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Key takeaways

  • A bench of the Tripura High Court recently explained the key differences between ‘burden of proof’ and ‘onus of proof’.
  • Provisions regarding ‘burden of proof’ and ‘onus of proof’ come under Section 101 to section 114 in chapter VII of the Indian Evidence Act, 1872.
  • The burden of proof is the responsibility held by one to prove their facts.
  • The onus of proof is a continuous process in the evolution of evidence regarding the responsibility for providing concrete evidence, which can be transferred from one party to another.


The burden of proving a fact normally rests with the party that produced the evidence, as the courts require it to provide a decision based on those facts.It is one of the basic facts of criminal jurisprudence that "the offence committed by an accused is to be proved by the prosecution".  According to criminal law, it is the responsibility of the prosecution to prove the facts, except when the accused is called upon to do so. These are the concepts of burden of proof and onus of proof, respectively.

Recently a bench of the Tripura High Court has observed the lines that separate these concepts. It was made while hearing a second appeal that was filed in connection with a property dispute. This article tries to look into these concepts in light of this recent observation.

About the case

The case under observation [Md. Akbor Ullah v. Md. Rahamat Ullah and Ors.] was a property dispute between Karibun Nessa (wife of Rahamat Ullah) who was the original plaintiff, but had passed away, leaving her husband and children sole heirs to the property in question. Her claim towards the declaration of her right, title, and interest over the suit land and possession of the same was granted by the trial court. The land which was previously government khas land had been allotted to the original plaintiff in 1983. The appellant-defendant who was the brother of the original plaintiff approached her for permission for construction on the same land for a temporary period, which was granted on the condition that it will be vacated as and when required. However, on 06.01.2015 when the same was demanded, the appellant- defendant continued occupying the land, refused to be evicted, and raised a latrine there. The Trial court had ordered in favour of the plaintiff and ordered the defendant to remove all obstruction from the said land within 30 days. An appeal was also submitted to the Appellate Court, which was dismissed on grounds that there was no merit in it. 

Therefore the second appeal was submitted to the High Court by the defendant, preferred against the concurrent findings of the two Courts below. The arguments raised were that the lower courts had not properly considered the facts and issues while deciding on the judgement and decree both in the suit and first appeal. However, the Court held that the plaintiff- respondents were in legitimate possession of the suit land. The land being government allotted land, it cannot be possessed by third parties, in this case, the defendants. 

What is burden of proof and onus of proof

According to Section 101 of the Indian Evidence Act, the term “burden of proof” has been defined as follows; “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.”

This states that the burden of evidence is with the party proving the case, who must establish the key facts to the case to the appropriate degree of confidence.

The "Onus of Proof" refers to the obligation to present concrete evidence, which may be transferred from one side to another as the evidence evolves. Though this has not been defined clearly in the Act, several judgements serve as a basis to this concept. In the case of Jarnail Sen v. State of Punjab[AIR 1996 SC 755], it was held that if the prosecution fails to provide with satisfactory evidence to discharge the burden, they cannot expect the evidence put forth by the accused to be in support of their defense.

In the current case, the Court held the following, citing from A. Raghavamma and another v. Chencharamma and another [AIR 1964 SC 136].

“There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon a persons who has to prove the fact and which never shifts.

Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”

Thus the Court was convinced that the plaintiff has discharged her burden of proving her title and previous possession over the suit land while the appellant-defendant failed to rebut the proof of title and previous possession of the plaintiff over the suit land.

The Court also had to decide whether Section 188 of the 1960 Tripura Land Revenue and Land Reforms Act applied to the case. The clause forbids civil courts from having jurisdiction over any action resulting from this Act. The plaintiff sought a declaration of her title and the restoration of custody of the suit land in the current case, the court said. It was held that the reliefs requested had nothing to do with the settlement of land revenue or the creation of records of rights or any entry therein, and they did not relate to changing any entry in the record of rights that was eventually published under the TLR & LR Act.


The term "burden of proof" does have two implications: the first is "burden to establish a case," and the other is "burden to adduce evidence," which is also known as the "onus of proof." Therefore, we can say that the "onus" is nothing more than a portion of the "burden of proof" that is unstable and has a tendency to shift. The recent observation made on the same by the Tripura High Court is a reference that would lead to fair and just judgemens in several such cases to come. 

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