GCT- 1 ASSIGNMENT

NAME – Mohd Affan

ROLL NO - 17BALLB74

CLASS - BALLB 6th Semester

ENROLLMENT NO - GI7479

SUBJECT – law of evidence-2

TOPIC – Burden of proof(General rules)

CONTACT NO. -8630051338

GROUP- 3

SUBMITTED TO- Prof. Javaid Talib SIR

TOPIC : Burden of Proof (General Rules)

1. Introduction
2. Meaning of 'Burden of Proof':
3. Why we need Burden of Proof ?
4. Section 101. Burden of proof
5. Initial Burden of Proof
6. Difference between burden of proof and onus of proof
7. Section 102. On whom burden of proof lies.
8. Burden of proving reasonableness of restrictions on fundamental
rights

9. Difficulty of proof no excuse

10. S.103.Burden of proof as to particular fact:

Introduction

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act,
states that when a person is bound to prove the existence of any fact, the burden to provide
evidence for the same lies upon him. Chapter VII of the Act deals with provisions under
burden of proof. The term “burden of proof” isn’t defined in the Act, however it is the
rudimentary principle of criminal that, that the presumption of innocence lies with the
accused unless proven otherwise.

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.

Why we need Burden of Proof ?

Normally Burden of Proof lies on the affected party3 i.e Appellant because evidence given by
affected party is one will be most of the time are true which are believed by the court too.
When accuse is asked to prove he will easily escape by making a fake evidence. So we need
Burden of Proof to prove the person has done guilty1

Section 101. Burden of proof

101. Burden of proof.—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.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B
has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of
B, by reason of facts which he asserts, and which B denies, to be true. A must prove the
existence of those facts.

1
1R.Srimukundan, 2K.Roja, International Journal of Pure and Applied Mathematics, Volume 120 No. 5 2018,
1083-1095
Initial Burden of Proof:

The facts which have to be proved in a case can from the point of view of burden proof, be
put in two categories namely which positively affirm fact and those which deny it. The first
general principal is that a party who asserts the affirmative of an issue, the burden of proof
lies on him to prove that facts. 2

In criminal cases, the principle remains constant that the initial burden is on the prosecution
to establish that the accused has committed a crime. If the prosecution fails to establish
beyond reasonable doubt that the accused is guilty, the accused is entitled to an acquittal. If
burden of proof is put on the shoulders of the wrong party, the Supreme Court states that this
would vitiate the entire judicial system. Wherein, a landlord seeks eviction of the tenants on
the grounds of bona fide personal need, the onus to establish the same is on him. In the case
of Banwari Lal v. Road transport,3 where good were lost by the carrier, the burden lies
upon him to establish that there was no negligence on his part. The defence version may even
be false; nevertheless, the prosecution cannot derive any advantage from the falsity or other
infirmities of the defence version, so long as it does not discharge its initial burden of proving
the case beyond ail reasonable doubt.

In the case of Triro v. Dev Raj4, when there was a delay in filing the suit, the defendant had
taken a plea of limitation period. the plaintiff was in position to know the cause of delay the
burden of proving that the case was within prescribed limit was on the plaintiff.

Supreme Court in Jarnail Sen v. State of Punjab5 A I R 1996 SC 755 held that in Criminal
Case, the burden of proving of the guilt of the accused beyond all reasonable doubt always
lies upon prosecution, and therefore if it is fails to adduce the satisfactory evidence to
discharge the burden, it cannot fall back upon evidence adduced by the accused person in
support of their defence to rest its solely thereupon.

In matrimonial cases, the principle of burden of proof relating to civil cases is applicable. A
party seeking divorce will have to prove the grounds for divorce such as desertion, cruelty or
infidelity.6

2
DR AVTAR SINGH , Principles of the law of evidence, 14th edition, p352 , central law publication
3
A.I.R 1989 Pat. 303.
4
A.I.R 1993 J&K 14
5
A I R 1996 SC 755
6
www.lawtimesjournal.in last visit on 30th April 2020
Burden of proof Onus of proof

A Person who raises allegations have burden to Proving evidence may vary to either side of
prove. the parties.

