UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

PROJECT ON LAW OF EVIDENCE

TOPIC: – BURDEN OF PROOF

Under the Supervision of: Prof. Anil Kumar Vishwakarma

NAME: DIKSHA BISHNOI

ROLL NO: R450220288

SAP ID: 500085995

NAME: PRIYANSHI MODI

ROLL NO: R450220318

SAP ID: 500087042

NAME: AARYAN SINGH

ROLL NO: R450220279

SAP ID: 500086740

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Sections 101-114 of the Evidence Act address the issue of "who is to lead evidence and establish the
case." These are known as "Burden of Proof" principles. The Burden of Proof is nothing more than a
legal burden. It simply implies that the party has a responsibility to establish the fact, and this must be
done in order for the court to make a judgment, which can either be in his favor or in his opponent's
favor. This burden of proving is known as the burden of proof, i.e. (onus probandi), and if no evidence is
given by the side on whom the burden is placed, the matter will be decided against him.

Section 101
The principle of burden of proof is described in Section 101 of the Law of Evidence Act, which states
that when a person is required to show the existence of a fact, he bears the burden of providing evidence
for the same. The issues concerning the burden of proof are addressed in Chapter VII of the Act. The
word "burden of proof" is not defined in the Act, although it is a fundamental principle of criminal law
that the accused has the presumption of innocence unless proven otherwise. 
Illustration: If A wants the court to give punishment to B for committing theft. The burden to prove that
B has commited theft lies upon A.

Principles of Burden of proof

The Burden of Proof principle is founded on the concepts of onus probandi (burden of proof) and factum
probans (proving a fact). While the burden of proof stays constant, the onus of proof transfers from one
party to the other. The facts that must be proven are those that are not self-evident in nature. In the case
of Jarnail Sen v. State of Punjab, it was said that if the prosecution fails to present sufficient evidence to
meet the burden, they cannot rely on evidence presented by the accused in support of their defence.

To succeed, the party bearing the burden of proof must prove a prima facie case. He cannot exploit the
weakness of his opponent's argument if he fails to do so. He must prevail on the strength of his own
right and the clarity of his own evidence.
Burden of proof has two meanings:
1.  the burden of proof as a matter of law and pleading,
2.  the burden of establishing a case.
In case of Narayan Bhagwantrao v Gopal Vinayak these two different meanings of burden of proof were
defined.

Initial Burden of proof

In criminal trials, the premise that the prosecution has the first burden of proving that the accused
committed a crime stays consistent. If the prosecution fails to prove the accused's guilt beyond a
reasonable doubt, the accused is entitled to an acquittal. If the burden of proof is placed on the wrong
party, the Supreme Court declares that the entire legal system would be tainted. When a landlord seeks
eviction of tenants on the basis of genuine personal necessity, he has the burden of proving the same.
 In the case of Banwari Lal v. Road Transport, where goods were lost by the carrier, the carrier bears the
burden of proving that there was no negligence on his part.The defence version may even be incorrect;
nonetheless, the prosecution cannot benefit from the falsity or other flaws in the defence version as long
as it fails to meet its first burden of proving the case beyond a reasonable doubt.

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 In the matter of Triro v. Dev Raj, there was a delay in filing the case that went past the limitation
period, and the prosecution was required to justify the delay.

In marriage cases, the burden of evidence concept that applies in civil matters applies. A party seeking
divorce must substantiate the reasons for divorce, such as abandonment, cruelty, or adultery.

Section 102
This section aims to identify the side on whom the burden of proof rests; the burden of proof rests on the
party whose argument will fall if none of the parties produces evidence. The side who acknowledges a
truth bears the burden of evidence, not the one who disputes it. Until proven otherwise, the law
presumes sanity in cases of insanity or unsoundness of mind. In Ram Raja Ram v. Dhruba Charan Jena,
the party claiming no consideration under Section 118 of the Negotiable Instruments Act must present
proof. In an election petition, the petitioner failed to demonstrate the percentage of total votes cast in
favor of an incorrectly accepted candidate. The election petition was denied by the Supreme Court.
When a party to a case fails to submit evidence and refuses to be cross-examined, a presumption arises
that the case he has established is incorrect.The onus of proving medical negligence is on the
complainant, according to C.P. Sreekumar (Dr) v S. Ramanujam. A mere allegation in a complaint is not
evidence. The complaint must be supported by substantial proof. The complaint is required to provide
both facta probanda and facta probantia.

