UNIVERSITY FACULTY OF LAW,MLSU

• NAME –Sumit soni

• SUBJECT- EVIDENCE

• SUBMISSION DATE- 6-4-20

• SUBJECT INCHARGE- PD SIR

Doctrine of Res Gestae:-

Res Gestae is a Latin word which means "things done." This is the rule of law of
evidence and is an exception to hearsay rule of evidence that hearsay evidence is
not admissible. It is a spontaneous declaration made by a person immediately after
an event and before the mind has an opportunity to conjure a false story. It
represents an exception to the hearsay rule. Res gestae is a concept which as a
matter of principle is employed in the English system of administration of criminal
justice under the name of "res gestae". In our system of administration of justice,
Article 19 of Qanun-e-Shahadat,1984 corresponding to section 6 of the Evidence Act
of 1872, is an enacted provision of law under which statement made immediately
after the occurrence under the influence of occurrence in order to characterize it
and connecting therewith would be admissible under this article as "res gestae"
evidence.

In Babulalvs W.I.T Ltd. it was observed that the statement of law in section 6 of
the Evidence Act is usually known as Res Gestae. The literal meaning of the word
"res" is "everything that may form an object of rights and includes an object,
subject matter or status." In America an attempted definition of res gestae is that
it consists of the 'circumstances, facts and declarations' which grow out of the
main fact, are contemporaneous with it, and serve to illustrate its character.
The principle has been explained by LORD NORMAND in Teper v. Reginam, 1952, 2 All
ER 447, 449: 1952 AC 480:
"Nevertheless the rule (Hearsay) admits of certain carefully safe-guarded and
limited exceptions, one of which is that the words may be proved when they form
part of the res gestae... It appears to rest ultimately on two propositions -- that
human utterance is both a fact and a means of communication, and that human action
may be so interwoven with words that the significance of the action cannot be
understood without the correlative words and the dissociation of the words from the
action would impede the discovery of truth." One of the leading decisions in
relation to the res gestae exception is that of the Privy Council in Ratten v. The
Queen, which dealt with the admissibility of the statement of a telephone operator
who received a call from the deceased minutes before she was allegedly murdered by
her husband. The Council characterised the statement as original evidence of
'verbal facts', as opposed to hearsay evidence, as the object of admitting the
statement was not to establish the truth of the statement made, but merely to
establish the fact that it was made. The following observation was made:
"Words spoken are facts just as much as any other action by a human being. If the
speaking of the words is a relevant fact, a witness may give evidence that they
were spoken. A question of hearsay only arises when the words spoken are relied on
"testimonially," i.e., as establishing some fact narrated by the words." The test
for applying the rule of res gestae is that the statement should be spontaneous and
should form part of the same transaction ruling out any possibility of concoction.
Despite its intuitive appeal, Wigmore's notion that a person would not have time to
think up a lie before making an excited utterance in response to a startling event
is not borne out by psychological research. The time required to craft a lie is
slight -- sometimes only a matter of seconds. It was asserted that the difference
in reaction time between deceptive and sincere responses is negligible. The excited
utterance exception, which tolerates more than a thirty-minute gap between the
event and the utterance, allows more than sufficient time for planning a false
report. Psychological studies support this observation and indicate that the
difference between the time of cognition and the time when the declarant may begin
to fabricate is so small that it is often impossible to measure without
instruments. The res gestae doctrine has often been criticised. According to
PROFESSOR STONE, "no evidential problem is so shrouded in doubt and confusion." It
was the opinion of PROFESSOR WIGMORE that the rule is not only useless but also
harmful.

• Admissions under Indian Evidence Act,1972

The Indian Evidence Act, 1872 Section 17-31 deal with the provisions related to
admission and confessions and their relevancy.

Section 17. Admission defined

An admission is a statement,8A[oral or documentary or contained in electronic
form], which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and under the circumstances, hereinafter
mentioned.

Section 18. Admission- by party to proceeding or his agent

Statements made by party to the proceeding, or by an agent to any such party, whom
the Court regards, under the circumstances of the case, as expressly or impliedly
authorized by him to make them, are admissions.

