BURDEN OF PROOF

BURDEN OF PROOF

Section 101
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 person.

Illustrations:
 A says B committed a crime and that court must give judgment to B punishing
him. A must prove that B committed the crime.
 A says he is entitled to land B possesses. B denies it.
A must prove existence of facts on which he is entitled to it.
Balakiriya: A rape case -Held, it is for the prosecution to prove the absence of
consent on the part of the woman.

Costa v Gordon: The burden of proof that the woman consented is on the defence.

Erik Batcho: Grave and sudden provocation -Prosecution has to prove under section
103 that accused instituted the provocation.

Section 102
The burden of proof in a suit or proceeding lies on the person who would fail, if no
evidence at all were given on either side.

Illustration:
 A sues B for land which B possesses.
 A says land was left to A by C, B’s father. If no evidence is given by either side, B is
entitled to retain the land. Therefore, burden of proof is on A.
Section 103
The burden of proof as to any 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 the fact
shall lie on a particular person.

Illustration:
 A sues B for theft and wishes the court to believe that B admitted the theft to C.
 A must prove the admission. If B wishes to prove to court that he was elsewhere
at the time, he must prove it.

Section 104
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.

Illustrations:
 A wishes to prove a dying declaration by B. A must prove B’s death.
 A wishes to prove contents of a lost document by secondary evidence. A must
prove document was lost.
Section 105
When a person is accused of any offence, the burden of proving the existence of
circumstances which bring the case within any of
a) the general exceptions of the Penal Code; or
b) any special exception / proviso in any other part of the Penal Code; or
c) in any law defining the offence
is upon him.

Illustration:
 A accused of murder.
 A alleges that due to unsoundness of mind or grave and sudden provocation, he
did not know the nature of the act. The burden of proof is on A.

Daniel v. Lewis
Interpretation section under Motor Traffic Act
Held, in a prosecution for breach of duty imposed by the section, the burden is
on the prosecution to establish that at the area of the intersection, traffic was
not regulated by a police officer or traffic lights or notices.

James Chandrasekara: Burden is on the accused to establish affirmatively the

existence of circumstances rendering the exception applicable.
Section 106
When any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.

Illustration:
A charged for travelling on a railway without a ticket. The burden of proving
that he had a ticket is on him.

Sanitary Inspector, Mirigama v. Thangamani Nadar

Accused charged under Quarantine and Prevention of Diseases Ordinance.
Held, failure to inform disease to proper authorities, being part of essential
elements of liability had to be proved by the prosecution.

Attygalle: Burden of proving that no criminal operation took place passed to

the accused.

Mohamed Auf: A fact can be said to be especially within the knowledge of one
party, only if it is apparent that the same fact is not or is probably not within
the knowledge of the other party.
Section 107
When the question is whether a man is alive or dead, and it is shown that he
was alive within 30 years, the burden of proving that he is dead is on the
person who affirms it.

Section 108
When a person has not been heard of for one year by persons who would
have naturally heard of him had he been alive, the burden of proving that he is
alive is shifted to the person who affirms it.
Conclusion

in essence, the burden of proof is a foundational concept requiring the

party making a claim to provide sufficient evidence to support it. In
legal contexts, it determines who must prove their case, with the
presumption of innocence in criminal law and the preponderance of
evidence in civil cases. Understanding and applying the burden of
proof is essential for fairness and rational discourse across various
domains.
THANK YOU