Section 103
Section 103 requires verification of one specific fact. It is an exception to the general rule outlined in
Section 101 of the Evidence Act. According to Section 103, if a party asks the court to believe and act
on the existence of a specific fact, the party must show the specific fact. In a criminal case, for example,
the prosecution must show the accused's guilt. However, if the accused desires to show a specific fact,
such as being absent at the time of the crime, he must do so.
In the legal field, this particular fact is known as alibi. If a party wishes to exploit such an advantage, the
law demands that he use the plea of alibi. The accused has entered an alibi plea, and it is up to him to
prove it. The owner of a motor vehicle killed two people and claimed that the accident was caused by
technical failure of the brakes and steering wheel; the burden of proof was on the owner. When a person
claimed preferred plot allotment under particular regulations, he had the responsibility of showing his
eligibility to preferred plot allotment.

Section 104
This section states that when admissibility of one fact depends upon the existence and admissibility of
another fact, the party which wants to prove it will depend upon the fact that makes the subsequent fact
admissible.
Illustration: A wants to prove dying dеclaration of B, A must prove B is dead.

Section 105
This section relates to the exceptions made available to the accused as a result of "the general exceptions
of the Indian Penal Code or any of the particular provisions." The fundamental concept compels the
Court to presume the accused's innocent unless proven otherwise, and it is the prosecution's
responsibility to show the accused's guilt. Once guilt is proved, the onus shifts to the accused, who can
apply general exceptions under I.P.C. to defend themselves.

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The possibility that the accused caused death in self-defense was judged to be substantial in Pratap v
Stare of U.P., even though he had not taken his defence in the committal process. The Supreme Court
once again ruled that the burden of establishing that the case falls within one of the broad exceptions
might be discharged by demonstrating a preponderance of likelihood. The burden of proof is on the
accused, who raises the plea of self-defense, according to section 105 of the Evidence Act, and in the
absence of proof, the court cannot infer the truth of the plea of self-defense.
 The burden of proof imposed on the accused when requesting an exemption under Section 105 is lower
than that imposed on the prosecuting party in identical circumstances. An accused may not be required
to present evidence to prove his or her innocence beyond a reasonable doubt. However, if an accused
claims that his specific circumstances come inside an exemption under the abovementioned rule, he is
solely responsible for establishing the same.

Section 106
Under the stated provision, anybody who claims to be aware of a certain truth bears the burden of
demonstrating that fact. The term "Specially inside knowledge" is used throughout the section to
indicate that possession of such information transfers the burden of evidence to the owner.
In the case of Eshwarai v. Karnataka, a man and a woman were discovered in the bedroom of a person
who had been murdered due to extensive injuries, and the burden of proving the justification for their
presence was placed on them. It was considered that because they were there at the site of the crime,
they would have particular knowledge of the circumstances surrounding the person's death.

Section 107
The burden of proving the death of a person known to have been alive within thirty years.— When the
question is whether a man is alive or dead, and it is demonstrated that he was alive within the last thirty
years, the burden of proving that he is dead falls on the person who affirms it.

This section is primarily based on the principle of the continuity of the things. Once a state of things is
shown to exist, the law presumes that it will continue to exist for the period that such state of things
ordinarily lasts. This principle also applies to life continuity for at least 30 years. On February 23, 2011,
the Court noted in Lilly Packiamani Aruldoss vs The Accountant General (A&E) that Section 107 of the
Indian Evidence Act, 1872, refers to the burden of proving death of a person known to have been alive
within thirty years. In fact, Section 107 of the Indian Evidence Act of 1872 states, "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."

