INTRODUCTION

TITLE
BURDEN OF PROOF

SUBMITTED BY
KSHITIJ KATIYAR
ROLL NO. 40 CLASS: B.COM. LLB. (HONS)
SEMESTER: 5
OF
FACULTY OF LAW
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVESITY
IN
DECEMBER, 2020

UNDER THE GUIDENCE OF

MR.SANDEEP MISHRA
OF
LAW FACULTY
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVESITY

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 ANNEXURE

1.INTRODUCTION

2.ACKNOWLEDGEMENT

3.INDEX

4.CONTENT

5.BIBLIOGRAPHY

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 ACKNOWLEDGEMENT

I would like to express my special thanks and gratitude to my teacher

MR. SANDEEP MISHRA who gave the golden opportunity to do
this wonderful project on the topic BURDEN OF PROOF, which
also helped me in doing lots of research about the topic due to which,
I came across various new aspects about the topic. I am very much
thankful to her.
Secondly I want to thank my parents and my friends who supported
me a lot and helped me in completing this assignment within limited
time frame.

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 INDEX
SR. NUMBER PARTICULSRS PAGE
NUMBER

1 INTRODUCTION 5

2 PRINCIPLE OF BURDEN OF 5-6

PROOF

3 SECTION 101 BURDEN OF 6-8

PROOF

4 SECTION 102 ONUS OF 8-10

PROOF

5 SECTION 103 AND 106 10-11

6 SECTIN 104 BURDEN OF 11-12

PROVING FACT TO BE
PROVED TO MAKE
EVIDENCE ADMISSIBLE
7 SECTION 105 BURDEN OF 12-14
PROVING THE CASE OF
ACCUSED COMES WITHIN
EXCEPTION
8 BIBLIOGRAPHY 15

INTRODUCTION

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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
till he is proved guilty beyond reasonable doubt and accused has got right to
take benefit of some reasonable doubt.
The burden of proof means the obligation to prove the fact. When a person is
bound to prove the existence of any fact, it is said that the burden of proof lies
on that person. Every party has to establish the fact which goes in its favour or
against its opponent.

There is a distinction between ‘burden of proof’ and ‘onus of proof’. The

burden of proof lies on the person who has to prove the fact and it never shifts,
whereas the onus of proof shifts from one party to another.
Such shifting of onus is continuous process in the evaluation of evidence.
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.

Meaning of 'Burden of Proof':

In short, 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.

PRINCIPLES OF BURDEN OF PROOF:-

The principle of Burden of proof is based on the concept of onus probandi
(burden of proof) and factum probans (proving a fact). While the burden of
proof remains constant, the onus for the same shifts from one party to another.
The facts that are required to be proved are those which are not self-evident in
nature.

The expression burden of proof really means two different things

1. Sometimes the party is required to prove an allegation before judgement
is given in its favour.

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 2. It also means that on a contested issue one of two parties has to introduce
evidence.

In the case of Jarnail Sen v. State of Punjab that in, if the prosecution fails to
adduce the satisfactory evidence to discharge the burden, they cannot depend
upon evidence adduced by the accused person in support of their defense.

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:-

Whoever desires any Court to give judgment as to any legal right or liability
 

dependent on the existence to facts which he asserts, must prove that those facts
exist.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
For Example: A and B are Appellant and Respondent. In court A says that B has
committed a crime yesterday. Here A must prove that B has committed a crime.

In Jarnail Case (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 beyond all reasonable doubt. If Burden of
proof lacks or not proved, there are chances of dismissal of the case.

In Champalal v. Thakurji Gopalji (1998), the suit property alleged to be

public trust by the defendant. Plaintiff not admitting above fact in entire
proceeding. Fact asserted by defendant and denied by the plaintiff. Onus of
proving lies on defendant.

Burden of proof is of two types: burden of proof on pleading and burden of

adducing evidence.
The burden that arises from pleading depends on upon the facts asserted or
denied and is determined by the rules of the substantive law and statutory law
and by presumption of law and fact.

