DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
Final Draft

LAW OF EVIDENCE
Concept of Burden of Proof

Submitted To:- Compiled By:-

Mr. Vipull Vinod. Arjun Gupta.

Asstt. Professor (LAW) Roll No. 31

RMLNLU Faculty. 5TH Sem. Sec. A

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 ACKNOWLEDGEMENT

My Evidence Law project and presentation was based on the topic – “Concept of Burden Of
Proof ”.

I would really like to thank Mr. Vipull Vinod (Assisstant Professor Law, RMLNLU) for
giving me such wonderful topic to research on and prepare a research paper. He also
guided me throughout the process of the making of the draft.

I would also like to thank God for giving me strength to complete my final draft. I
would like to thank my mother for encouraging me to work on the topic. Last but not
the least I would like to thank my friends who helped me to find more on the topic
and prepare a research paper of my best efforts.

ARJUN GUPTA

ROLL NO. 31

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 TABLE OF CONTENT
 Introduction 4

1. Section 101 5

 Doctrine of Reverse Burden 5

 Burden of Proof 6

 Criminal Cases 6

 Burden of Proof as to certain Facts 7

 Burden of cases coming within exceptions 7

 Standard of Proof 8

 Burden of proving death of a person 10

 Importance of Burden of Proof 12

 Conclusion 12

 Bibliography 13

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 INTRODUCTION
The burden of proof is a general rule that the party who alleges the affirmative of any proposition
shall prove it. It is also a general rule that the onus probandi lies upon the party who seeks to
support his case by a particular fact of which he is supposed to be cognizant; for example, when
to a plea of infancy, the plaintiff replies a promise after the defendant had attained his age, it is
sufficient for the plaintiff to prove the promise and it lies on the defendant to show that he was
not of age at the time. But where the negative involves a criminal omission by the party, and
consequently where the law; by virtue of the general principle presumes his innocence, the
affirmative of the fact is also presumed. In general, wherever the law presumes the affirmative, it
lies on the party who denies the fact, to prove the negative; as, when the law raises a presumption
as to the continuance of life; the legitimacy of children born in wedlock; or the satisfaction of a
debt. The party on whom the onus probandi lies is entitled to begin, notwithstanding the
technical form of the proceedings.

When two parties are in a discussion and one affirms a claim that the other disputes, the one who
affirms has a burden of proof to justify or substantiate that claim i.e., X is good/true/beautiful,
etc.1 An argument from ignorance occurs when either a proposition is assumed to be true because
it has not yet been proved false or a proposition is assumed to be false because it has not yet been
proved true. This has the effect of shifting the burden of proof to the person criticizing the
proposition. When the burden shifts to the other party then subsequently the other party gets a
chance to prove his statements and arguments as per the case involved.

The burden of persuasion should not be confused with the evidential burden, or burden of
production, or duty of producing (or going forward with) evidence which is an obligation that
may shift between parties over the course of the hearing or trial. The evidential burden is the
burden to adduce sufficient evidence to properly raise an issue at court. The burden of proof is
the basis on which the Indian law of Evidence works.2

1
James Cargile, ‘On the Burden of Proof’ (1997) Cambridge University Press.
2
Barron’s Law Dictionary (2nd ed. 1984)

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Section 101 of Indian Evidence Act defines Burden of Proof as

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.

The word ‘Burden of Proof’ in criminal case is accepted principal of criminal jurisprudence that
the burden of proof is always on the prosecutor. This conclusion is derived from the fundamental
principle that, the accused is presumed to be innocent until proven guilty beyond reasonable
doubt and the accused has a got a right to take benefit of some reasonable doubt.

In Jarnail Singh v State of Punjab3 :

The Supreme Court observed that in criminal case, the burden of proving the guilt of accused
beyond reasonable doubt always rests on the prosecution, and therefore if it fails to adduce the
satisfactory evidence to discharge that burden it cannot fall back upon evidence adduced by the
accused person in support of their defence to rest its case solely thereupon.

Doctrine of Reverse Burden

A reverse onus clause is a provision within a statute that shifts the burden of proof onto the
individual specified to disprove an element of the information. Typically, this provision concerns
a shift in burden onto a defendant in either a criminal offence or tort claim. Since the coming into
force of the Human Rights Act 1998, any reverse onus is open to challenge on the basis of its
incompatibility with Article 6(2) of the European Convention of Human Rights, which
‘Everyone charged with a criminal offence is presumed innocent until proven guilty. Clearly, a
reverse onus will not give rise to a finding of incompatibility, but if it unjustifiably goes against
Article 6(2), the further issue will arise as to whether it should be read down in accordance with s
3 of the 1998 Act in order to impose an evidential and not a legal burden on the accused.4

3
AIR 1996 SC 755
4
: http://www.lawteacher.net/free-law-essays/criminal-law/burden-of-proof-is-self-explanatory.php#ixzz3prc3tBUv

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 Burden and Onus of Proof

Burden of Proof – the burden that arises from the pleadings depend upon the facts asserted or
denied and is determined by the rule of substantive and statutory law or by presumption of law
and fact.