Section 108 
The burden of proving that a person who has not been heard from in seven years is alive. — If the
question is whether a man is alive or dead, and it is proven that he has not been heard of for seven years
by those who would naturally have heard of him if he were alive, the burden of proving that he is alive is
[shifted to] the person who affirms it. —[Provided that when] the question is whether a man is alive or
dead, and it is proven that he has not been heard of for seven years by those who would naturally have

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heard of him if he were alive, the burden of proving that he is alive is [shifted to] the person who affirms
it."

Sections 107 and 108 must be read together because they are complementary to one another. Section
107 is based on the principle of continuity of life, whereas Section 108 is a proviso to Section 107.
Section 107 addresses the presumption of life continuation, while Section 108 addresses the presumption
of death. Section 107 is merely a deduction from this presumption.

On November 29, 1976, Gurdit Singh and others vs Munsha Singh and others "The court ruled that the
plain fact of the matter is that no proof of Kishan Singh's continued existence since 1945 has been
presented. Eight years have passed since the High Court's decision in 1951 that the death of Kishan
Singh could not be proven. There is no way to avoid the conclusion that Kishan Singh's death must now
be assumed. " It was also noted that section 108 of the Indian Evidence Act does not require the date of
death of the person whose death is presumed to be established. All that is stated is that if a person is not
heard from for seven years, his death may be presumed. There is no presumption as to the time of death
at any point during that period.

Section 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
demonstrated 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, falls on the person who affirms it. This
section presumes that when a person stands a relationship of partners of a firm, landlord and tenant, or
principal and agent, such relationship will continue unless the contrary is proven. When certain people
are shown to be related to each other, the presumption is that the relationship will continue, and if one of
them claims that they are no longer related, he must prove the relationship's non-existence. The burden
of proving the landlord-tenant relationship and the alleged landlord's denial of ownership falls on the
party who denies the relationship and ownership.

Section 110
Burden of proof of ownership.— When it is questioned whether a person is the owner of anything that
he is shown to be in possession of, the burden of proving that he is not the owner falls on the person who
affirms that he is not the owner. When a person is shown to be in possession of any property, the
presumption is that he is the owner of that property, according to this section. If he denies ownership, he
bears the burden of proving that he is not the owner of the property. Possession of property, whether real
or personal, is presumed to be full ownership.

The legal policy is to allow a person to keep possession until a rival claimant proves his title. Thus, the
presumption under section 110 would apply only if two conditions are met: (i) the plaintiff's possession
is not wrongful, and (ii) the defendant's title is not proved. A is in possession of a bicycle, for example.

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But B claims ownership of the cycle,so in this case B must prove that he purchased it, and the burden is
on B.

In Chuharmal S/O Takarmal Mohnani vs Commissioner Of Income-Tax, on 2 May, 1988, the High
Court held that: the watches were seized as a result of the search in the petitioner's house and a
Panchnama was prepared, and that under Section 110 of the Indian Evidence Act, it clearly establishes
that the petitioner was in possession of the wrist watches. The petitioner failed to present any evidence,
and he failed to discharge the onus by demonstrating that the wrist watches did not belong to him.

Section 111 
Proof of good faith in transactions in which one party has active confidence.— When the good faith of a
transaction is called into question between two parties, one of whom is in a position of active confidence
toward the other, the burden of proving the transaction's good faith falls on the party in a position of
active confidence.

Illustration

In a suit brought by the son, the good faith of a sale by a son who has just turned 18 to a father is called
into question. The father bears the burden of proving the transaction's good faith.

This section requires the person in the position of trust and confidence to act in good faith. The law
requires that the party enjoying confidence act in good faith towards the other, and it is his burden to
prove that he did so in good faith. The term "active confidence" means and indicates that "the
relationship between the parties must be such that one is obligated to protect the interests of the other."
When one party imposes the duty of good faith on another who is in a position of trust and confidence, a
relationship of active confidence exists between the contracting parties. Such a relationship exists in
situations such as father and son, advocate and client, doctor and patient, husband and wife, and so on.
In all of these cases, the law imposes a duty of good faith on those in the aforementioned positions.