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A adopted son of B files case on W widow of B on declaration that he is the
owner of the property. W denies the fact of adoption. Here A desires the court
to give judgement in his favour depending upon the fact of the adoption by B.
so he must prove that he was adopted by B.
In the above illustration the burden has arisen from pleading and is determined
by the rule of substantive law.
The burden of adducing evidence rests on the party who would lose if no
evidence led by any of the parties. A files a suit on basis of a bond. B admits
the execution of bond but pleads that bond was taken by practising fraud on
him. In this case execution of bond is admitted and if no evidence is given by B
on fraud, A will get the decree and B will lose the case.
Therefore the burden to lead evidence first lies on B and then A will produce
evidence to rebut the evidence led by B. This kind of Burden of proof is
sometimes termed as onus of proof (onus probandi).
Burden of Proof in a Civil Lawsuit:-
When an individual files a civil lawsuit against someone else, the burden of
proof rests on his or her shoulders. In civil cases the burden of proof in sense of
proving a case is discharged by more superiority of probability. The standard of
proof (beyond reasonable doubt, reasonable indication, probable cause,
preponderance of evidence etc.) applies in all the civil cases. In civil cases, the
plaintiff has the burden of proving his case by a preponderance of the evidence.
A "preponderance of the evidence" and "beyond a reasonable doubt" are
different standards, requiring different amounts of proof The party who filed
the lawsuit, called the “plaintiff” or the “petitioner,” must prove that the things
alleged in the lawsuit are true and that the other party, called the “defendant” or
the “respondent,” caused harm or damages.
The standard to which the plaintiff must prove his case in a civil lawsuit is quite
different from the standard of proof required in a criminal case. In a civil case, it
need only be proven by a preponderance of evidence (sufficiency of evidence),
which means that it is more likely that the defendant’s actions caused the
plaintiff’s damages. There are some types of civil cases that are considered to be
more serious. These cases must be proven by clear and convincing evidence,
which means that the evidence presented against the defendant must have a high
probability of being true

Burden of Proof in a Criminal Case:-

In a criminal case, the accused person is by law assumed innocent until the
prosecution proves that he is guilty. The burden of proof in a criminal case rests

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on the prosecution, with no requirement that the defendant prove that he is
innocent but on he has to create a doubt about plaintiffs statement. The standard
to which the prosecution must prove the defendant’s guilt is much higher than
in a civil case, as the defendant’s freedom is often at risk. In a criminal matter,
the prosecution must prove, beyond a reasonable doubt, that the defendant did
the deed.
There are a few circumstances in which a defendant may want to take action in
proving his or her innocence. If the defendant wishes, for instance, to make a
claim that he is not guilty by reason of insanity, the burden of proving that he
was insane at the time of the crime rests on the defendant.
On whom burden lies (onus probandi) or ONUS OF PROOF
(Section 102):
The burden of proof in a suit or proceeding lies on that person who fails, if no
evidence at all were given on either side.
This rule lays down a text for ascertaining on which side the burden of proof
lies. The initial onus is on the plaintiff. If he discharges that onus and makes out
the case which entitles him to relief, the onus shifts on the defendant to prove
the circumstances which would disentitle the plaintiff to that relief.
Section 102 Evidence act deals with the burden of proof in the sense of
adducing evidence. It lays down that the burden of adducing evidence rests
upon the party who would fail if no evidence at all, or no more evidence, as the
case may be, were adduced by either side.
Example-
‘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’ will succeed, as the bond is not disputed and
fraud is not proved. Therefore, the burden of proof is on ‘B’.
In case of Triro v. Deo Raj (1993) there was a delay in filing the suit. The
defendant has taken the plea of limitation period. The plaintiff was in position to
know the cause of delay. The burden of proof of adducing evidence that the
case was within prescribed limit was on the plaintiff.
Burden of proof is constant and Burden to lead evidence (onus
probandi) is shifting:-
Section 101 deals with first kind of burden of proof whereas section102 deals
with onus of adducing evidence. The burden of adducing evidence is described
as ‘shifting’. Section 102 shows that the initial burden of proving a ‘prima facie’

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case in his favour is cast on the plaintiff. When he gives such evidence as will
support a prima facie case, the onus shifts on the defendant to adduce rebutting
evidence to meet the case made out by the plaintiff. As the case continues to
develop, onus may shift back again to the plaintiff. It is easy to decide at what
particular stage in the course of evidence the onus shifts from one side to
another.

