Burden of Proof and

Onus of Proof.
Initial Burden on one who
takes affirmative of the
issue
• A party who wishes the court to give a judgement
on the existence of a fact should prove the fact.
• K. Prasad v. G.Prasad, A.I.R. 2001 Pat. 1 – A person
who questions a gift deed on the ground of fraud
has to prove that fact. In this case the legal heirs
who would have otherwise inherited the donated
property questioned it.
• Where a landlord seeks eviction on the ground of
bonafide personal need, burden lies upon him to
establish that he is genuinely in need of
accommodation. S. Benezer v. Velayudhan, A.I.R.
1998 S.C. 746.
Onus and Burden
• Burden of proof lie on the person who has to prove
a fact and it never shifts.
• Onus of proof shifts and it includes assertion of a
proposition or fact which is not self-evident
• R. Somabhai v. Babubhai, AIR 1982 Guj. 308 –
Burden of proof as a matter on law and pleadings
never shifts (section 101 – whoever desires any
Court to give judgement as to any legal right or
liability dependant on the existence of facts which
he asserts, must prove that those facts exists).
• Onus of proof as a matter of adducing evidence
shifts (section 102 – 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).
premises had been sub-let
by the tenant. The landlord
proved that somebody
other than the tenant was
using the premises. The
landlord had discharged
his initial burden.
Civil Cases and
preponderance of
probability
• The presumption of sub-letting
arises when the premises are used
by other persons other than tenant.
• A tenant will not allow anyone else
to stay within the premises without
consideration.
• The burden shifts on the tenant to
show whether the premises are sub-
let or not.
Section 105 Ind.
Evidence Act.
• When a person is accused of any
offence, the burden of proving the
existence of circumstances bringing
the case within any general
exceptions in IPC or special
exception or proviso of IPC is upon
him and the court shall presume the
absence of such circumstances.
• Section 105 does not indicate the
nature and standard of proof
required.
Section 105, continued
• The Evidence Act does not contemplate that the
accused should prove his case with the same
strictness and vigour as a prosecution is required
to prove in a criminal charge.
• V. Subhramani v. State of Tamil Nadu, AIR 2005 SC
1983 – the accused can discharge the burden of
proving right of private defence by showing the
preponderance of probabilities.
• Shah Guman Mal v. State of AP, AIR 1980 SC 793 –
the accused was prosecuted for possession of
smuggled gold under the Customs Act.
Case continued.
• The accused admitted that it was a
foreign metal and that it was
delivered to him by a certain person
whose identity he failed to disclose.
• It was held that the accused knew
who that person was and whether he
had any license and burden lay upon
him.
• From his refusal a presumption arose
under section 114 that the matters
were against him.
Defense can raise
reasonable doubt in the
minds of the Court
• In criminal cases the defendant is
not always required to prove the fact
beyond reasonable doubt, raising
reasonable doubt is enough.
• Following a serious dispute with his
workers, the owner was on way back
home by a jeep. Suddenly he saw
two of his workers raising their
hands to stop the jeep.
• They then tried to follow and close in
on the jeep.
The case continued
• In the apprehension that that they might
harm, the accused shot at them and they
died.
• The Supreme Court held that the evidence
on record did not establish that the jeep
was pelted with stones and damaged, but
it established a reasonable possibility of
the apprehension of personal harm.
• The circumstances justified the exercise
of private defence, but the limit was
exceeded. M. Ramzani v. State of Delhi,
AIR 1980 SC 1341.
Burden of proof of death
of person
• Section 107- 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.
• In R v. Lumley, 1869 LR 1 CCR 196, the
prisoner, a woman was prosecuted for
bigamy. She married a man in 1836, left
him after seven years in 1843 and married
another in 1847.
• Nothing was heard of her first husband
after she left him.
Case continued
• The prosecution gave no evidence of his age, or of
the fact that he was alive.
• But the judge felt that just because he was alive for
four years before the marriage, there was the
presumption that he was still alive and
consequently the prisoner was convicted.
• On Appeal, the conviction was quashed. In an
indictment for bigamy, it is incumbent on the part
of the prosecution to prove that the husband or
wife was alive at the date of the second marriage.
• The existence of the party at the antecedent date
may not afford a reasonable inference that he is
living at the subsequent date.
• The law makes no presumption either way.
Burden of proving that a
person is alive who has not
been heard of for 7 years
• Section 108 – the burden is on the
person who affirms it.