A file a suit against W, widow of B for declaration that he is owner of all the property left by B
being his adopted son: W the widow denies the factum of adoption. In this case A desires to the
get the decision of the court as he is the owner of the property; as he was adopted by B. so he
must prove that he was adopted by B. here the burden of proof lies on A.

Burden of Proof in Criminal Cases

The legal burden of proving any fact in relation to the prosecution case relies upon the
prosecution and remains with the prosecution throughout the trial. Both negative and positive
allegations may be essential to the prosecution; therefore he bears the legal burden of proving
absence of the consent on a charge. Generally, then, the accused bears no legal burden in respect
of the essential ingredients of the offence, whether them being positive or negative, or whether
he denies any or all of them.

If the prosecution evidence as a whole is unreliable and cannot be accepted, as correct for
specific reasons, the silence of the accused can be of no avail to the prosecutor, for such conduct
of silence can never be permitted to become a substitute for the proof of the prosecution. 5 The
accused need not prove his case beyond reasonable doubt. It is enough for him to show,
preponderance of probabilities in his favour.

5
Wingly v State of Madhya Pradesh, AIR 1954 SC 15.

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 Burden of Proof as to certain facts

Section 103 – the burden of proof as to any particular fact lies on the 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 any particular person.

A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must
prove the admission.

U/s 103 the party has to prove all the facts which he alleges to entitle him to a judgment when
the burden of proof is on him. The present section takes into its purview the proof of a single fact
and not all the facts.

Burden of proving the case comes within the exceptions.

Section 105 provides for such cases which come under the exceptions in certain cases –

When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the General Exceptions in the Indian Penal Code, 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.

Illustrations

a. A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the
nature of the act. The burden of proof is on A.
b. A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the
power of self-control. The burden of proof is on A.
c. Section 325 of the Indian Penal Code, provides that whoever, except in the case provided for
by section 335, voluntarily causes grievous hurt, and shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325. The burden of proving
the circumstances bringing the case under section 335 lies on A.

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In Vijayee Singh v State of U.P.6:

It was observed that if the prosecution has discharged his duty to prove the guilt of accused, the
accused may raise the plea either by pleading the same specifically or by relying on probability.
He may adduce evidence in support of his plea directly or may rely on prosecution case himself
or he can indirectly introduce such circumstances by way of cross – examination and also rely on
the probability and other circumstances. Then the original presumption against the accused
regarding the non – existence of circumstances in favour of his plea gets displaced and on
examination of the material fact is a reasonable doubt arises the benefit of it should go to the
accused.

Standard of Proof of the exception pleaded

Burden of proof refers most generally to the obligation of a party to prove its allegations at trial.
In a criminal case the plaintiff sets forth its allegations in a complaint, petition or other pleading.
Each party has the burden of proof of its allegations.

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it
is the duty of the prosecution to prove the prisoner's guilt subject –

1. Statutory Exceptions

Strict adherence to the presumption of innocence can pose difficulties for the prosecution and for
public policy reasons. Therefore, there are numerous statutory exceptions to the Woolmington
principle which shifts the burden of proof on the defendant in certain regulatory offences and for
the protection of public interest.7

6
AIR 1990 SC 1459.
7
‘Fallacy: Burden of Proof’ The Nizkor Project.

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2. Presumption of innocence

The presumption of innocence is fundamental to a fair trial. This is a principle of the common
law and is stated in the Article 6(2) of the European Convention on Human Rights.

Presumptions are basically a method of distributing the burden of proof on a particular issue,
which could lead to the requirement of less evidence than would otherwise be necessary, or no
evidence at all. Some presumptions are irrefutable in that the Court is bound to draw a certain
conclusion, whether or not there is evidence to the contrary, and in such circumstances, evidence
in rebuttal will be inadmissible.

3. Defence of Insanity

Where the defendant pleads insanity, he bears the persuasive burden which is discharged on a
balance of probability. However, if the prosecution raises the defence, they must prove it beyond
reasonable doubt. If, however, the defendant’s defence involves the pleading of issues such as
non-insane automatism, provocation, self-defence, duress, and belief in lawful authority and
mechanical defect, he bears the evidential burden and the onus of disproving those rests on the
prosecution.8 In order to be successful in criminal proceedings, the prosecution must prove by
evidence (the evidential burden) the facts to the legal burden of proof, which is ‘beyond a
reasonable doubt’.

4. Reasonable Doubt – what is?

Regarding the reasonable doubt the Supreme Court in the case of Chhotanney v State of
U.P.9 said:
Doubts would be called reasonable if they are free from the zest of abstract speculation. To
constitute reasonable doubt, it must free from an over – emotional response. Doubts must be
actual and substantial doubts as to the guilt of the accused person arising from the evidence,
or from the lack of it, as opposed to mere apprehensions.

8
Keith Hac, ‘Burden of Proof’ (2013) drukker Solicitors.
9
AIR 2009 SC 2013

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 Burden of Proving the death of a person

Section 107 provides for 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.