By suitor in representative character — Statements made by parties to suits, suing

or sued in a representative character, are not admissions, unless they are made
while the party making them held that character.
Statements made by—
(1) By party interested in subject-matter—persons who have any proprietary or
pecuniary interest in the subject-matter of the proceeding, and who make the
statement in their character of persons so interested, or

(2) By person from whom interest derived- Persons from whom the parties to the suit
have derived their interest in the subject-matter of the suit, are admissions, if
they are made during the continuance of the interest of the persons making the
statements.

Section 19. Admissions by persons whose position must be proved as against party to
suit
Statements made by persons whose position or liability it is necessary to prove as
against any party to the suit are admissions, if such statements would be relevant
as against such persons in relation to such position or liability in a suit brought
by or against them, and if they are made whilst the person making them occupies
such position or is subject to such liability.

Section 20. Admissions by persons expressly referred to by party to suit

Statements made by persons to whom party to the suit has expressly referred for
information in reference to a matter in dispute are admissions.
Thus, by taking the collecting conclusion from section 17 to 20 admission can be
define as a statement oral or documentary or in electronic form which suggest any
inference as to any fact in issue or relevant fact and made by
1. A party to proceeding,
2. An authorized agent to any party to proceeding,
3. Parties to representative suit holding capacity as representative while making
the statement,
4. Persons who have proprietary or peculiar interest in the subject matter of
proceeding,
5. Person from whom parties to the suit have derived their interest in the subject
matter of the suit.
6. Persons whose position and liability it is necessary to prove against any party
to the suit.
7. Persons to whom a party to the suit has expressly referred for information in
reference to matter in dispute.

Uses of Admission:-
Section 21. Proof of admissions against persons making them, and by or on their
behalf
Admissions are relevant and may be proved as against the person who makes them, or
his representative in interest; but they cannot be proved by or on behalf of the
person who makes them or by his representative in interest, except in the following
cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is
of such a nature that, if the person making it were dead, it would be relevant as
between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind of body, relevant or
in issue, made at or about the time when such state of mind or body existed, and is
accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is

relevant otherwise than as an admission.

• Confession Under Indian Evidence Act

The term confession is not defined in the Indian Evidence Act. However, it is dealt
with from Section 24 to 30 of the Evidence Act[1] and in Section 164, 281 and 463
in the Criminal Procedure Code, 1973. Confessional statements operate on the
presumption that an accused will not make an untrue statement which establishes his
guilt. In the case of Pakala Narayan Swami, Lord Atkin stated that “A confession
must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not in itself a confession”.[2] A confession has
to be a direct admittance of an offence, when a statement might be described as
suggesting an inference it will not amount to a confession.[3] In the case of
Nishi Kant Jha v State of Bihar the Supreme Court stated that one can rely on a
part of the confessional statement and can reject the rest.[4] Confession cannot be
regarded as the sole basis for a conviction as prudence and justice dictates that
such evidence may be used as corroborative piece of evidence.[5] Deliberate and
voluntary confessions of guilt, if proved are considered the most effectual proofs
in law.[6] Confessions are required to be accepted or rejected as a whole.[7]
Confession of a co-accused cannot be regarded as substantive evidence.[8]

Forms of Confession
When a confession is made in the Court itself, it is called a judicial confession
whilst the one made to anyone outside the Court is referred to as extra-judicial
confession. Judicial confessions are made before a magistrate under Section 164 of
Crpc or in the Court during proceedings.[9] A conviction may be based on judicial
confessions.

Extra Judicial confessions are those which are made elsewhere than before the Court
or a magistrate. If proved to be credible with corroborative evidence, conviction
may be based upon it. It not imperative for the statement to address an individual,
it may be in form of a prayer, writing or heard by a passerby. The Courts do not
inherently start of by considering extra- judicial confessions to be a weak form of
confession, rather they are required apply two test- is it voluntary and is it
true.[10] In the case of Sahoo v. State of U.P, the after murdering his daughter-
in-law, was heard by several neighbors stating “I have finished her”. This
statement was held to be confessionary in nature.

