Q.1 WHAT IS BURDEN OF PROOF?
- The word 'burden of proof' has not been defined in the Evidence Act.
- IN Simple term burden of proof means
- Responsibility to prove the fact in a case
- Or obligation to prove a fact
- Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of "Burden of Proof".
- The expression burden of proof is explained in S.101 of Indian Evidence Act as, "When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".
PRINCIPLES OF BURDEN OF PROOF
The underlining principles of the Burden of Proof are contained in the concept of
A) Onus Probandi
B) Factum Probans
Onus probandi means the burden of proof. Generally, a party who alleges an affirmative position has to prove it.
'Factum probans' is Proving the fact
Thus together how to prove facts and who shall prove and to what extent?
Sections 101, 102 and 103 of the Indian Evidence Act provides the standard laws that govern the Burden of Proof.
Sec-101 read:- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.
(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.
Therefore the burden of lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it.
The general rule that a party who desires to move the court must prove all the facts necessary for that purpose (sec-101 to 105) is subject to two exceptions:-
- He will not be required to prove such facts as are especially within the knowledge of the other party. [sec-106]
- He will not be required to prove so much his obligation in respect of which there is any presumption of law [sec-107 to 113] or some cases of fact [sec-114] on his favour.
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.
(a) A sues B for the 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.
Distinction between the burden of proof and onus of proof?
The burden of proof has two meaning
- Burden of proof to establish a case &
- Burden to adduced evidence
The burden of adducing evidence is also known as onus of proof. These types of burden of proof is always unstable and constantly shifts from one party to another. The burden of proof of second sense has been provided u/s 102.
For example:- In a criminal trial the burden of proof of the accused (that accused committed the offence) is always on the prosecution. This burden of proof is fixed and can not shift. This is what sec-101 says. Once the prosecution established the guilty of the accused, the accused if he wants can bring his case within any of the general exceptions of IPC.
The Supreme Court in the case of Addagada Raghavamma & Anr. v. Addagada Chenchamma & Anr. (1963) held that there is an essential distinction between the burden of proof and onus of proof;
The first one is the burden to prove the main contention of the party requesting the action of the court, while the second one is the burden to produce actual evidence.
The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case.
Section 103 of the Indian Evidence Act 1872 Burden of proof as to particular fact.-
The section reads that 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.
It differs from s. 101. By s.101 the party has to prove the whole of the facts which he alleges to entitle him to judgment when the burden of proof on him.
This section provides for the proof of someone particular fact. If the accused wishes to prove a particular fact, his alibi for instance, he must prove it.
Proof of Alibi.- the burden of proving the plea of alibi is on the accused person. His evidence, in this case, was contradictory and also not supported by any reasoning. The order rejecting the plea of alibi was held to be proper.
Section 104 - Burden of proving the fact to be proved to make evidence admissible
This is a burden of proving a fact that is necessary to be proved to allow any person to establish evidence of any fact and is on the person who intends to establish such an evidence.
- If A desires to prove the declaration of death by B, A must prove that B is dead.
- B intends to prove by secondary evidence, the contents of a lost document.
Section 105 - Burden of proving that case of accused comes within exceptions
Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is interested to take benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws.
The general principles relating to burden of proof are:
- the accused is always presumed to be innocent, and
- it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge
Under section 105 the burden lies on the accused. Once the prosecution has been successful to prove the guilt beyond reasonable doubt that the accused had committed offence. It is immediately shifted to the accused who, if he so desires, may set up a defense of bringing his case within general exceptions of I.P.C. or within special exception or proviso contained in any part of the same code or any other law. Where the accused has led no evidence in defence to support the plea of legal insanity,
- When A who is accused of murder alleges that because of lunacy he was unaware of the nature of the act. The burden of proof rests on A.
- An accused of murder, alleges that because of sudden provocation, he lost self-control, the burden of proof is on A.
The principle underlying Section 106, which is an exception to the general rule governing burden of proof, applies only to such matters of defense which are supposed to be especially within the knowledge of the defendant.
Section 106 is an exception to general principles laid down in Section 101 of the Evidence Act. There is an apparent contradiction between the two sections, because the burden of proof lies on the prosecution under section 101, whereas Section 106 burden lies on the accused or adverse party in criminal cases under exceptional cases regulated by I.P.C. or by any special law. If any person claims contrary under section 106 the burden of proving the fact would be upon him since that is within the special knowledge. It was held that the fact as to who the boy was, was especially within the knowledge of the accused and the burden was on him. If facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt
Section 107 and 108 of the Indian Evidence Act 1872
Sec. 107 reads, 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.
Sec 108 reads, 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 [shifted to] the person who affirms it.
S.107. 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.
S.108. Burden of proving that a person is alive who has not been heard of for seven years.
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.
S.109. Burden of proof as to relationship in the case 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 shown 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, is on the person who affirms it.
S.110.Burden of proof as to ownership
When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner
S.111.Proof of good faith in transactions where one party is in relation of active confidence.
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
S.114A. Presumption as to absence of consent in certain prosecutions for rape.
114A. In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent.
Explanation.- In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code.
Nawab Khan vs. State 1990 cr l j. 1179, it was held by the court the moment the prosecutrix with whom sexual intercourse is committed, disposes before the court that she did not give the consent to sexual intercourse. then the court shall presume that there was no consent. in such a case if the accused claimed that there was consent then he has to prove that the prosecutrix consented to the sexual intercourse.
S.112.Birth during marriage, conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten
S.113.Proof of cession of territory
A notification in the Official Gazette that any portion of British territory has1before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.
S.113A. Presumption as to abatement of suicide by a married women
113A (Amendment 1983).
Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).
S113B.Presumption as to dowry death
When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860
S. 114.Court may presume existence of certain facts
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
What Is the Burden in a Civil Trial and a Criminal Trial?
The burden of proof in a civil case is not the same as the burden of proof in a criminal case. In a criminal case, the prosecutor must prove that the accused is guilty beyond a reasonable doubt. When it comes to a civil case, you must prove your case based on the evidence that you can show the court.
In civil proceedings the party who alleges certain things must prove his case, but proving beyond doubt is not necessary.
In a civil case the plaintiff makes the original allegations in a complaint and bears the initial burden. The defendant then files a responsive pleading denying some or all of the allegations and the burden shift to them to prove their defenses or counterclaim.
In a criminal trial, the burden of proof is always on the prosecution, as the defendant is presumed innocent. If the prosecution fails to prove guilt, the accused does not need to prove anything.
Exceptions: There are a few exceptions when the accused must prove their defense to the charges. These include the defenses of insanity, duress and self-defense.