SPECIAL RULES OF BURDEN OF PROOF

UNDER LAW OF EVIDENCE

Harsh Gunjay

INTRODUCTION

Burden of proof, in layman’s terms is the onus on a party of case to prove a certain fact in the
court of law that has been asserted by them in order to get a desired judgment. Section 101 of
Indian Evidence Act, 1872 defines burden of proof, it states 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. When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that person1”

During legal proceedings, burden of proof plays an imperative role in decision of the award of
case. It is the legal requirement to prove a fact that may support or defeat the claim. If burden of
lies on one party, then that party has legal obligation to put forth evidences that are in line with
the claim. Generally, the party that brings the case to court, called plaintiff, has the onus of
burden of proof on them. To strengthen the claim, evidences in forms of objects, documents and
testimonies form witnesses are presented during the proceedings. It is on the judge to decide
weather the party has been able to satisfy the burden of proof and what would be the
consequence of success or failure of proving the claim. The extent of argument and convincing
of the judges depends on the circumstances of the case. For instance, generally in criminal cases,
the plaintiff must prove that facts beyond a reasonable doubt for the court to award a punishment
to the accused, however, in civil cases a less stringent standard of proof is required i.e.,
preponderance of probabilities. Burden of proof as a concept has been an essential tool in
effective proceedings of a case, it has given the tedious proceedings of a court a direction thus,
making sure that court of law could function effectively and justice could be delivered
unhindered. Onus Probandi2 which translates to Burden of proof is the legal maxim for burden
of proof. This article shall focus on special provisions regarding burden of proof as provided in
1
Indian Evidence Act, 1872, , https://www.incometaxindia.gov.in/pages/acts/indian-evidence-act.aspx (last visited
Mar 1, 2022).
2
Onus Probandi - Legal Maxim, , https://bnblegal.com/onus-probandi/ (last visited Mar 1, 2022).
section 106 to 108 of Indian Evidence Act, 1872. However, burden of proof is dealt in Chapter
VII form section 101 to 114 in the Indian Evidence Act, 1872. The Act covers all aspects of
proof in court of law, where section 101 defines burden of proof, section 102 tells on whom the
burden lies. 103rd section of Chapter VII states the burden of fact, i.e., when a party wants the
court to believe a particular fact in a case for strengthening his side or weakening other side’s
clam, the onus of proving that fact lies on the party that asserts that fact in the court during the
proceedings. Section 104 deals with the onus a of proving a fact that is necessary to make a
claim admissible, as illustration (a) in the Act provides that, if A wishes to prove that a certain
document of is a dying declaration of B then then A must prove that B is dead. 105 th section
states that, whenever an accused takes defense of any of the general exceptions under IPC
Section 76 to 106 or any other exception provided in other statutes, then onus of proving the
facts that will lie upon the accused who is taking the defense of that exception. For instance, if A
hurts B in exercising his right of private defense, then it is on A to prove that he was acting
within his right of private defense3. From Section 106 to 108 of the act is the special provision
under burden of proof that shall be dealt with in this article as aforementioned.

SPECIAL PROVISONS OF BURDEN OF PROOF

Section 106

Section 106 of the Indian evidence act is read as,

“When any fact is especially within the knowledge of any person, the burden of proving that fact
is upon him.4”

This section is seen as an exception to general rule contained in section 101 of the act. As section
101 states that the onus of proof of a claim is on the party who asserts the claim. However,
section 106 states that burden of proof of a certain fact that is especially within the knowledge of
someone is on the person with such knowledge he may or may not have asserted that claim. This
section takes the stage after the prosecution has once proved the case beyond reasonable doubt
and now its on the defendant to assert and prove a fact that is within his special knowledge so

3
THE INDIAN PENAL CODE 1860, .
4
Indian Evidence Act, 1872, .
that he can get acquittal. The burden on the accused is, however, is discharged when the accused
person establishes his case by preponderance of probabilities and it is not necessary anymore to
prove his case on the stringent test of beyond reasonable doubt. It has been a general conviction
during the proceedings of a case that whenever prosecution presents enough evidence that it may
substantially lead to conviction of the defendant, then the application of this sections takes the
center stage giving the defendant a chance to prove a claim that is within his special knowledge
to strengthen his case. Courts are established on the principal of audi alteram partem, thus,
section 106 gives a fair chance for court to re-examine the facts to the case and an opportunity
for the accused to be heard and assert the claim that is within his special knowledge, enabling the
court to hear complete facts before coming to a decision.

