BURDEN OF PROOF

Introduction
• Chapter VII S.101 to S.114 of Indian Evidence
Act deals with the provisions of "burden of
Proof".
• The word 'burden of proof' has not been defined
in Evidence Act .It is a fundamental principle of
criminal jurisprudence that guilt of accused is to
be proved by the prosecution, and an accused
should be presumed to be innocent.
 Meaning of 'Burden of Proof'
• The burden of proof means the obligation to
prove a fact.
• Every party has to establish fact which go in
his favour or against his opponent and this is
the burden of proof .
• Evidence Act lays down some principle of
burden of proof of general nature
 Principle of Burden of Proof
Theoretically the basis is divided into two parts -
A) Concept of Onus Probandi
B) Factum Probans
 Burden Of Proof
• Burden of proof is constant. Onus shifts.
• It consists and means that what is to be proved is fixed . e.g . burden is
constant and who shall prove that is to be decided .
• This liabilities and responsibilities to prove the fact is known as onus
(burden) which shifts from shoulder of one party to the shoulder of
another party.
• Burden of proof is always constant because it has reference to
ingredients and concepts while onus shifted from shoulder to shoulder.
• The rule of burden of proof in civil and criminal cases is of different
nature.
• In civil proceedings the party who alleges certain things must prove his
case , but proving beyond doubt is not necessary.
• In criminal cases however the guilt of the accused is to be proved beyond
reasonable doubts otherwise the accused gets benefits of doubt .
 SEC 101 - BURDEN OF PROOF
• In Section 101 says that if a person who makes an
allegation on opposite party in front of the court, that
person must prove that his allegation was true which is
said to be Burden of Proof.
• For Example A and B are Appellant and Respondent. In
court A says thats B has committed a crime yesterday.
Here A must prove that B has committed a crime.
• In Jarnail Singh v.State of Punjab (1996) Burden of
proof lies upon the person who has raised allegation on
opposite party who is said to be Accused . The Person
must prove that the opposite arty has done guilty. If
Burden of proof lacks or not proved, there are chances of
dismissal of the case.
 SEC 102 - ON WHOM THE BURDEN OF
PROOF LIES
• If a person who raised allegation has not yet submitted
any Proof then there are chances of opportunity for
opposite party to win the case and party who had raised
allegation will therefore fails .
• For Example: A and B had made an agreement that A had
given Rs. 15,000 as debt B and B must pay the Debt back
to A within 3 months. After 3 Months B denies and he says
that this agreement is fake. Here B must prove that this is
fake, If B fails to prove that this is fake then A wins.
• In Triro vs Dev raj A I R 1993 J&K the person had delayed
in filing the suit must prove for delay in filing the suit.
 SEC - 103 BURDEN OF PROOF AS
PARTICULAR TO FACT
• In Section 103 says that when Burden of Proof
lies on a particular fact which relate to that
main person he must prove the fact whether it
is true or not.
• The principle of Section 103 is said to be Rule
of Convenience
 Example
• A and B are two parties are appellant and
respondent. A says 3 days before B had killed
C near Public Garden at night. But B says that
he was not there at particular incident and he
was in Kanniyakumari not in Chennai. Here A
must prove C was killed by B and B must prove
that he was in Kanniyakumari not in chennai
at that time of this incident.
 SEC - 104 BURDEN OF PROVING FACT TO BE
PROVED TO MAKE EVIDENCE ADMISSIBLE

• In Section 104 says that In Burden of Proof rises

in facts then it must be proved who is related to
the Fact
• For Example: A is ready to help B in recording
dying declaration. A must prove B‘s death. In
recording B says about the important file and also
tells about the hidden place where he kept the
Secret file. Now A must prove the file is hidden at
that particular place .
 SEC 105 - BURDEN OF PROVING THAT CASE
OF ACCUSED COMES WITHIN EXCEPTIONS

