Burden of Proof

General Concept
The responsibility to prove a thing is called burden of proof. When a person is required to
prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact.
In a case, many facts are alleged and they need to be proved before the court can base its
judgment on such facts. The burden of proof is the obligation on a party to establish such
facts in issue or relevant facts in a case to the required degree of certainty in order to prove
its case. For example, in a case of murder, prosecution may allege that all the conditions
constituting a murder are fulfilled. All such conditions are facts in issue and there is an
obligation to prove their existence. This obligation is a burden of proof. In general, every
party has to prove a fact that goes in his favour or against his opponent, this obligation is
nothing but burden of proof. Section 101 defines burden of proof as follows - When a person
is bound to prove the existence of any fact, it is said that the burden of proof lies on that
person.

The important question is who is supposed to prove the various facts alleged in a case. In
other words, on whom should the burden of proving a fact lie? The rules for allocation of
burden of proof are governed primarily by the provisions in Section 101 to 105. The rules
propounded by these sections can be categorized as General rules and Specific rules.

General rules
Burden of proof –
As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says
that whoever desires any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist.
For example, 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. Another example -
A desires a Court to give judgment that he is entitled to certain land in the possession of B,
by reason of facts which he asserts, and which B denies, to be true. A must prove the
existence of those facts.

Types of fact:
Facts can be put in two categories –
i.) those that positively affirm something, and
ii.) those that deny something.
For example, the statement, "A is the owner of this land" is an affirmative statement, while
"B is not the owner of this land" is a denial. The rule given in Section 101 means that the
person who asserts the affirmative of an issue, the burden of proof lies on his to prove it.
Thus, the person who makes the statement that "A is the owner of the land", has the burden
to prove it. This rule is useful for determining the ownership of the initial burden. Whoever
wishes the court to take certain action against the opposite party based on certain 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 suing the tenant asserted that
the tenant did not repair the house. Here, he was asserting the negative. But the same
statement can also be said affirmatively as the tenant let the house dilapidate. In this
case, Lord ABINGER observed that In ascertaining which party is asserting the affirmative
the court looks to the substance and not the language used. Looking at the substance of this
case, the plaintiff had to prove that the premises were not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to
begin who in substance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses –
1.) the burden of proof as a matter of law and pleading, and
2.) the burden of proof as a matter of adducing evidence also called as onus.
There is a subtle distinction between burden of proof and onus of proof, which was
explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden to
prove the main contention of party requesting the action of the court, while the second one is
the burden to produce actual evidence. The first one is constant and is always upon the
claimant but the second one shifts to the other party as and when one party successfully
produces evidence supporting its case.
For example, in a case where A is suing B for payment of his services, the burden of proof as
a matter of law is upon A to prove that he provided services for which B has not paid. But if
B claims that the services were not up to the mark, 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.

Onus of proof:
As per 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.
The following illustrations explain this point -
Illustration 1- A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B's father. If no evidence were given on either side, B would be
entitled to retain his possession. Therefore the burden of proof is on A.

Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted, but
B says that it was obtained by fraud, which A denies. If no evidence were given on either
side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the
burden of proof is on B.

BoP as to particular fact:

As per Section 103, the person who wants the court to believe in an alleged fact is the one
who is supposed 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 example - B wishes the Court to believe
that, at the time in question, he was elsewhere. He must prove it. Further, as specified
in Section 104, if a person wants the court to believe in a fact that assumes the existence of
another fact, it is up to the person to prove the other fact also. For example, A wishes to
prove a dying declaration by B. A must prove B's death. A wishes to prove, by secondary
evidence, the contents of a lost document. A must prove that the document has been lost.

Specific Rules
These rules specifically put the burden on proving certain facts on particular persons -

Rule of Proving fact especially within knowledge

As per 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 some intention
other than that which the character and circumstances of the act suggest, the burden of
proving that intention is upon him. For example, A is charged with traveling on a railway
without a ticket. The burden of proving that he had a ticket is on him.

Rules of Presumption –
Section 107 and 108 say that if a person was known to be alive within 30 yrs the
presumption 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 presumption is that the
person is death. But no presumption can be draw as to the time of death. Sections
109 establishes the burden in case of some 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 Presumption of innocence - The general rule in criminal cases is that the
accused is presumed innocent. It is the prosecution who is required to establish the guilt of
the accused without any doubt. At the same 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 claims the benefit
of the General Exception clauses of IPC, the burden of proving that he is entitled to such
benefit is upon him.
For example, if an accused claims the benefit of insanity in a murder trial, it is up to the
accused to prove that he was insane at the time of committing the crime.

In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In
this case, Nanavati was accused of murdering Prem Ahuja, his wife's paramour, while
Nanavati claimed innocence on account of grave and sudden provocation. The defence's
claim was that when Nanavati met Prem at the latter's bedroom, Prem had just come out of
the bath dressed only in a towel; an angry Nanavati swore at Prem and proceeded to ask him
if he intends to marry Sylvia and look after his children. Prem replied, "Will I marry every
woman I sleep with?", which further enraged Nanavati. Seeing Prem go for the gun, enclosed
in a brown packet, Nanavati too went for it and in the ensuing scuffle, Prem's hand caused
the gun to go off and instantly kill him.
Here, SC held that there is a presumption 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 general exception or proviso contained in any other part
of the Penal Code, Section 105 of the Evidence Act raises a presumption against the accused
and also throws a burden on him to rebut the said presumption. Thus, it was upon the
defence to prove that there existed a grave and sudden provocation. In absence of such 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 example, A was
recorded as saying that he committed theft at the said premises. If A wants to deny this
admission, the burden of proof rests on A to prove so.

Exception 3 – Presumptions as to living or dead - Court presumes the existence of certain

things.
For example, as per Section 107/108, court presumes that a person is dead or alive based on
how long he has not been heard of.
Section 109, presumes that when two people have been acting as per the relationship of
landlord - tenant, principle - agent, etc, such relationship still exists and anybody who
contends that such relationship has ceased to exist has to provide proof.
Section 110 presumes that the person who has the possession of a property is the owner of
that property.
As per Section 113A, When the question is whether the commission of suicide by a woman
had been abetted by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide had been abetted
by her husband or by such relative of her husband.
As per Section 113B, when the question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such woman had been subjected by
such person to cruelty or harassment for, or in connection with, any demand for dowry, the
court shall presume that such person had caused the dowry death.

Thus, when the presumption of the court is in favour of a party, the burden of disproving it
rests on the opposite party.