Section 24

Section 24 of the Indian Evidence Act, 1872 refers to the term confession. Although
confession is not defined in the section, it refers to the relevancy of a
confession. Any confession that is made by an accused will be considered
irrelevant, if it is caused by inducement, threat or promise. This inducement,
threat or promise should have reference to the charge against him, which is
produced from a person in authority, providing the accused reasonable grounds to
believe that by making the confession he would gain some form of advantage. This
section does not require positive proof, a well grounded conjecture reasonably
based upon the circumstances disclosed in the evidence is sufficient to exclude a
confession.[11] If a confession is made by a person before others accused him of an
offence such a confession. In case of ordinary confessions, the burden is not upon
the prosecution to establish that the confession was made without threat,
inducement or promise. However, it is the right of the accused to have the
confession excluded, if some evidence of mal practice is proved by the accused. In
the case of State of MP v. DayaramHansraj, wherein the magistrate while recording
the confession elicited answers by questioning the accused, such a confession
cannot be considered voluntary in nature.[12] When a confessional statement
recorded by a Judicial Magistrate with all the precautions and which was
corroborated by direct and indirect evidence, was considered a voluntary
confession.[13] A person making a statement as a suspect who is subsequently
considered an accused, his statement would amount to a confession.[14]

Section 25

Section 25 states that no confession made to a police officer can be used against
the accused in the Court of law. The principle behind this section is to avoid
entertaining false or forceful confessions.[15] A confession made to a police
officer while in custody, it is not provable in any proceedings in which he is
charged to the commission of an offence. The privilege of right against self
incrimination forms the roots of this section. Further, it is framed to discourage
the authorities against abuse of power.[16] In R v. MuruganRamasay,[17] the Court
identifies the fact that Police authority is capable of creating menace for those
under its scrutiny, this section is framed to protect people from such an
authority. A confession when written in a letter, signed by the accused was
delivered to a police officer was considered admissible as it was not written in
the presence of the police officer.[18] In the case of M Yellappa v. State of
Karnataka, wherein the accused confessed of murdering his wife, stating during the
commission of the offence no one was present except him, his wife and their child.
It was held by the Court that the statement ‘one one was present except him’ cannot
be separated as exculpatory evidence, as it provided a connecting link in the chain
of circumstances.[19] However mere presence of a police officer does not render the
statement inadmissible. If person A is making a confession to person B and a police
officer happen to overhear the same, such a confession will be considered voluntary
and admissible.

Section 26

Section 26 states that if a confession is made while the person is in the custody
of a police officer, unless he is in the presence of a competent magistrate. This
section excludes confessions made to police officers in any circumstance. The
presence of a Magistrate secures the freedom, safety and voluntary nature of the
confession and the person confessing can do so without the fear of a police
officer.[20]A confession made by a person to a police officer will be admissible if
done in front of the Magistrate with the procedure prescribed under Section 164 of
Crpc.

Section 27

This section is based on the principle that if a confession made by an accused is

supported by the discovery of a fact, it may be presumed to be true and not
extracted. It will come into operation only when: (a) if and when certain facts are
deposed to as discovered in consequences of information received from an accused
person in police custody, (b) if the information relates to the fact discovered.
This section serves as a proviso for Section 25 & 26. This section does not clarify
whether the information can only be received by a police officer.[21] The broad
ground for not admitting confession made under inducement or threat to police
officer still exist, however this exclusion disappears if the confession relates to
discovery of a fact in consequences of information given.[22] It is immaterial
whether the statement itself can lead to discovery or more information is required
by the police.[23] In the case of Ramchandra, it was stated when the accused was
in judicial custody under a remand order, he was temporarily in the custody of the
police when he was interrogated he must he held to have been in such custody for
the purposes of applicability of this section.[24] A confession to which this
section applies is admissible even though it was obtained under circumstances which
makes it inadmissible under section 24.[25]