• M Sharif v. Bande Ali, ILR, 1911, 34
All. 36, M mortgaged certain
property to the defendant in 1890.
Thereafter he disappeared and
nothing was heard of him again.
• He had no heir.
• His brother D, who should have
inherited the property, died about 14
years after M’s disappearance.
Case contiued
• The heirs of D filed a suit for redemption of
the mortgage and contended that as M
disappeared 18 years ago, he must be
presumed to have been dead for last 11
years, and D who was alive till a later date,
must be deemed to have succeeded him as
a heir.
• The Court held that there is no
presumption that M died in the first 7 years
or in the last 7 years. The presumption
merely is that he was dead.
Proof of good faith in
transactions.
• Section 111- where one party is in
relation of active confidence the
burden of proving the good faith is
on him.
• Daya Shankar v. Bachi, AIR 1982 All.
376 – The plaintiff’s uncle, being
childless, used to treat the plaintiff
as his own son.
• He was eighty years old.
• him into a railway hospital.

When he became sick, the plaintiff admitted

Case continued
• Within 8 days he executed a gift deed of
his house in favour of the plaintiff.
• After a month his other heirs obtained
another gift deed favouring them.
• He died 6 months later.
• The court laid down that the deed in favour
of the plaintiff was executed in abnormal
circumstances.
• The burden of proving good faith was cast
upon him which he did not discharge.
• The deed of gift was set aside.
Birth during marriage,
conclusive proof of
legitimacy
• Essential conditions for the presumption of
legitimacy (section 112, Ind. Evid. Act)
• The child should have been born during the
continuance of a valid marriage, or if the
marriage was dissolved, within 280 days
after dissolution, the mother remaining
unmarried.
• The parties to the marriage should have
had access to each other at any time when
the child could have been begotten.
Access or non-access
must be proved
satisfactorily
• C. Venkateshwaralu v. Venkatanarayana,
AIR 1954 SC 176.
• In this case the husband tried to show that
he had provided separate residence to his
wife and never visited her.
• The wife alleged that the husband used to
frequently visit her.
• The husband was unable to prove his non-
access and the child born by the wife was
presumed to be a legitimate child.
Gautam Kundu v. State of
West Bengal
• Gautam Kundu case, (1993) 3 SCC
418.
• The criminal law standard of proof
beyond reasonable doubt could not
be applied because it would create
the risk of many a children being
rendered homeless.
• The court considers that very rarely
in Indian society a lady with children
would claim that she is the wife of a
person who is not her husband.
Goutam Kundu Case
continued
• The Supreme Court held that Courts in India cannot
order blood test as a matter of course.
• There must be a strong prima facie case in that the
husband must establish non-access in order to
dispel the presumption arising u/s 112.
• The Court must carefully examine as to what would
be the consequence of ordering the blood test;
whether it will have the effect of branding a child
as bastard and the mother as an unchaste woman.
• No one can be compelled to give sample of blood
for analysis.
Blood Group Test
• The Courts do not order any body to
submit himself for blood group test.
• No one can be compelled to give
sample of blood for analysis.
• Where the presumed father of the
child prayed for blood test for the
purpose of denying legitimacy and
liability to maintenance, his prayer
was not accepted. Gautam Kundu v.
State of West Bengal, AIR 1993 SC
2295.
DNA Test
• Kanchan Bedi v. Gurpreet Singh, AIR 2003
Delhi 446.
• In an application for grant of maintenance
to a minor child, the alleged father denied
his parentage.
• He showed no concern for the minor child.
• The Court directed him to submit to DNA
test.
• The Court said that there was no violation
of a person’s rights in directing him to take
the test particularly when a child’s right to
maintenance was involved.
Section 114 – Court may
presume existence of
certain facts.
• The Court may presume that a man, in
possession of stolen goods is either a
thief, or has received the goods knowing
them to have been stolen.
• An accomplice is unworthy of credit,
unless he is corroborated in material
particulars.
• A bill of exchange was accepted or
endorsed for good consideration.
• That evidence which could be and is not
produced would, if produced be
unfavourable to the person who withholds
it.
Presumption of human
conduct
• Moti v. State of UP (AIR 2003 SC 1897) – In a case
involving the murder of her husband, the wife of the
deceased stated that the incident occurred after
she cooked dinner and served the same to her
father and husband whereas the mother-in-law of
the deceased stated that the dinner was not
cooked when the incident occurred.
