cannot be declared as ultra
vires. However, adverting to the questions which were raised earlier with respect to the Woolmington
formulation, there is a need to answer an oft quoted criticism ... that the formulation vastly increases the burden
on the prosecution. In answer to this, Paul Roberts retorts "What is wrong if the prosecution's onus is made
weightier? It is repugnant to public policy to allow conviction even when doubt exists: Whilst a normative
suggestion is not sought to be made, given the present circumstances, wherein an abysmally low conviction rate
stares us in the face, a comprehensive burden (as Fletcher puts it) on the prosecution may not be advisable. The
existing formulation in Woolmington's case, as reflected in the decisions of the Indian courts is a correct and
thoughtful exposition of law.
SUGGESTIONS
I propose to do away with the presumption of innocence and lower the standard of proof which will
violate the presumption of innocence as enshrined in Art 14(2) of ICCPR. This idea is on arming the
state with discretionary and punitive measures, weakening the constitutionally guaranteed rights of the
accused, relaxing the presumption of innocence until proven guilty.
I propose to give power to the court to draw a presumption where bodily injuries (fatal or otherwise) are
caused to a person while he is in the custody of the police. The court may be given discretion that the
injuries were caused by the police having the custody of the person during the relevant period. The
vesting of such power is justified because as regards a person in police custody, it is unlikely that anyone
else would have the opportunity of inflicting injuries.