There is an exception to this rule when the contracting parties have a fiduciary or confidential
relationship. Where there is a valid transaction between the parties and one of them gains benefit from
the transaction without acting in good faith or is taking advantage of his position. In such cases, the
burden of proving the transaction's good faith falls on the transferee or beneficiary, and the relationship
of active confidence must be established. The defendant, dominant party, i.e. the party in a position of
active confidence, would bear the burden of proving good faith in the transaction.

In Jawahar Lal Wali v/s J. and K., the Supreme Court of India held that a person who claims to have
acted in good faith must appear in person before the court to establish his claim through examination
and cross examination. Other witnesses' opinions and feelings on the subject may not be sufficient on
that point.

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Section 111A 
Presumption as to certain offences:

(1)   Where a person is accused of committing any of the offences specified in subsection (2), the
person is presumed to have committed the offence in—

(a) any area declared to be a disturbed area under any enactment, for the time being in force,
making provision for the suppression of disorder and the restoration and maintenance of
public order; or

(b) Any area in which there has been extensive disturbance of the public peace for more than
one month, and it is shown that such person was at a place in such area at a time when
firearms or explosives were used at or from that place to attack or resist members of any
armed forces or 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 was there.

(2)   The offenses referred to in sub-section (1) are:

(a) an offence under Section 121, Section 121A, 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.

This section was added by the Terrorist Affected Areas (Special Courts) Act of 1984, which
went into effect on July 14, 1984.

Any person can be presumed to have committed the offenses listed in sub-section 2 of this
section.

Section 112 
Birth during marriage, conclusive proof of legitimacy — The fact that a person was born during the
continuation of a valid marriage between his mother and any man, or within two hundred and eighty
days after its dissolution, with the mother remaining unmarried, shall be conclusive proof that he is the
legitimate son of that man, unless it can be demonstrated that the parties to the marriage had no access to
each other at any time when he could have been begotten.

The section is based on the maxim pater rest quern nuptioe(he is the father whom the marriage
indicates). The effect of Section 112 is that a child born to married parents is presumed to be their child.
The same effect / presumption occurs when the marriage is dissolved and the child is born within 280

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days of the dissolution, with the mother remaining unmarried in the interim. The spirit of Section 112 is
that once a valid marriage is established, there is a strong presumption that children born during wedlock
are legitimate. When the aforementioned requirements are met, the presumption of legitimacy becomes
a conclusive presumption of law.

In Nandlal Wasudeo Badwaik v/s Lata Nandlal Badwaik case husband was not the father of wife's
daughter – The Supreme Court ruled that when there is a conflict between a conclusive proof envisaged
by law and a proof based on scientific advancement accepted by the world community to be correct, the
latter must prevail. Although the presumption of legitimacy is a conclusive presumption, it is also based
on certain facts that must be present in order for legitimacy to be established. However, this is a
rebuttable presumption, and evidence can be presented to show that there was no access.

A child born within 280 days of the husband’s death is a legitimate child.

The prayer for establishing legitimacy and maintenance by a child through a blood test was denied in
Goutam Kundu v The State of West Bengal. The court held that there must be a strong prima facie case
that the husband must establish non-access in order to overcome the presumption created by section 112
of the Evidence Act. When a child is born within 5 months of the dissolution of a marriage, the child's
legitimacy is presumed. The burden of proof shifts to the husband to demonstrate that access with the
divorced wife was impossible and thus the child is illegitimate.

The two spouses had access to each other after marriage for a number of days in the case of Sharmila
Devi v Shankar Das, and the child was born after six months of marriage. The Himachal Pradesh High
Court ruled that the child was legitimate.

