BURDERN OF PROOF

Adv. Usha Andewar

CHAPTER VII

SECTIONS 104 TO 109

Introduction

The term ‘Burden of Proof’ under the Adhiniyam refers to the responsibility of
substantiating statements with evidence. The legal duty or obligation for the
parties to establish the facts that will help the court rule in their favour, however,
is known as the burden of proof. The Adhiniyam, specifically detailed in Chapter
VII, enshrines this crucial concept.

The burden of proof refers to the responsibility placed on a party to prove the
existence of certain facts or elements essential to their case. In simpler terms, it
is the obligation to provide sufficient evidence to convince the court of the validity
of one’s claim.

The burden of proof encompasses the principles of Onus Probandi and Factum
Probans. Onus Probandi dictates that the party making an affirmative claim
must prove it. This burden rests on the side seeking to support their case with
a specific fact they claim to know. Factum Probans is the actual evidence or
proof presented to substantiate a claim in a legal proceeding.

• Static Nature : The burden of proof remains constant throughout the legal
proceedings and typically falls on the party who asserts the affirmative of
the issue. For instance, in a civil case, the burden usually lies on the
plaintiff, while in a criminal case, it rests on the prosecution.

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• Establishing a Case : It involves proving the entire case to the satisfaction
of the court. This means that the party bearing the burden of proof must
present evidence supporting all the necessary facts and elements required
to establish their claim.

• Embodied in Section 104 : Section 104 of the Adhiniyam explicitly

defines the burden of proof and specifies that whoever desires the court to
give judgment on a legal right or liability dependent on certain facts must
prove those facts.

Broad Classification of Burden of Proof

In Indian law, the fundamental principle is that the burden of proof rests on the
individual making a claim or asserting a fact, unless a legal exception has been
established. This concept of the burden of proof encompasses three distinct
meanings :

1. Persuasive Burden : This refers to the legal and procedural obligation of

demonstrating and substantiating a case. It pertains to the responsibility
placed on a party to establish the elements of their argument within the
framework of the law and pleadings.

2. Evidential Burden : In this context, it involves the duty of presenting

concrete evidence to support specific factual claims. Those making
assertions must produce evidence to substantiate the facts they are
claiming.

3. Admissibility of Evidence : The burden of proof also extends to the

admissibility of evidence in court. It means that the party introducing
evidence must ensure it meets the criteria for admissibility as per legal
standards and rules of evidence.

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Fundamental principles of criminal trial

There are five fundamental principles of criminal trial

(i) The accused is presumed to be innocent till the conclusion of trial;
(ii) The charge against the accused must be established beyond reasonable
shadow of doubt.
(iii) The benefit of reasonable doubt about the guilt will always go in favour of
the accused. The natural corollary is that let 99 guilt go unpunished than
punishing an innocent;
(iv) If two views of one fact are possible, the court will accept the view which
is favourable to the accused; and
(v) “Crime" must be clearly established in a criminal trial.

Burden of Proof in Civil and Criminal Cases

When someone initiates a civil proceeding, it comprises two key elements; the
case’s facts and the legal basis. In such cases, the burden of proof rests with
the plaintiff, the one who files the civil suit.

If the plaintiff fails to present convincing evidence to establish the existence or

truth of the facts, even if the defendant doesn’t offer a defense, the defendant
will prevail. Consequently, defendants often focus on weakening the plaintiff’s
case rather than providing a positive defense.

In criminal proceedings, a fundamental principle is the presumption of innocence

until proven guilty. Consequently, the primary responsibility for proving an
accused person’s guilt rests with the prosecution.

However, if the accused raises a defense or claims an exception, the burden of

proof shifts to them to substantiate their assertion. The prosecution is obligated
to demonstrate the case beyond a reasonable doubt. It places a substantial
burden on them and provides an advantage to the defendant.

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Principles of Burden of Proof.
1. He who pleads must prove.
2. He who fails must prove.
3. He who wishes the court to believe a particular fact must prove.
4. He who wishes to prove the dependent fact must prove the main fact.
5. He who claims exception has to prove.
6. He who has special knowledge of a fact must prove.

Burden of Proof under the Adhininyam

Section 104 – establishes the “burden of proof.” It requires that anyone

asserting a legal right or liability based on specific facts must prove those facts,
thereby assigning the burden of proof to the person making the claim. He who
pleads must prove.