• Section 105 says that If the Burden of Proof lies on the

side of Accuse and if the accuse brings to general
exceptions he must prove it.
• For Example: A was walking on the road at night.
While walking suddenly he saw an unknown man B
was trying to hit him. Due to fear of life A pushed B
forcebily down. As A pushed B, B lost his balance and
fell down and his head was hit by a stone harshly. At
that moment itself B dies. Here A must prove that due
to defense he pushed down B unfortunately it lead to
Death
 SEC 106 - BURDEN OF PROVING FACT
ESPECIALLY WITHIN KNOWLEDGE
• When any case is confined to the knowledge of
any person, the burden of proving the fact is on
that person.
• For Example: A Person is travelling in a Bus from
Bombay to Goa and got the ticket too but he lost
the ticket. While travelling ticket checker came to
check the tickets of passengers. Here the person
who lost the ticket must prove that though he
brought the ticket he lost it.
 Case Law
• In Eshwarai vs Karnataka 1994 SC case (1994)
A man and women was hiding under the
bedroom of a person who is dead with
grievous injuries. Here Burden of Proof lies on
both men and women that why were they
hiding under the bed and also how did that
person (deceased) died with so much injuries
on bed.
SEC 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.
 SEC 108 - BURDEN OF PROVING THAT
PERSON IS ALIVE WHO HAS NOT BEEN
HEARD OF FOR SEVEN YEARS
• when the question is whether a man is alive or
dead, and it is proved that he has not been
heard of for seven years by those who would
naturally have heard of him if he had been
alive, the burden of proving that he is alive is
shifted to the person who affirms it
 SEC 109 - BURDEN OF PROOF AS TO RELATIONSHIP
IN THE CASES OF PARTNERS, LANDLORD AND
TENANT, PRINCIPAL AND AGENT
• When the question is whether persons are
partners, landlord and tenant, or principal and
agent, and it has been shown that they have
been acting as such, the burden of proving
that they do not stand, or have ceased to
stand to each other in those relationships
respectively, is on the person who affirms it.
SEC - 110 BURDEN OF PROOF AS
TO OWNERSHIP
• When the question is, whether any person is
owner of anything of which he is shown to be
in possession, the burden of proving that he is
not the owner is on the person who affirms
that he is not the owner`
 SEC 111 - PROOF OF GOOD FAITH IN
TRANSACTIONS WHERE ONE PARTY IS IN
RELATION OF ACTIVE CONFIDENCE
• In Section 111 says that when question rise
that good faith of transactions between
parties
• Where there is a question as to the good faith
of a transaction between parties, one of
whom stands to the other in a position of
active confidence, the burden of proving the
good faith of the transaction is on the party
who is in a position of active confidence
PRESUMPTION
 What is Presumption
• Presumption means an act of accepting that something is true
until it is proved not true. If certain facts are established, a judge
or jury must assume another fact that the law recognized as a
logical conclusion from the proof that has been introduced. A
Rule of law which permits a court to assume a fact is true until it
is proven otherwise.
• Examples: (i) A child born of a husband and wife living together
is presumed to be the natural child of the husband, unless there
is a conclusive proof he is not;
• (ii) A person who has disappeared and not heard from for seven
years is presumed to be dead, but the presumption could be
rebutted if he/she is found alive;
• (iii) An accused person is presumed innocent until proven
guilty.
 Classification of Presumption
1. Rebuttable Presumption (Sections: 79-85, 89 & 105) Both
in Common Law and in Civil Law, a rebuttable presumption
is an assumption made by a court, any fact or issue that is
taken to be true unless someone comes forward to
contest it and prove otherwise.