Section 108 provides for burden of proving that person is alive who has not been heard of
for seven years – 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 the person who affirms it; 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
the person who affirms it.

Principle in Section 107 and Section 108 –

It has been laid down in section 107 that if the person has been known to be alive within the last
30 years on which the question arises; then it would be presumed that the person is alive and
continues to so live. Here, the burden will come upon the person to prove the death of the person
who affirms the person to be dead. Whereas, in section 108; it has been laid that when it is
proved that a person a person has not been heard for a period of 7 years by those people (close
relatives and friends) in the natural circumstances would have heard of him then he will come
upon the person to prove that the person is alive who affirms the same fact.

Illustration

Suppose the question of A, being alive arises. In the year 1950, the court seeks to find out
whether A is alive or not. One of the parties filed a mortgage deed executed by A in the year
1922. It is presumed that in the year 1922, A was alive as the deed was executed in his name.
Then according to section 107 it will come on the adverse party to prove that A is dead. Now if
the adverse party proves that the relatives and close friends (people whose who have heard of

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him in the natural course of events) did not hear of A being alive for the last 7 years; then the
court according to section 108 will presume A’s death and then the burden will subsequently
shift upon the other party to prove that A is alive and the party has to prove that is alive only by
direct evidence.

In the case of Mohammad Sharif v Bande Ali10

One Madad Ali mortgaged certain property to the father of the defendant respondents on two
occasions, first in 1887, and the other in 1890. Madad Ali disappeared after some time and
nothing was heard of him again. His brother, Dildar Ali, died five to seven years prior to the date
when the suit was filed. On his death, the plaintiff’s appellants who were heirs of Dildar Singh,
sought to redeem the mortgage made by Madad Ali. They alleged that, as Madad Ali disappeared
some 18 years ago, he must be presumed to have been dead, for the last 11 years and Dildar Ali,
who was alive till a later date must be deemed to have succeeded him as the heir. The defendants
took the plea that Dildar died first so he did not inherit him. The first court and the lower
appellant court gave a finding that Dildar Ali died 7 years prior to the date of the suit, but there
was no evidence as to when Madad Ali died.

The plaintiffs who were heirs of Dildar Ali contended that Madad Ali disappeared in 1890 ad
was not heard of since then and so according to the principle laid down in section 108 he will be
presumed to be dead in 1897. And as Dildar Ali died somewhere in 1904 he must be supposed to
be dead after Madad Ali.

The court observed:

The fact that the person was not heard of for last 7 years is sufficient and it should not be stressed
too much that the person died 18 years ago. It does not make a difference; the fact that only
matters is that the person is dead at the time the question had arisen. And the important part is to
show that the person is dead and then consequently shift the burden of proof to the adverse party
regarding the proving of any fact.

10
ILR 34 Alld. 36.

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Importance of Burden of Proof –

The question of onus or burden of proof at the end of the case, when both the parties have
adduced their evidence is not of very great importance and the court has to come to a decision on
a consideration of all materials. Burden of Proof as determining factor of the whole case only
arise if the tribunal finds the evidence pro and cons so evenly balanced that they cannot come to
a conclusion. Then the onus will determine the matter and the person on whom the burden of
proof lies will lose. But if the tribunal, after hearing and weighing the evidence, comes to a
determinate conclusion the onus has nothing to do with it, and need not be further considered.
The case is to be decided on merits without taking into consideration as to on which of the party
the burden of proof laid.11

Conclusion

Understanding clearly on whom the burden of proof lays is a fundamental requirement for any
litigator. This entails understanding the trial process, the mechanics of evidence adduction, the
factors at play when presumptions are applicable and the basics of the burden on a party. This is
an attempt to relate matters of practice with matters of procedure and law to give the reader a
fuller understanding of the tools available to better prepare his case. Matters of practical pleading
are interwoven with issues of burden of proof.

There are certain standards of proof given in the law which shall be adhered to while deciding
the burden to be upon whom and also decides the mechanism by which the burden of proof shifts
upon the adverse party. The burden of proof lies basically upon the party who affirms to any
particular statement and tries to convince the court in the same way.

11
Harish Chandra v Rex, 1950 ALJ 220.

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 BIBLIOGRAPHY

For the compilation of the project certain sources were referred to –

BOOKS –

 Lal, Batuk “The Law of Evidence”. Allahabad: Central Law Agency, EDN.21, 2015.
 Singh, Avtar “Principles of the Law of Evidence”. Allahabad: Central Law Publications,
EDN.21, 2015.

ARTICLES –

 Keith Hac, ‘Burden of Proof’ (2013) drukker Solicitors.

WEB SOURCES –

 http://www.lawteacher.net/free-law-essays/criminal-law/legal-burden-of-proof.php
 https://kislayverma.wordpress.com/2007/08/04/section-108-of-indian-evidence-act-1872-
what-the-courts-said/
 http://2012books.lardbucket.org/books/introduction-to-criminal-law/s06-04-the-burden-of-
proof.html
 http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1231&context=facpub
Last accessed on 27th October 2015

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