Burden of Proof

NAME – TIYAS RAHA
ROLL – 08, BBA LL.B (H)

SEMESTER – 5TH
SUBJECT – BURDEN OF PROOF (INDIAN EVIDENCE ACT)
TEACHER – JYOITI
INTRODUCTION
The laws relating to the Burden of Proof and its related rules are as provided in the INDIAN
EVIDENCE ACT OF 1872. This laws clearly states that until and unless an exception is
established by law, the burden of proof will rest on the person who has asserted a fact or is
making any claim. When a person has proven the existence of a fact then the burden of
proof belongs to such a fellow.
In the Criminal case, there are always two burdens. The first burden is on the prosecution to
prove at all cost against the defendant while the second burden lies with the defendant to
bring about a convincing doubts surrounding the case of the prosecution.
This article will elucidate on the aspects of BURDEN of PROOF as contained in section 101 of
the Indian Evidence Act.
WHAT IS THE BURDEN OF PROOF

In simple terms, Burden of Proof is the responsibility to prove the fact in a case.
The term Burden of Proof is used to explain two major facts or burdens. The first is the
burden of production of the burden of “going forward with the evidence” and the burden of
plea or persuasion.
The burden of plea or persuasion is the responsibility that rests on the single party through
the period of the court sitting. The party carrying the burden can only succeed in its claims
once it has absolutely satisfied the “tier of fact”.
For one to be presumed innocent in the court of law over a criminal case, the prosecution is
faced with the burden to prove elements of the offense and disprove all defences excluding
defences with affirmation which constitutionally are not required in the prosecution of the
case.
The Evidence Burden should not be confused with the burden of persuasion. Evidential
Burden can change hands between parties during the court proceedings. The evidential
burden is only raised to provide enough evidence against a case in the court.
PRINCIPLES OF BURDEN OF PROOF

The underlining principle of the Burden of Proof are contained in the concept of
(I)Onus probandi
(II Factum probans.
In this explantation, Onus(burden) is the liability and obligation to prove a fact which can shift
between parties in the case. Section 101,102 and 103 of the Indian Evidence Act provides the
standard laws that govern the Burden of Proof.
Section 101 to section 114 A under the Indian Evidence Act 1872
SECTION 101- – Burden of proof
This section in its explanation on Burden of Proof states that whoever wants the court to
proffer judgment to a legal case or right based on the availability of facts, must prove those
facts beyond any reasonable doubt.
Illustration
. In a case that a person A desires the court to offer judgment on B following a crime
committed, A must prove that B has committed the said crime.
. A has prayed to the court to give judgment that he is to own a certain land which presently
is possessed by B, based on the facts he presents which B has denied. In this case, A must
prove those facts to be true.
Case
Jarnail vs. State of Punjab Air 1996 SC755
The responsibility of proving of the accused had committed the crime beyond all reasonable
doubt rests on the prosecution and if it fails to establish concrete evidence to shed off the
burden, it cannot depend on the evidence brought by the accused on defence in the case.
The prosecution does not rely on the evidence of the accused to convict the defendant.
SECTION 102 – Burden of Proof of Lies
In a case brought before the court, the burden of proof lies who has the tendency to fail if
no evidence is supplied before the court from either of the parties.
ILLUSTRATION
. If A takes B to court following a feud because of a land which B is in possession and A

asserts that it was left to A following a will made by C, who was B’s father. If neither A or B
presents any evidence, then B will retain the property.
. In a case where A sues B for money resulting from a bond. Both parties have agreed to the
execution of the bond, but B disagrees. If no party can establish an evidence, then A would
win as the bond had been contracted but the case of fraud cannot be proved. In that case,
the burden of proof rests on B.
CASE
Triro vs. Dev Raj AIR 1993 J&K 14
The defendant had prayed the court over a limitation of the period. The position of the
plaintiff was to know the cause of the delay of the delay and the burden of proving if the
case was within the given period was on the plaintiff.
SECTION 103 – Burden as to a fact
The burden of proof to a fact rests on the person who desires the court to believe in the
existence of such fact unless a law authorizes the proof of the fact to be established by any
particular individual.
Illustration
. If A sues B for theft, and desires the court to accept that B admitted committing the theft
to C. A must prove that fact and if B denies it, B must prove it.
The principle of this section states that once a party desires the court to accept and act
based on the existence of a fact, he must prove that fact. This principle is called “rule of
convenience of the burden of proof” and is contained in sections 104,113,113a and 114a .
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.
Illustration
. 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.
. A must prove that the document cannot be found. This section provides the proof of a fact
for which evidence can be admitted where such admission is based on the fact of which
party proves which must be in tandem with the admissibility.
SECTION 105 – Burden of proving that case of accused comes within exceptions
When a person is accused of an offense, the fact required to establish the circumstances
surrounding the case excluding General Exceptions in the Indian Penal Code 45 of 1860, or in any
regulations defining it, is upon him while the court will presume the absence of such a circumstance.
Illustration
. 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.
Thus, this section provides that the burden of proving lies on
the accused if the claims on each case comes under the acceptable exception.
SECTION 106- Burden of proving fact especially within the knowledge

When any fact confined to the knowledge of a person, the burden of proving that fact is on the
person.
Illustration
. The burden of proving the fact is on a person who commits an act with the intention which is
different from the circumstances that the act suggest.
. On an occasion that A is charged on boarding a train without a ticket, the burden of proving such a
fact is on A.
CASE
Eshwarai vs. Karnataka 1994SC
If a man and a woman is found hiding under a bedroom of the deceased who died because
of injuries sustained, the two found must proof the lies upon them and explain their
presence in the room as to the circumstance to the death found.
SECTION 107- Burden of proving the death of a person known to have been alive within
thirty years.
In a situation of a controversy whether a person is dead or alive, and it is established that he
had been alive for the last thirty years, the burden of proving that he is not alive is on the
person who states it.
2013 AMENDMENT OF THE BURDEN OF PROOF ACT

Section 114A. Presumption as to absence of consent in certain prosecution of rape
In a prosecution for rape subject to section 376 of the Indian Penal Code, where sexual
intercourse is proved against the accused, if the woman asserts that it was non-consensual
sex, then the court will honor the claims of the woman.
CASE
Nawab Khan vs. State 1990cr Ij. 1779
The court held that the person with which the sexual intercourse is committed tells the
court it was a non- consensual sex, then the court will assume there was no consent. If the
accused claims that there was a consent, then the burden of proof lies with the accused .
Conclusion
The rule governing the burden of proof is that whoever lays a claim must present evidence
or proof. This rule is subject to the principles that the burden of proof rests on the party that
either asserts a claim or denies it. This implies that whoever brings a case against another to
the court must prove the fact he claims. In criminal cases, the burden of proof on
defendants is based on the evidence that is established before the court which states the
fact that he committed the crime as adduced. An accused can only be presumed guilty
based on the fact established by the plaintiff to the court in accordance with the Burden of
Proof that rules the case.

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NAME – TIYAS RAHA

ROLL – 08, BBA LL.B (H)

WHAT IS THE BURDEN OF PROOF

PRINCIPLES OF BURDEN OF PROOF

(II Factum probans.

. If A takes B to court following a feud because of a land which B is in possession and A

SECTION 106- Burden of proving fact especially within the knowledge

2013 AMENDMENT OF THE BURDEN OF PROOF ACT

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