DIFFERENCE BETWEEN BURDEN AND ONUS OF PROOF

BURDEN OF PROOF ONUS OF PROOF

A Person who raises allegations Proving evidence may vary to

have burden to prove. either side of the parties.

If the person not produces proper If the person not produces proper
evidence then there are chances evidence then the chance will go
of dismissal or victory goes to to opposite party to prove.
defendant.

Chance given mostly to the Chance given to either party

person who had raised what court feels
allegations.

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 For Example A says B has committed For Example A say he heard gunshot
crime yesterday. Here A must prove yesterday near Garden. C say he did
that B has committed crime. not hear gunshot. As court has not
satisfied it asks them to produce
evidence. After referring to evidence
to A then the court refer evidence of
C. In this example we can understand
were both parties given a chance to
produce an evidence.

Burden of proof as to particular fact (Section 103):

The burden of proof as to a 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.
Example: A prosecutes B for theft, and wishes the court to believe the B
admitted the theft to C. A must prove the admission.
On other hand B wishes the court to believe that at the time of question, he was
elsewhere (PLEA OF ALIBI). He must prove it.
The principle of this section states that once a party desires the court to accept
and act based on existence of a fact he must prove it. This principle is called
‘RULE OF CONVENIENCE OF BURDEN OF PROOF’.
The difference between section 103 and 101 is that under section 101 the party
has to prove all the fact which he alleges to entitle him to a judgement when
burden of proof is on him. Section 103 provides for the proof of some one
particular fact and not whole of the facts.
For example: In a criminal case there are numerous and complicated facts which
make the prisoner’s guilt must be proved by the prosecution. But if the prisoner
wishes to prove a particular fact e.g. at time of crime he was away, he must
prove that particular fact. So the burden of proof of a particular fact is upon the
party who alleges the affirmative of such fact.
Section 103 is closely related to section 106. Hence both the sections should be
read together.

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SEC 106 - BURDEN OF PROVING FACT ESPECIALLY
WITHIN KNOWLEDGE:-
Section 106 states
When any fact is especially within the knowledge of any person, the burden of
proving the fact is upon him.
For Example: A Person is travelling in a Bus from koyambedu to Guindy 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.
In Eshwari 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 where they hiding under the bed and also how did
that person (deceased) died with so much injuries on bed as in this case man and
women were the only person who could have the particular knowledge about
the death of the person
Section 101, 102 &103 are cardinal rules of ‘Burden of proof’ in Indian
evidence law.
SEC - 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.
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.
Whenever it is necessary to prove a fact, in order to render evidence of any
other fact admissible, the burden of proving that fact is on the person who wants
to give such evidence. The burden of proof in the sense of adducing evidence
applies not only to matters which are subject of express allegation in the
pleadings, but also to those that relate merely to the admissibility of evidence or
to the construction of the document.
Therefore a party desiring to adduce a hearsay evidence or secondary evidence
of a lost deed must first establish the conditions and evidence necessary to its
reception or admission.