Section 113
Proof of cession of territory— A notification in the Official Gazette that any portion of British territory
has been ceded to any Native State, Prince, or Ruler 1[before the commencement of Part III of the
Government of India Act, 1935 (26 Geo. 5, ch. 2)] shall be conclusive proof that such territory was
validly ceded at the date specified in such notification. — A notification in the Official Gazette that any
portion of British territory has been ceded to any Native State, Prince, or Ruler 2[before the
commencement of Part III of the Government of India Act, 1935 (26 Geo. 5, ch. 2)] shall be conclusive
proof that a valid cession of such territory occurred on the date specified in such notification.

A government notification of the cession of territory to another state is conclusive proof that the cession
of such territory occurred on the date specified in the notification.

Section 113A
Presumption as to abetment of suicide by a married woman — When the question is whether a woman's
suicide was abetted by her husband or any relative of her husband, and it is expressed that she

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committed suicide within seven years of her marriage and that her husband or such relative of her
husband subjected her to cruelty, the Court may presume, having regard to all other circumstances of the
case, that such suicide was abetted by her husband or such relative of her husband. The Criminal Law
(Second Amendment) Act 46 of 1983 added section 113A. This was enacted in response to an increase
in the incidence of dowry deaths, which was a severe problem. 

In another case, Gurubachan v Saptal Singh, the Supreme Court ruled that Section 113A does not create
a new offence, nor does it require him to prove the existence of a specific factual situation through the
court. Similarly, in order to invoke the provisions of Section 113A of the Indian Evidence Act, the
burden of proving the fact falls on the person who affirms it.

This burden of proof principle applies to all matrimonial offences and must be proven: 

1. A married woman must commit suicide. 

2. Suicide must have been abetted by her husband or a family member of her husband.
3. Suicide must occur within seven years of the marriage.
4. Her husband must have subjected her to cruelty (as defined in Indian Penal Code 498A). (The
term cruelty shall have the same meaning as defined in Section 498A of the Indian Penal Code.)

Section 113B
Dowry death presumption. When the question is whether a person committed the dowry death of a
woman and it is shown that soon before her death, such woman was subjected to cruelty or harassment
by such person for, or in connection with, any demand for dowry, the court shall presume that such
person was responsible for the dowry death.

Dowry death is defined in I.P.C. Section 304. It covers an unnatural death that occurs within 7 years of
marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any demand for dowry, such death
shall be called "dowry death," and such husband or relative shall be deemed to have caused her death.
Section 113B uses the word "shall" rather than "may," implying that it is a legal presumption. The court
is required to raise a presumption that the accused caused the "dowry death" if the essentials mentioned
above are proven. If the essential ingredients are proven, the court has no discretion in drawing the
presumption under this section and is bound to do so under Section 113B of the Indian Evidence Act. 

In the case of Keshab Chandra Pandey v State, the presumption under Section 113B of the Indian
Evidence Act may be raised only if the following essentials are proven: 

1. Whether or not the accused committed dowry murder. As a result, the presumption can be raised
if the accused is being tried for an offence under section 304B of the Indian Penal Code. 
2. The woman was subjected to cruelty or harassment at the hands of her husband or his family. 
3. The cruelty or harassment was for or in connection with any dowry demand.
4. This cruelty or harassment occurred shortly before her death.

Another case, Mangal Ram & Anor v State of Madhya Pradesh, involved a wife who committed suicide
within five years of her marriage. She had been living with her parents for approximately two to three
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years. Within a month of returning to her matrimonial home, she committed suicide by jumping into a
well. Harassment by her husband and in-laws has not been proven beyond a reasonable doubt during this
month. The presumption cannot be used against the husband in these circumstances.

Section 114
Court may presume the existence of certain acts. The court may presume the existence of any fact that it
believes is likely to have occurred, taking into account the common course of natural events, human
behaviour, and public and private business in relation to the facts of the particular case. 

Illustrations

Unless he can account for his possession, the Court may presume—

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received
the goods knowing them to be stolen.

(b) That an accomplice is untrustworthy unless he is corroborated in material particulars; and 

(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration.