If the person not produces proper evidence then If the person not produces proper evidence
there are chances of dismissal or victory goes to then the chance will go to opposite party to prove.
defendant.
Chance given to either party what court feels.
Chance given mostly to the person who had raised
allegations. For Example
A say he heard gunshot yesterday near
For Example Garden. C says he did not hear gunshot. As
A says B has committed crime yesterday. court has not satisfied it asks them to
Here A must prove that B has committed crime 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.

Section 102. On whom burden of proof lies.

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

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by
the will of C, B's father. If no evidence were given on either side, B would be entitled to
retain his possession. Therefore the burden of proof is on A.

(b) 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 would
succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of
proof is on B
On whom burden of proof lies.

This section attempts to locate the party, upon whom the burden of proof lays, the burden of
proof lies upon the party whose stance will fail if no evidence is produced by either of the
parties. The burden of proof lies on the party who affirms a fact rather than the party who
denies it. If A sues B to recover damages for breach of contract and if neither party gives
evidence A would lose his case.

In case of insanity and unsoundness of mind, burden of proving that fact lies on the person
who wants to rely on it. The law presumed sanity. In some cases however this burden may
impose upon the person who has to be beneficiary under the transaction. 7In the case of Ram
Raja Ram v. Dhruba Charan Jena8, the orissa high court the party claiming no
consideration under Section 118 of Negotiable Instruments Act must provide proof for the
same.

Burden of proving reasonableness of restrictions on fundamental rights

Where the government totally prohibits certain kinds of trade, it would be for the government
or the authority concerned to show that the prohibition is in the nature of restriction on trade
liberty.

Difficulty of proof no excuse

Where the signature of a person on document has been proved and he says that he signed
under mistaken notion of the document, burden lies on him to prove this fact. A person can
not be relieved of burden of proving a fact even if the fact is such that it is such that it very
difficult or rather impossible to prove 9

S.103.Burden of proof as to particular fact:

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 that fact shall lie on
any particular person.

Illustration

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A
must prove the admission. B wishes the Court to believe that, at the time in question, he was
elsewhere. He must prove it.

7
DR AVTAR SINGH , Principles of the law of evidence, 14th edition, p360, central law publication

8
A.I.R 1982 Orissa 264.
9
DR AVTAR SINGH , Principles of the law of evidence, 14th edition, p361, central law publication
Burden of proving a particular fact

The principle of the section is that whenever a party wishes the court to believe and to act
upon the existence of a fact, burden upon him to prove that fact. If a party wishes the court to
believe that his opponent has admitted a fact burden lies upon to prove the fact of admission.
In an action for damages for wrongful dismissal, the plaintiff has to prove that the dismissal
was wrongful and to what damages he is entitled. The principle will not be effected by the
fact whether the particular fact in question is negative or affirmative. 10 Abrath v. north
eastern railway for damages for malicious prosecution, the plaintiff wants the court to
believe upon the fact that he was prosecuted without reasonable and probable cause and
although this is negative of the issue the plaintiff has to prove it.

Philip vs Hindu Matha Dharma Paripalana11 in this case an action for damages for
malicious prosecution, the plaintiff failed to prove that the complaint was without reasonable
and probable cause. His case failed

For example: A and B are two parties are appellant and respondent. A says 3 days before B
had killed C near Public Garden at night. But B says that he was not there at particular
incident and he was in Kanniyakumari not in Chennai. Here A must prove C was killed by B
and B must prove that he was in Kanniyakumari not in chennai at that time of this incident.

In case of will the initial burden is on the person who relies on it and this burden become
heavier when there are suspicious circumstances. Probodh Kumar Das vs Prafulla Kumar
Das And Ors. The Calcutta high court felt that its conscience was satisfied about genuiness
of the will when it was shown when it was shown that the childless executants of the will was
living with her brother’s son during her last days whom she had favoured.

10
DR AVTAR SINGH , Principles of the law of evidence, 14th edition, p361, central law publication

11
AIR 2003 Ker 205, 2003 (1) KLT 829