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Burden of proving fact that case of accused comes within
exceptions (Section 105):
When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exception in the
Indian Penal Code, 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.
Example-
(a) ‘A’ alleged of murder defend the offence by giving exception of grave
and sudden provocation practiced by complainant, he was deprived of the
power of self-control. The burden of proof is on ‘A’ to prove that at the
time of act he was in grave and sudden provocation.
(b) 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
forcely down. As A pushed B, B lost his balance and fallen down and his
head was hit by a stone harshly. At that moment itself B dies. Here A
must prove that in self-defence he pushed down B unfortunately it lead to
Death
(c) Section 325 of the Indian Penal Code provides that whoever, except in
the case provided in Section 355, voluntarily causes grievous hurt, shall
subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325
The burden of proving the circumstances and bringing the case under condition
of section 355 lies on A.
The section is an important qualification of general rule that in criminal trial, the
burden of proving everything essential to establishment of the charge against
the accused lies upon the prosecution. This section is an application and
extension of the principle laid down section 103. According to this section the
burden of proof is upon the accused showing existence, if any, of circumstances
which brings the offence charged within any of the special as well as of any of
the general exceptions or proviso contained in any part of the penal code or ant
law defining the offence. The meaning of this section is not only for prosecution
to examine all possible defence which might be put forward on behalf of the
accused person and to prove that none of them applies.
The accused can also discharge burden under section 105 by preponderance of
possibility in favour of his plea.

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It must however be kept in mind that burden of proof in a criminal trail remains
at all times upon the PROSECTION, and it is only shifted upon the accused in
so far as an accused person may set up the existence of circumstances bringing
his case within any of the general exceptions of the Indian Penal Code or within
any general exception or proviso contained in any other part of the same code.
The most important point to remember is that when the initial burden is on
prosecution, it must be proved beyond the RASONABLE DOUBT (a fair doubt
based upon reason and common sense and it must grow out of the evidence.).
Some of the exceptions of criminal cases are as follows:
SELF DEFENCE: - The burden of proof of self-defence lies on the accused.
But he has not proved it beyond reasonable doubt. If by the evidence placed
before the court, by the accused or by the prosecution a reasonable doubt is
created in the mind of the court that the accused might have acted in the
exercise of the right of self-defence, he is entitled to acquittal.
In RIZWAN and others v. STATE OF CHATTISGARH (2003), the
Supreme Court held that the burden of establishing plea of private defence is on
accused. It stands discharged by showing preponderance of probabilities in
favour of plea. When the right of private defence is pleaded the defence must be
a reasonable and probable version satisfying the court that harm caused by the
accused was necessary for either warding off the attack or forstalling the further
reasonable apprehension from the side of the accused.
INSANITY:- If an accused pleads insanity, he has to prove that he was insane
at the time of occurrence.
A person alleged to be suffering from any mental disorder cannot be exempted
from the criminal liability ipso facto (by that very fact). The onus is on the
accused to prove that he is suffering from such mental disability or condition
that he would not be expected to be aware of consequence.
In STATE V. KARTIK CHANDRA (1951) the court held if a person by
reason of unsoundness of mind is incapable of knowing the nature of the act or
that he is doing what is either wrong or contrary to law, he cannot be held guilty
of any criminal intent. Such a person lacks mens rea and is entitled to an
acquittal. If the accused has taken the plea of insanity, it lies on him to prove
that he was insane at the time of commission of the offence.
WANT OF MATURITY:- Section 82 and 83 of the Indian Penal Code deals
with the question as to how far the infancy of the offender would be a defence
to a criminal charge. Section 82 says child of age under 7 years has absolute
immunity from criminal liability whereas in section 83 immunity is conditional
upon its being found that the child offender has not attained sufficient maturity
of understanding to judge of the nature and consequence of the act.
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It has been held that non-attainment of maturity in case of child of age between
7-12 years would have to be specially pleaded and proved (burden of proof lies
on accused party) but this approach was not appreciated. It is always
permissible by the court to arrive at a finding whether there was lack of maturity
of understanding according to the circumstances of the particular case. It is to be
kept in mind that a child between 7 and 12 years of age cannot be convicted of
any offence unless it is expressly found that the child has attained sufficient
maturity or not to understand the consequence of the act but such findings can
be arrived at only by the circumstances of the case.
In case of QUEEN V. BEG RAJ KRISHNA there was a child who took
ornaments and immediately sold it for five annas, it was held that he attained
sufficient maturity understanding.

BIBLIOGRAPHY

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 BOOKS:
THE LAW OF EVIDENCE
BY – BATUK LAL

 WEBSITES:
WWW.LAWNN.COM
WWW.LEGALTIMESJOURNAL.IN
WWW.WIKIPEDIA.COM

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