In case of Sirish Basumatary vs The State Of Assam And Anr on 20 December, 2021 5 the court
held that; “In such circumstance, the chain of events sought to be completed by the
prosecution in order to invoke the provisions of Section 106  of the Evidence Act to establish
the case beyond all reasonable doubts that it is the accused who had committed the offence
of causing the death of the deceased would have to be accepted to have not satisfied the
requirement of completing the chain of events. If the said fact is not established that the
mobile phone of the deceased was seized from the accused, the requirement of Section
106 of the Indian Evidence Act requiring the accused to explain the circumstance would not
be satisfied in the present case”.

In case of Ram Kumar Singh vs The State Of U.P. on 20 May, 2015 6 hon’able court held that;
“this is a case where Section 106 of the Evidence Act is clearly attracted which requires the
accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the
prosecution and Section 106 is not meant to relieve it of that duty but the said provision is
attracted when it is impossible or it is proportionately difficult for the prosecution to establish
facts which are strictly within the knowledge of the accused. Recovery of dead bodies from
covered gutters and personal belongings of the deceased from other places disclosed by the
accused stood fully established.”
5
Sirish Basumatary vs The State Of Assam And Anr on 20 December, 2021, ,
https://indiankanoon.org/doc/18848160/ (last visited Mar 1, 2022).
6
Ram Kumar Singh vs The State Of U.P. on 20 May, 2015, , https://indiankanoon.org/doc/151680455/ (last visited
Mar 1, 2022).
Section 107

Section 107 of Indian Evidence Act deals with the onus of proving death of a person. It states
that, 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 it7.

As stated, if one asserts a claim that a certain someone is deceased, then its onus upon the party
that asserts the fact to prove his death, if the alleged deceased is known to be alive in last thirty
years. For instance, if A wishes to establish a certain document is dying declaration of B, then it
is onus of A to prove that, B has been dead and has to be proved under Section 104 off course,
and also A has to prove under Section 107 that B is dead indeed, provided that B was known to
be alive for last thirty years. This section gives direction to court so that the case can go in a
certain way and court can give decision accordingly.

Section 108

Section 108 reads as,

“Provided that 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.”

It states same that, when a man is unheard for a certain period it is presumed that he has ceased
to exist and the one who claims that he is alive has to take the onus of proving the fact that he is
alive. On principle it is same as the Section 107, as in both section the onus of proving is on the
person who claims something that is contrary to general presumptions.

In case of Gurdit Singh And Ors. Etc vs Munsha Singh And Ors 1977 AIR 640 8, The court held
that, a certain Kishan Singh’s death must be presumed since, the other party on whom the burden
of proof lied could not come forth with substantial evidences to prove that Kishan Singh is still

7
Indian Evidence Act, 1872.
8
Gurdit Singh And Ors. Etc vs Munsha Singh And Ors. Etc on 29 November, 1976, ,
https://indiankanoon.org/doc/1475334/ (last visited Mar 1, 2022).
existing. Since, eight years has elapsed and he has been unheard of, death of Kishan is to be
presumed by court under Section 108 of the Indian Evidence Act.

In case of Tadepalli Ram Rathnam vs Kantheti Varadarajulu And Ors. AIR 1970 AP 246 9, The
district court of Machilipatnam, held that; “A close reading of  section 108  can leave no one in
doubt that death is to be presumed after a certain interval, that is seven years, but there is no
presumption as to the time of the person's death. The actual time of death on the basis of which
any right is claimed by the plaintiff has to be proved by him like any other fact by admissible
evidence, direct or circumstantial.”

CONCLUSION

Special Provisions under Burden of proof, i.e., Section 106 to 108 Indian Evidence Act, 1872,
put onus on parties to come forth with evidence that support their claim. Unlike Section 102 that
puts the responsibility of proof on the prosecution. Section 106 gives a chance for defendant to
prove a claim that is within his special knowledge. Evidence Act is an imperative part of
procedural law as it ensures effective functioning of proceedings of court and gives a direction to
the hearings of cases thereby ensuring that court can deliver justice unhindered. Special
provisions put the onus on the right person as in both the death related sections i.e., 107 and 108,
make sure the responsibility of the arduous task of coming forth with evidence is put on the party
that asserts the claim opposite to established or presumed belief.

9
Tadepalli Ram Rathnam vs Kantheti Varadarajulu And Ors. on 29 August, 1969, ,
https://indiankanoon.org/doc/579317/ (last visited Mar 1, 2022).