Illustration : – If Ram is of the opinion that Shyam has committed a crime and
that he must be punished for the same, then it is upon him to prove that Shyam
has committed the said crime.

Section 105 – places the burden of proof on the person who would lose in a suit
or proceeding if no evidence were presented on either side. He who fails must
prove.

Illustration : – Sunil has filed a case stating that the land which is in possession
of Anil belongs to him. Here, the burden of proof is on the one who will suffer if
he/she does not prove the fact. Hence, if Sunil does not prove that the land
belongs to him then Anil will continue to have possession of the land and Sunil
will suffer by losing his land.

Section 106 - emphasizes that the burden of proof regarding a specific fact rest
on the person wishing the court to believe in its existence unless otherwise

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specified by law. He who wishes the court to believe a particular fact must
prove.

Illustration : – Chirag says that at the time of his neighbour’s murder, he was
not at home and was at his uncle’s place. In this case, it is upon Chirag to prove
that he was at his uncle’s place.

Alibi taken by the accused to be proved by the accused. It is well-settled that the
accused need not prove his innocence in a criminal trial, but the alibi taken by
the accused must be established by proving the facts constituting the alibi. e.g.
A is accused of committing murder of B in Calcutta on 2.1.2009. A takes the
alibi that he was in Bombay on 2.1.2009. The burden of proof is on A to establish
that he was in Bombay on 2.1.2009.

In Kamini Sahuani Vs. Purna Chandra Sahoo, a married woman who was
maltreated by her in-laws and driven out of her matrimonial home filed a case
for recovering her jewellery and other articles. Her in-laws pleaded that she had
already taken these articles away, the court held that there cannot be any
presumption that she has taken away any of her articles, and the burden of proof
would be upon the in-laws to prove that she has taken away her jewellery and
other articles.

Section 107 – states that the burden of proving any fact necessary to make
other evidence admissible lies on the person wishing to present that evidence.
He who wishes to prove the dependent fact must prove the main fact.

Illustration : – A wishes to prove a dying declaration by B. A must prove B’s

death. This illustration says that the fact necessary to be proved is the dying
declaration of B and the fact necessary to prove the dying declaration is that B
is dead. Mahboob Sab Vs. Union of India, (2011) – In this case, the Railways’
contention was that the person who died by falling from a train was not a

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bonafide passenger being without a ticket, the court said that it was for the
Railways to prove that fact.

Section 108 – places the burden of proving that the accused’s case falls within
exceptions on the accused. It is with a presumption of absence of such
circumstances by the court. He who claims exception has to prove.

Facts to prove the case under the general exceptions of Bharatiya Nyaya Sanhita.
The accused must prove the facts and circumstances for bringing the case
u/s.14 to 33 of Bharatiya Nyaya Sanhita e.g. if the accused takes plea of private
defence or insanity during the commission of crime, the burden of proof lies on
the accused.

Section 109 – places the burden of proving that fact which is especially within
his knowledge. He who has special knowledge of a fact must prove.

It states that when a fact is specifically within the knowledge of a person, that
person is responsible for establishing that fact. The reasoning behind this
Section is that such a person is in a better position to show the reality, especially
when it is within his knowledge, and it is challenging or nearly impossible for the
opposing side to do so.

Illustration : – The accused, a public servant, is prosecuted for cheating read

with Sec.5 (2) of Prevention of Corruption Act. The allegation of the prosecution
is that the accused claimed Travelling Allowance under 2 Tier AC while he
virtually traveled in a government vehicle. The fact that the accused traveled by
train in 2 Tier AC is within the special knowledge of the accused himself, so the
burden of proof lies on the accused to establish that he traveled by 2 Tier AC in
the train.

The body of B was found in the house of A. The onus is upon A to establish that
even if the body of the deceased was recovered from his house, his involvement
in the crime is negligible. The inmates of the house are also required to provide
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an explanation. If the defendant fails to provide a viable explanation and fails to
establish his innocence, this would form a chain of circumstantial evidence
establishing the guilt of the accused.

Ram Gulab Chaudhury Vs. State of Bihar (2001) – In this case, a dead body
was not found but there was a clear evidence by the eyewitness that the victim
was killed by the accused before they took away the body. No explanation was
given by the accused as to the disappearance of the dead body. The court said
that it can convict the accused people by drawing the presumption that the
accused people had a reason to take away the dead body and the reason being
that the death was caused by them.

