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Key Takeaways

  • The need to prove a fact is known as the burden of proof. Every party must establish facts that are favourable to them or adverse to their opponents.
  • The prosecution bears the duty of demonstrating everything necessary to prove the charge against the accused and this burden is never shifted unless particular offences are included.
  • The presumption of innocence is ingrained in the Indian criminal law and it should not be tampered with in minor matters.
  • In civil cases, the burden of proof in the sense of establishing a case is discharged by a greater majority of evidence.
  • This article elaborately discusses the Indian provision for burden of proof and the principles of onus of proof and reverse onus.


The burden of proof is a crucial factor in determining whether or not a lawsuit will be successful. It's a legal need to figure out who's in charge of presenting evidence that supports or refutes a claim. The burden of proof is intended to guarantee that legal decisions are decided on the basis of facts rather than speculation. If your side bears the burden of proof, the law compels you to present sufficient evidence to back up your statements.

The Latin proverb "semper necessitas probandi incumbitei qui agit" is often used to describe the burden of proof. This is a specific variant of the presumption of innocence that supports evidence evaluation in particular legal systems, not a generic statement about when the burden of proof is assumed.

During a trial, the judge assigns to different sides the burden of proof. The Court and jury will assess whether or not the party was able to meet this burden, as well as the implications of success or failure. The amount to which parties must persuade the judge and jury, as well as the type of evidence that must be provided, is determined by the facts of the case.

Burden Of Proof

According to Order XVII Rule 1 CPC, the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that the plaintiff is not entitled to any part of the relief sought, either on the basis of law or on the basis of additional facts alleged by the defendant, in which case the defendant has the right to begin.

Every document accepted in evidence in the suit must be endorsed by or on behalf of the Court, with the endorsement signed or initialled by the judge constituting admission of the document in evidence. Before such endorsement, an objection to the document's admissibility should be raised and the Court is required to form and express an opinion on the matter of admissibility, on whose opinion the document will be endorsed as admitted or not admitted in evidence.

Objections to the admissibility of documents in evidence can be divided into two categories:

i. Objections that the document sought to be proved is inadmissible in evidence;

ii. Objections that do not dispute the document's admissibility in evidence but are directed at the mode of proof, alleging it to be irregular or insufficient.

In the first situation, simply because a document is identified as "evidence," an objection to its inclusion is not barred and can be raised at any time, including during an appeal or revision. In the latter case, the objection should be raised when the evidence is presented, and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the method used to prove the document is improper cannot be raised at any point after the document has been marked as an exhibit. The latter proposition is a fair-play rule. The key question is whether an objection, if raised at the appropriate moment, would have allowed the party presenting the evidence to correct the flaw and use a more regular style of proof.

The standard for testing "proven," "disproved," and "not proved," as specified in Section 3 of the Indian Evidence Act, 1872, is the same whether the case is civil or criminal. What makes the difference is how the result is evaluated based on the rule's application.

The Hon'ble Supreme Court, in the case of V. Kalyanaswamy v. L. Bakthavatsalam, held that while the burden of proving the will and satisfying the court's conscience that there are no suspicious circumstances or, if there are, to explain them, is on the propounder of the will, the burden of proving that the will was procured by coercion, undue influence, or fraud is on the testator of the will.

In Ultratech Cement Ltd. v. State of Rajasthan, the Supreme Court held that the burden of proving applicability would be on the assessee to show that his case falls within the parameters of the exemption clause or exemption notification and that the burden of proving applicability would be on the assessee to show that his case falls within the parameters of the exemption clause or exemption notification. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors., the Supreme Court declared that anyone seeking to enter an electronic document as evidence must prove its authenticity with evidence that can support a determination that the electronic document is what it claims to be.


When a person is accused of committing a crime, he bears the burden of proving that the case falls under any of the General Exceptions enshrined in the Indian Penal Code, or under any specific exception or proviso incorporated in any other part of the same Code, or in any statute describing the crime, and the Court assumes the absence of such circumstances.

The advantage of "the general exceptions of the Indian Penal Code or of any of the special provisions" is offered to the accused under Section 105. The specific rule has no bearing on the indisputable norm of burden of proof, which requires the prosecution to prove that the accused committed the crime alleged against him. If an accused seeks the benefits of exceptions under Section 105, he bears the burden of establishing that the situation falls under the exception. However, the accused bears a different burden of proof than the prosecution. To prove his case beyond a reasonable doubt, an accused does not need to cite principle evidence.

Presumption of Innocence

In a criminal trial, it is a general rule that a person accused of an offence is presumed innocent and the prosecution bears the burden of proving the accused's guilt beyond a reasonable doubt. In a criminal trial, the chances of being found guilty are substantially higher. There is no absolute benchmark, even though this is a higher benchmark.