• The Court presumed that in a village where there is
no electricity, the villagers after finishing their
work normally have their meals early.
• It was held that the evidence of the wife even after
being contradicted, was worthy of acceptance.
Conclusive Proof
• There are three cases where conclusive
presumption may be drawn, they are sections
41(judgements in rem relating to probate,
admiralty, matrimonial and insolvency jurisdiction),
112 (legitimacy) and 113 (cessation of territory).
• In these cases enquiry is altogether excluded.
• It is undesirable to enquire into the paternity of the
child whose parents have access to each other.
• In Kanti Devi v. Poshi Ram, AIR 2001 SC 2226, the
Supreme Court held that even a DNA test that
indicated that the person is not the father of the
child would not be enough to rebut the
conclusiveness of marriage as proof of legitimacy
of child
Incapability of husband
• C. Kutty v. Subhramainan, AIR 1987 Ker. 5,
• The parties married in 1967.
• The husband underwent vasectomy
operation on 8.01.1976.
• Both were living together and the wife
gave birth to a child on 30. 8. 1978.
• The husband disputed the paternity of the
child but failed to prove that when the
child was conceived he was unable to
procreate.
• The Court presumed the child to be
legitimate.
 Withholding Evidence
{IIlustration (g)}
• Tulasa Priya v. A.P. State Council Of
Higher Education, (1998) 6 SCC 284
• In an admission test to medical colleges, a
candidate was given wrong type of answer-
book which was replaced by a correct one
after sometime.
• The candidate only attempted 170
questions out of 200 and got 94.555%
marks.
• She said that her answer book should be
assessed on the basis of 170 questions.
Case continued
• The examination authorities alleged that
the right type of answer book was supplied
to her without any loss of time.
• The candidate requested that her first
answer book should be produced to assess
the loss of time which the Authorities
failed to do.
• An adverse inference was drawn that
against them that if the same was
produced that would have substantiated hr
version.
Effect of non-production
of witness
• State v. Abdul Aziz, ILR (1971) 21 Raj 209
• The following factors should be
considered.
• Whether the witness is in a position to give
relevant and material evidence.
• Whether witness is within easy reach of
the prosecution or defence
• The nature and intensity of the controversy
raised by the defence on which the
witness is supposed to testify
• Persuasiveness of the evidence which is
on the record
It is not necessary to
examine all the possible
witnesses
• A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534
• In a matrimonial dispute both the husband and the
wife were doctors serving in the same hospital.
• The wife made allegations of adultery with the
nursing staff against her husband
• The husband did not examine any witness from the
hospital staff to rebut the allegations.
• High Court drew an adverse inference against the
husband
• Supreme Court held that the High Court erred in
doing so without discussing the sufficiency of other
evidence to sustain the allegation of cruelty by the
husband against the wife.
Withholding of
documents (civil)
• GK Srivastav v. State of Bihar
(AIR 2005 SC 3123)
• A public servant accused of
accepting bribe claimed to be
on leave on the relevant day.
• He failed to produce the casual
leave register of the department
Case continued
• He produced the application made for
casual leave on that particular date and he
had examined an officer of the department
as witness to prove the absence on that
date.
• An adverse inference was drawn against
him for non-production of the said register.
• The Supreme Court held that there was no
reason to discard his application for casual
leave and the evidence of the
departmental officer and the Courts below
erred in drawing an adverse inference
against him.
Estoppel
• Section 115 – When one person has, by his
declaration, act or omission, intentionally caused
or permitted another person to believe a thing to be
true and to act upon such belief neither he nor his
representative shall be allowed to deny the truth of
the thing in a suit or proceeding.
• Syed Abdul Khader v. Rami Reddy, AIR 1979 SC
553, property was sold by A pretending to be the
owner when he was not the owner.
• Subsequently he became the owner of the property
by succession and wanted to avoid the sale on the
ground of his lack of title at that time.
• He was held to be estopped from doing so.
Representation
• Sarat Chunder Dey v. Gopal Chander Laha, (1891-
92) 19 IA 203.
• A muslim died leaving a wife, son and daughter.
• The property was in the wife’s possession.
• She claimed to have gift deed of her husband in her
favour which was invalid.
• She mortgaged the property and the mortgagee’s
interest was purchased by the defendant Sarat
Chander.
• Subsequently the son and daughter sold their
shares in the property to Gopal Chunder.