Landmark Cases on Burden of Proof

In the case of V. Kalyanaswamy Vs. L. Bakthavatsalam, the Supreme Court

clarified that when dealing with a will, the burden to prove its validity and dispel
any suspicions lies with the person presenting the will. However, if the will is
claimed to be a result of coercion, undue influence, or fraud, it is the
responsibility of the party opposing the will to prove these allegations.

In the case of M.S. Reddy Vs. State Inspector of Police, A.C.B., Nellore, it was
established that the initial burden of proof lies with the prosecution. Requiring
the Accused to shoulder this burden is unjust. It is essential for the prosecution
to construct its case using its own evidence. If Accused were allowed to present
their evidence before the prosecution, it could give the prosecution an
opportunity to gain an advantage, potentially using tactics to weaken the case.

In the Savithri Vs. Karthyayani Amma case involving a contested will allegedly
executed under coercion, the court ruled that both sides must prove their
respective claims. This means the party alleging coercion must provide evidence
to support their claim.

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In the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal &
Ors., electronic evidence was introduced as part of the legal proceedings. The
court made a significant determination in this case. Specifically, it ruled that the
party presenting electronic evidence is responsible for establishing its
authenticity and accuracy.

In simpler terms, if you bring electronic evidence into a legal case, you must
prove that it is real and trustworthy. This burden of proof falls on the party that
introduced the electronic document.
Onus of proof

On the other hand, the onus of proof refers to the burden of adducing evidence
or presenting proof of specific facts alleged by a party. Unlike the burden of proof,
which remains constant, the onus of proof can shift during the trial based on
the evidence presented by each party.\

Key Points

• Dynamic Nature : The onus of proof is dynamic (active) and may shift
from one party to another depending on the evidence presented during the
trial. Initially, it lies on the party who would be unsuccessful if no evidence
at all was given on either side.

• Matter of Adducing Evidence : It primarily involves the presentation of

evidence to support specific assertions made by a party. This could include
proving the authenticity of documents, establishing the credibility of
witnesses or demonstrating the occurrence of certain events.

• Embodied in Section 105 : Section 105 of the Adhiniyam addresses the

onus of proof, stating that it lies on the party who would be unsuccessful
if no evidence at all was given on either side initially.

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Differences between burden of proof and onus of proof

Aspect Burden of Proof Onus of Proof

Responsibility to present
Responsibility to prove the
Definition evidence for specific facts or
entire case
claims

Relates to the entirety of the Pertains to specific facts or

Scope
case being presented elements within the case

Initially on the party who would

Lies on the party who must
Allocation be unsuccessful without
prove essential facts
evidence

Remains constant Can shift based on evidence

Constancy
throughout the proceedings presented during the trial

Legal Codified in Section 104 of the Codified in Section 105 of the

Codification Adhiniyam Indian Evidence Act

Landmark cases on between burden of proof and onus of proof

There exists a significant disparity between the concepts of burden of proof and
onus of proof. The burden of proof rests upon an individual tasked with
substantiating a fact, a responsibility that remains fixed and unyielding.

Conversely, the onus of proof is subject to shifting dynamics throughout the

course of evidence evaluation. This notion of shifting onus has been consistently
observed in legal precedents such as Abdulla Mohammed Pagarkar Vs.
State (Union Territory of Goa, Daman and Diu), highlighting the static nature of
burden of proof in contrast to the dynamic nature of onus of proof.
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The term “burden of proof” encompasses two distinct interpretations: firstly, as
a legal and procedural obligation and secondly, as the responsibility of
presenting evidence. Section 104 of the Adhiniyam addresses the former, while
Section 105 deals with the latter. The former remains consistent throughout
legal proceedings, while the latter is subject to alteration based on the evidence
presented. This distinction is underscored in the case of A. Raghavamma Vs. A.
Chenchamma.

In civil cases, the onus rests upon the individual asserting a proposition or fact
that is not inherently evident. This principle was affirmed in the case of State
Bank of India (Successor to the Imperial Bank of India) Vs. Shyama
Devi. Conversely, in criminal cases, the burden of proving all essential elements
to establish the charges against the accused lies squarely with the prosecution
and does not shift. This principle was upheld in the case of State of
Maharashtra Vs. Wasudeo Ramchandra Kaidalwar.

In essence, while the burden of proof remains constant and incumbent upon the
party asserting a legal right, the onus of proof is fluid, subject to change based
on the presentation of evidence and is often contingent upon the context of civil
or criminal litigation.

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