(d) That a thing or state of things that has been shown to exist within a period shorter than that in which
such things or states of things usually cease to exist is still in existence;

(e) That judicial and official acts have been performed on a regular basis; 

(f) That the usual course of business has been followed in specific cases; and 

(g) That evidence that could be and is not produced would, if produced, be unfavourable to the person
withholding it.

(h) That if a man refuses to answer a question to which he is not compelled by law, the answer, if given,
will be unfavourable to him; 

(i) The obligation is discharged when a document creating an obligation is in the hands of the obligor.

As an example (a), A shopkeeper has a marked rupee in his till soon after it was stolen, and he cannot
account for its possession specifically, but he is constantly receiving rupees in the course of his
business. 

Section 114 Illustration (a) establishes a presumption that a person in possession of stolen goods soon
after the theft is either 1) the thief or (2) has received the goods knowing them to be stolen.

On 28 February 1952, in the case of Sapattar Singh vs State, the court held that no presumption can be
raised where the applicant admitted that the buffalo was recovered from inside the 'gher,' but he claimed
that he had not kept her(buffalo) there, that she(buffalo) might have been tied there by someone, and that
he had no knowledge of it. There is nothing on the record to show that the applicant kept the buffalo
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there, and because the buffalo was recovered from inside the applicant's 'gher,' the courts below have
raised a presumption, under Section 114, illustration (a), Evidence Act, that the applicant was in
possession of the she-buffalo and had received it knowing it was stolen property. Clearly, the courts did
not think the applicant's explanation was adequate.

Section 114A
Presumption as to absence of consent in certain prosecutions for rape. In a rape prosecution under clause
(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of
the Indian Penal Code, (45 of 1860), if sexual intercourse by the accused is proven and the question is
whether it was without the consent of the woman alleged to have been raped and she states in her
evidence before the Court that she did not consent, the Court shall presume that she did not gave her
consent.

Before the presumption in Sec. 114-A can be raised, the following three conditions must be met: 

(a) It must be proven that sexual intercourse occurred. 

(b) The court should consider whether the intercourse occurred with or without the woman's consent. 

(c) In her testimony before the court, the woman must have stated that she did not consent to the
intercourse. 

This presumption would apply not only to rape cases, but also to attempted rape cases, such as when the
victim was undressed and attempts to rape her were made, but could not be carried out due to
intervening circumstances. (In re Fagnu Bhai v. State of Orissa, 1992 Cri. L.J. 1808)

Conclusion
The burden of proof rule states that whoever makes a claim must present evidence or proof. This rule is
subject to the principle that the burden of proof is on the party who either asserts or denies a claim. This
means that whoever brings a case against another must prove the fact he claims in court. In criminal
cases, defendants bear the burden of proof based on the evidence presented before the court, which
establishes that he committed the crime as alleged. An accused can only be presumed guilty based on the
facts proven to the court by the plaintiff in accordance with the Burden of Proof that governs the case.

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References:

Books:

1. The Law of Evidence, by- M. Monir … lexis nexis publication, 12th edition
2. The Law of Evidence, by- M. Monir Volume II … Universal publication

Websites:

1. https://www.legalserviceindia.com/legal/article-7916-the-concept-of-burden-of-proof.html
2. https://burnishedlawjournal.in/wp-content/uploads/2020/12/BURDEN-OF-PROOF-UNDER-
EVIDENCE-LAW-By-Jatin-Bakshi.pdf
3. http://mja.gov.in/Site/Upload/GR/Title%20NO.68(As%20Per%20Workshop%20List%20title
%20no68%20pdf).pdf
4. https://lawtimesjournal.in/burden-of-proof/
5. https://indiankanoon.org/doc/1586025/
6. https://www.indianconstitution.in/2021/07/section-110-indian-evidence-act-1872.html
7. https://www.lawyerservices.in/Chuharmal-SO-Takarmal-Mohnani-Versus-Commissioner-of-
Income-Tax-M-P-Bhopal-1988-05-02
8. https://www.lawnn.com/burden-of-proof/
9. https://indiankanoon.org/doc/139951018/

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