• Gopal Chunder sued to recover possession of the
property from mortgagee Sarat Chunder.
Case continued.
• The defendant claimed an estoppel against him.
• The mother had no right to mortgage the share of
property of the son and the daughter and it was void.
• The defendant claimed that the son and the daughter
should not be permitted to say the mortgage is void.
• They had allowed the mother to be in possession and the
son acted on her behalf in executing the mortgage.
• That was a representation that the mother had the right
of the mortgage.
• The mortgagee acted on the representation.
• The Privy Council held that the son and plaintiff were
estopped but there was no estoppel against the
daughter.
Section 41 TP Act
• Principle of section 41 of TP Act is similar to
principle of section 115 of Ind. Evid. Act.
• When an owner transfers property with apparent
ownership and right of disposition thereof, he would
be estopped from claiming the title against a
person to whom the original transferee disposed of
the property and who took it in good faith and for
consideration.
• B. D. Chakravarty v. N.C. Pal, ILR (1901) 29 Cal 306.
• In 1894 the appellant agreed in writing to give the
respondent a lease of a plot of land for the purpose
of erecting buildings from year to year at an annual
rent of Rs180.
Case contd.
• The respondent took possession.
• In 1903 he wished to build a pucca house
upon the land and in answer to inquiries
the appellant wrote a letter stating that
the lease is a permanent lease though the
rent was liable to enhancement.
• Acting upon that letter the respondent
build the house.
• The appellant knew of the building and
received a bonus in respect of it
• In 1916 the appellant sued to eject the
respondent from the land.
Case continued.

• It was held that whether or not the

letting was a permanent one upon
the construction of the agreement,
the statement in the letter was the
representation of fact and the
appellant was estopped from
denying that the letting was of that
character though subject to
enhancement of rent.
Estoppel of tenant and
licensee
• Section 116 – Estoppel of tenant binds him till he is
in possession.
• A tenant is not permitted to deny the title of his
landlord. An estoppel arises as soon as the
relationship of landlord and tenant is created.
• Harbans Singh v. Tekamani Devi, AIR 1990 Pat. 26 –
The tenant after having accepted the landlord,
cannot afterwards say that he was not entitled to
grant the tenancy.
• The Tenant is free on the expiry of the tenancy to
question the title of the landlord.
Inadmissible statements
and discovery
• R. v.Warickshall, (1783) 1 Leach 263 – Whether a
confession is admissible or inadmissible, any fact,
the knowledge of which has been obtained through
it, may still be proved by the prosecution. Also
mentioned in Kuruma v. R, (1955) AC 197.
• R. v. Sadler, (1970) 2 All ER 12 – The rules
regarding confession and admission have no
application to the discovery of material evidence
which has itself probative value.
• Emperor v. Ganu Chandra Kashid, (931) 34 Bom LR
303. – Where the acused states to the police, “I will
produce the share which I received in such a and
such dacoity” the statement is divisibe into the
following parts.
Section 27 Ind. Ev. Act
• (1) an admission that there was dacoity,
• (2) an admission that the accused took
part in it,
• (3) and admission that he got part of the
property,
• (4) a statement as to where the property
is,
• The first 3 parts are not admissible in
evidence, having regard to the provisions
of Ind. Ev. Act, but the 4th part is
admissible.
Section 136
• Party seeking to put a document in
evidence must show under which section it
is admissible.
• Section 141 – Any question suggesting the
answer which the person putting it wishes
or expects to receive is called a leading
question.
• The prohibition of putting leading
questions in examination –in- chief and re-
examination is not absolute. The Court
may allow it under Order XVIII, Rule 11,
CPC.
Leading Questions
• Section 143 – Leading question may be asked in
cross-examination.
• LP v. Inspector General of Police, (1954) All LJ 316
– The reason why leading questions are allowed to
be put to an adverse witness in cross-examination
is that the purpose of a cross-examination being to
test the accuracy, credibility and general value of
evidence given, it sometimes becomes necessary
for a party to put leading questions in order to elicit
facts in support of his case, even though it may be
entirely unconnected with facts testified to in an
examination-in-chief.
Section 145
• A witness may be cross-examined as to any statements
as to relevant facts made by him on a former occasion, in
writing, without showing the writing to him or proving the
same.
• Md. Abdul Azeez v. State of AP, 2003 CrLJ 4410 – In a
proceeding u/s 498A of IPC against husband instituted by
the wife, the wife alleged that the husband pressurised
her to bring money from her parents for construction of
additional accommodation.