No one may be found guilty of a crime if the probability of his guilt is equal to the probability of his innocence. If an accused person has even the remotest chance of being innocent, he must be given the benefit of the doubt.When a law provision alters the presumption of innocent, the onus is on the accused. When an assault rifle is discovered in the possession of an innocent individual, the Apex Court stated that the onus should not be as high as the prosecution's, but there should still be a reasonable chance. Because a person might be accused of a crime without actually committing one, a basic tenet of justice requires that plaintiffs prove their claims and that the accused be treated as innocent throughout the period between accusation and verdict.

Beyond Reasonable Doubt

In criminal trials, the burden of proof is beyond a reasonable doubt. A judge or jury cannot convict you if there is a reasonable doubt that you are guilty of the offence. There is no clear definition or guidance for what it means to be guilty "beyond a reasonable doubt."

The existence of reasonable doubt is ultimately determined by how a judge or jury evaluates a case. After careful and unbiased review of all facts in a case, the conclusion should be based on reason and common sense. According to some Courts, "beyond a reasonable doubt" means "evidence of such a convincing character that a reasonable person would not hesitate to rely on and act on it." This is a ridiculously high standard of proof. As a result, asserting a solid defence when accused of a crime is the best method to defend yourself. Any valid doubt can prohibit the government from proving its case.

Preponderance of Probability

In civil lawsuits, the burden of proof is by a preponderance of the evidence. A preponderance of the evidence indicates that something is more likely to be true than false. In a personal injury lawsuit, a victim just needs to persuade a judge or jury that their claim has a larger than 50% likelihood of being true.When deciding whether there is a preponderance of the evidence, the quality of the evidence will be more relevant than the quantity.

Indian Evidence Act

According to Section 101, when a person asks any Court to deliver judgement as to any legal right or responsibility depending on the existence of facts which he asserts, he is required to establish the existence of those facts.The prosecution has the initial burden of proof as held in the case of M.S. Reddy v. State Inspector of Police, A.C.B., Nellore. It can't take advantage of the defence's flaws and inconsistencies. It must rely on the evidence it has gathered for its proof. There were dubious circumstances surrounding the execution of a will in the case of Savithri v. KarthyayaniAmma, as well as an allegation of coercion. The court ruled that the party alleging coercion bears the burden of proof.

According to Section 102 of the Act, the burden of proof in a suit or procedure is on the party who would lose if no evidence was presented on either side. There was an allegation that the accused was undertaking unauthorised construction in the case of Special Development Area v. Pooran Lal. The Court ruled that the onus is on the complaining authority to prove that the land is theirs and that the accused was constructing illegally on it.

The burden of proof as to a specific fact is discussed in Section 103 of the Act. Unless a statute specifies that the burden of proof for a certain fact falls on a specific person, the person who asks the court to believe in its existence bears the burden of proof. A man was protesting against the nationalisation of roads in the case of Prakash Chandra v. Managing Director, ORTCO. The Court stated that he must demonstrate that it will not serve the national interest.

According to Section 104 of the Act the burden of proof for every fact necessary to enable any person to give testimony of any other fact is on the person who seeks to give such evidence. A person died after falling from a moving train in the case of Mahboob Sab v. Union of India. Because he didn't have a ticket, the railways said he wasn't a genuine passenger. The Court ruled that the railways bear the burden of proof in this case.

Onus of Proof

The onus of proof is not stated anywhere in the Evidence Act, although provisions relevant to it are included in the Act and various judgements of the courts. Furthermore, there is a general rule in criminal law that it is the prosecution's responsibility to prove the burden of proof in the case; however, when the accused is called upon to prove the burden, this is referred to as the onus of proof falling on the accused to prove his case under an exception. The term "Onus of Proof" refers to the responsibility to provide actual evidence that can be shifted from one party to another at any time during the evolution of evidence. In the case of Jarnail Sen v. State of Punjab, the prosecution could not rely on the evidence presented by the accused in support of their defence if they failed to produce sufficient evidence to meet their burden.

The individual who needs to show a truth bears the burden of proof, which is constant and never shifts, whereas onus shifts from one person to another.It was noted in the case of Anil Rishi v. Gurbaksh Singh that there is a difference between a burden of proof and an onus of proof. Onus probandi grants the right to begin. It is crucial in the early stages of a lawsuit. The question of who bears the burden of proof has more weight when the question is who should go first.

Reverse Onus

The burden of proof is shifted to the accused who must provide evidence to prove his innocence or establish reasonable suspicion of his guilt. The presumption of innocence is rebutted in our society in two ways: first, when there is an express statutory provision reversing the burden of proof, and second, when the accused appeals against a lower court verdict in which his assumption is guilt rather than innocent. In dowry death cases, culpable mental state of the accused is presumed, resulting in a presumption of guilt rather than the customary presumption of innocence. This response to the assumption in criminal law frequently leads to legal issues and disagreements.