2. Irrebuttable or Conclusive Presumption (Sections: 41, 112

& 113) Irrebuttable presumption refers to such type
presumption which cannot be overcome or changed by
any additional evidence or argument made by any party or
individuals. Irrebuttable presumption also called
Conclusive Presumption or absolute presumption.
 Section 4 of the Evidence Act, 1872
(i) May Presume - Whenever it is provided by this Act
that the Court may presume a fact, it may either regard
such fact as proved, unless and until it is disproved, or
may call for proof of it.
(ii) Shall Presume- Whether it is directed by this Act that
the Court shall presume a fact, it shall regard such fact
as proved, unless and until it is disproved.
(iii) Conclusive Proof - When one fact is declared by this
Act to be conclusive proof of another, the Court shall,
on proof of the one fact, regard the other as proved,
and shall not allow evidence to be given for the
purpose of disproving it.
 S111A(Amendment 1984)
Presumption as to certain offenses
(1) Where a person is accused of having committed any offense in-
(a) any area declared to be disturbed area under any enactment, for the
time being in force, making provision for the suppression of disorder and
restoration and maintenance of public order; or
(b) any area in which there has been, over a period of more than one
month, extensive disturbance of the public peace, and it is shown that
such person had been at a place in such area at a time when firearms or
explosives were used at or from that place to attack or resist the
members of any armed forces or the forces charged with the
maintenance of public order acting in the discharge of their duties, it
shall be presumed, unless the contrary is shown, that such person had
committed such offense.
(2) The offenses referred to in sub-section (1) are the following, namely -
(a) an offense under section 121, section 121-A, section 122 or Section 123
of the Indian Penal Code (45 of 1860);
(b) criminal conspiracy or attempt to commit, or abatement of, an offence
under section 122 or section 123 of the Indian Penal Code (45 of 1860)
 SEC 112 - BIRTH DURING MARRIAGE,
CONCLUSIVE PROOF OF LEGITIMACY
• In Section 112 says that when a married men and
women gets a new born child within 280 day
(during marriage) after legitimate when mother
not get remarried then the child is said to be
legitimate .
• Smt Dukhtar case (1987) In this case the court
held that husband is not the father of the child
and the child is said to be illegitimate. So,
husband need not give any evidence to his ex -
wife..
• Chilkuri Ventakashwarlu v. Ventaknarayan
1954 SC 424
 SEC 113 - PROOF OF CESSION OF
TERRITORY
• For Example : A territory given to Sri Lanka -
official Gazette
 SEC 113 A - PRESUMPTION AS TO
ABATEMENT OF SUICIDE
• In Section 113 A three facts are to be known for
Abetment of Suicide by women.
1. Abetting women to commit suicide by her husband or
her husband‘s relative.
2. Suicide must have happened within seven years from
the date of the marriage.
3. Cruelty must have been present due to her husband
or her husband‘s relative.
• Above three can prove that women has been abetted
to commit suicide. Note:
• Cruelty can be referred from 498-A of IPC 1860.
 SEC 113 B - PRESUMPTION AS TO
DOWRY DEATH
• Section 113 B say that A person who has
committed Dowry death to women by cruelty
or torture or harassment for getting dowry.
• Most of the time in Dowry death Husband or
his relatives involve.
• Dowry Death are referred in detail from
Section 304-B of IPC 1860
SEC 114 - COURT MAY PRESUME
EXISTENCE OF CERTAIN FACT
• Section 114 says that the court will presume
the facts of happening of the event due to
natural cause or human conduct or public
business or private business, here it must be
similar to particular facts.
• For Example: On Rainy season there was a
huge flood were small children found to be
dead.
 SEC 114 A - PRESUMPTION AS TO ABSENCE OF
CONSENT IN CERTAIN PROSECUTIONS FOR RAPE
• Section 114A says that without consent of women and
with force a person having sexual intercourse with her
is said to rape.
• Here court takes the point ‘without consent‘.
• Rape and its punishments are given in Section 375 and
Section 376 of IPC 1860.
• Nawab Khan 1990 In this case without consent of
women accused had sexual intercourse with that
women and committed Rape but Accused raises that
with consent only he had sexual intercourse with that
women. Court said that the Accused must prove that
he had sexual intercourse with consent