• Certified copy of the deposition of the complainant filed
by her in earlier maintenance case, cannot be used in
evidence in view of section 145 Ind. Evi. Act, as omission
of said allegation in maintenance case cannot be used
for the purpose of contradiction since matter of demand
of money was irrelevant in said maintenance proceeding.
Section 146
• Witness can be asked questions to test his veracity, or to
discover who he is, or to shake his credit.
• As long as the cross-examiner confines his questions to
the points of testing veracity of a witness or discovering
the status in life, there seem to be n
• o limits to his power of putting questions.
• The moment he undertakes the task of impeaching the
character of the witness, section 147 to 150 protect the
witness and impose restraints upon assertions levelled
against him.
• Deb Narayan Halder v. Anushree Halder, AIR 2003 SC
3174 – In a proceeding for maintenance by the wife, the
cross-examining counsel made a suggestion of to the
witness, the landlady, produced by the husband.
Case continued
• The suggestion was that the husband he
was in love with her daughter-in-law and
that is why he used to go her house which
was stoutly denied by the witness.
• It was held that putting such a question to
the witness, when there was no such
complaint in the application and the
respondent side had stated nothing to this
effect, should not have been permitted,
particularly when it reflected not only on
the character of the husband but also on
another lady who was not a party to the
proceedings.
Section 148
• The section deals with the exercise of
discretion of the court, while deciding
whether a witness should be compelled to
answer a question in cross-examination or
not.
• Rex v. Clarke, (1817)2 Stark 41 – On an
indictment for rape, or for an indecent
assault, the prosecutrix cannot be asked in
cross-examination whether she had
connection with another person not the
accused, and if she denies it, evidence
cannot be called to contradict her.
Section 149
• The questions which are contemplated under
section 148, ought not to be asked unless the
person asking the question has reasonable ground
for thinking that the imputation which it conveys is
well founded.
• Deepchand v. Sampathraj, 1970 CrLJ 260 –
Defamatory questions were put by the lawyer to a
witness in cross-examination, on the client’s
instructions and the imputation conveyed by those
questions were per se defamatory.
• It was held that there was no reasonable basis for
putting those questions and the client was liable
under section 500 IPC, though the lawyer could
take protection under the 9th exception to section
499, IPC.
Section 150
• If the Court is of opinion that any question was asked
without reasonable grounds, it may report the
circumstances of the case to the High Court or other
Authority to which the barrister, pleader, vakil, or
attorney who asked the questions is subject in the
exercise of his profession.
• Section 151 – Indecent and scandalous questions are not
allowed by the Court unless they relate to facts in issue.
• State of UP v. Raghubir Singh (1997) 3 SCC 775 – The fact
in issue was not concerning the paternity of a child
rather it was concerned with the issue whether the child
/son was kidnapped by the accused and murdered. It was
held that the Court should not have allowed indecent and
scandalous imputations on the moral character of the
witness, the mother of the victim.
Section 152
• The section empowers the Court to forbid question
which appears to it to be intended to insult or
annoy, or which, though proper in itself, appears to
the Court needlessly offensive in form.
• Fatima Rizwana v. State, (2005) 1 SCC 582 – In a
case concerning commission of offenses relating to
pornographic materials, evidences as to the
subject-matter which could cause embarassment to
the lady witnesses/ accused , etc., the Supreme
Court held that Presiding Officer could make
adjustments, arrangements in the procedure so as
to minimise embarassment to himself/ herself and
the witnesses.
Section 155
• The credit of a witness may be impeached by the
adverse party, or the party who calls him, (a) by the
evidence of persons who testify that they believe
him to be unworthy of credit,
• (b) by proof that the witness has been bribed,
• (c ) by proof of former statements inconsistent with
any part of his evidence which is liable to be
contradicted.
• Dinkar Bandhu Deshmukh v. State AIR 1970 Bom
438 – Opinion evidence, as a general rule is not
admissible. Section 155(1) is an exception to that
rule. To draw an inference against the credibility of
a witness without anybody going into the witness-
box in the manner contemplated by secton 155 (1)
would not be legitimate.
Rama Reddy v. VV Giri

• Rama Reddy v. VV Giri, AIR

1971 SC 1162 – Even tape –
recorded evidence can be used
for the inference against the
credibility of a witness,
although the standard of proof
differs as it falls under the
category of documentary
evidence.