In its 47th report, India's Law Commission recommended that there are certain offences that have a significant impact on and cause harm to society, and that it is necessary to remove the prosecution's burden of proof for such offences. In order to avoid crimes that the Indian judiciary has identified as public welfare offences, reversal onus clauses have been declared necessary.Such explicit legislation clauses are frequently drafted to address significant socioeconomic offences that directly or indirectly jeopardise public welfare. In crimes where deterrence is more important, the onus of proof is usually transferred to secure a guilty sentence. In this light, dowry death is an example.

In the case of KM Nanavati, the court maintained the accused's basic human right to be considered innocent during the trial. This sparked a national debate over the efficacy of reverse onus clauses in Indian law. The case of P. N. Krishnalal v. Government of Kerala was finally decided with the court ruling that the presumption of innocence is not a constitutional guarantee and that it can be overridden by legislative imperatives and action. Reverse onus clauses have been deemed constitutionally sound by Indian courts; therefore lawmakers aren't hesitating to include them.

Burden of Proof in Arbitration

The burden of proof is not particularly addressed under the Arbitration and Conciliation Act, 1996 (Arbitration Act) when it comes to arbitration. Section 34 of the Arbitration Act, which allows an arbitral award to be challenged in court, demonstrates that the rules that apply in civil cases, namely that the person making a claim must prove it,are widely followed. If the party bringing the application provides sufficient proof, the court may set aside the award. Section 34(2)(a) of the Arbitration Act lays out the first five reasons. A party must argue and show the presence of one or more of these reasons in order to effectively invoke any of them.That is, the party contesting the award must meet its burden of proof by presenting sufficient credible evidence to establish the existence of any of the reasons. The Arbitration Act, Section 48, establishes conditions for the execution of international awards. At the request of the party against whom the foreign award is sought, the court may refuse to enforce it unless that party provides the court with specified documents.

Burden of Proof in Insurance

It is used in courts to establish whether a loss is covered by an insurance policy in the insurance industry. In majority of the cases, the insured has the burden of proof to show that a loss is covered by the policy, while the insurer has to show that a loss was excluded by the terms of the policy.

The insurers must either show that the loss was caused by an occurrence that was not covered by the policy or that the coverage is provided by another insurance provider. The courts may rule that a specific policy is responsible for providing coverage, but they may also rule that multiple insurers are accountable for different portions of the loss. Negligence is alleged in a large majority of insurance cases that make it to court. Failure to use reasonable care has been defined as this. Insurers will try to show that the insured did something that a reasonable person would not do, or that the insured did something that a reasonable person would not do.

Burden of Proof in Intellectual Property Law

The rules governing opposition under the Trademarks Rules, 2002 give both the opponent and the applicant an equal opportunity to prove their case, but the burden of proof ultimately falls on the opponent to show that the applicant's trademark registration will cause market confusion and deception, as well as irreparable harm to his business's reputation.

It was established in Metropolitan Trading Company v. Shri Mohanlal Agarwal that once the opponents have proven that they are prior users of the mark in question, the burden shifts to the applicant to prove that use of the mark by them would not cause any confusion or deceit.The Delhi High Court held in Gupta Enterprises v. M/s Gupta Enterprises and Anr., that it is a well-established principle of law that in an opposition procedure, the applicant has the burden of proving that he is entitled to the registration of the trademark asked for. Where the opposition is based on the opponent's alleged registration of the trade mark, usage and repute of the opponent's trade mark, or any other fact, the opponent bears the burden of proving such facts. The onus transfers on the applicant only when the opponent has first discharged his burden.

When the plaintiff seeks a non-infringement decree, the issue of burden of proof arises. In such a circumstance, the moot question is who would lose if no evidence is allowed in. The plaintiff has taken on the burden of demonstrating that their TVS 125 CC Flame does not infringe on the defendant's patent. In the case of Bajaj Auto Ltd. and State of Maharashtra v. TVS Motors Company Ltd., the plaintiff had no evidence that the defendant infringed on their patent. The right to commence, as defined by Order 18 Rule 1 CPC, must be weighed against Sections 101 and 103 of the Patent Act. The defendant filed a counterclaim in the form of a lawsuit.


The burden of proof is governed by the concept that whoever makes a claim must provide evidence or proof. This rule is subject to the principles of burden of proof, which provide that the party who asserts or denies a claim bears the burden of proof. This means that whosoever takes a case to Court against someone else must be able to establish the fact he claims. The burden of proof on defendants in criminal cases is based on the evidence presented to the court, which establishes that he committed the offence as alleged. An accused can only be assumed guilty based on the facts presented to the court by the plaintiff in accordance with the case's burden of proof.

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