Section 28

Section 28 states that a confession is admissible if all forces and influence of

threat, inducement or promise is removed and the confession is free and voluntary.
This removal is done either by intervening, lapse of time or by the removal of
person holding the accused under inducement. The onus to prove that inducement has
been removed is upon the prosecution.[26]

Section 29

This section states that if a confession is relevant, it will not be considered

irrelevant if It is made under the promise of secrecy, in consequence of a
deception practiced on the accused, when the accused was drunk, in answer to a
question the accused need not have answered and in consequences of the accused not
receiving a warning that he was not bound to make it and that it might be used
against him. Evidence provided by a policeman who overheard an accused person’s
statement made in another room and in ignorance of policeman’s vicinity and
uninfluenced by it was considered admissible.[27] When a confession was recorded
with giving warning as per Section 164 of Crpc, it was considered admissible.[28]
In the case of Rex v. Derrington, it was held that a letter written by the accused
was admissible regardless of how it was obtained.[29]
• Dying Declaration Under Indian Evidence Act

Dying declaration is the statement made by a person as to the cause of his death or
as to the circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement that is given just before
the death is dying declaration. Also, the statement that is given before and which
explains the cause of death is also dying declaration. A person who is conscious
and knows that death is about to happen can make a statement about the reason of
his/her death will be admissible in the court. The word dying declaration explains
the word itself. It means a written or verbal statement of relevant facts made by
the person who is about to die or is dead. It is the statement of a person who knew
the cause of his death or the circumstances of his death. It is said that a man
will not meet his maker with lying on his mouth (nemo marituruspresumunturmentri).
In our Indian Law it is a fact that is believed that a ‘dying man can never lie’ or
‘truth sits upon the lips of a dying man’.[1]

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a
word. The Apex court stated that the evidentiary value of the gestures and signs
will depend on certain factors like who recorded the statement, what are the
gestures, what were the questions asked, were the questions asked were simple or
not etc. Gestures can be difficult to interpret but this does not mean that the
accuse can roam freely after hurting someone. If the victim is not able to speak,
gestures or signs can be taken as evidence.

In Nirbhaya case 2013, a bench of Justices DipakMisra, R Banumathi and Ashok

Bhushan said a dying declaration should not necessarily be made by words or in
writing and it could be through gestures. Not just words but even gestures can be
made admissible in the court now.

Question answer form

Dying declaration should be in question and answer form. If the dying declaration
is not in question answer form it was held that it cannot be discarded for this
reason alone. The Statement can be recorded in a narrative way also. It is not
mandatory to record it in question answer form. But it is always best to record it
in question answer form as that will make the evidentiary value of the dying
declaration more.

Fitness Of the victim should be examined

While recording the statement of the victim, it is very important to examine the
health of the victim. It can be possible that he is making stories in the presence
of drugs given. Judicial Magistrate should satisfy himself that the victim is in a
fit condition to give a statement. A certificate should be obtained by the judicial
magistrate from the doctors examining the victim.

This certificate can prove in court that the statement given was in fit condition
and it is true. If the circumstances do not permit attendance of the medical
officer, then judicial magistrate can record statement without the medical
certificate but judicial magistrate should provide the reason why he considered it
indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more
evidentiary value than any other dying declaration. Doctors and police officer are
also authorized to record the dying declaration if the magistrate is not present.
But sometimes the situation arises where dying declaration recorded by the
magistrate can be questioned. For example, If the magistrate records it even when
the doctor does not approve the victim medically fit. In this situation, the
evidentiary value of the dying declaration can be questioned.

The court always looks into the certain things to decide the value of the
statements. The court always seeks if the victim was mentally fit while giving the
statement. If the victim is not fit at the time of giving a statement then that
statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its
evidentiary value. It should be taken with precaution and keeping in minds the
following points:

1. The victim should be mentally fit to given statement. A medical certificate

should be given by the doctor about her health.
2. Doctors and the Police officer can record the statement but it is best if a
magistrate records it.
In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.[2] The
first was recorded by the doctor when she was admitted to the hospital, the second
was by SDM during which she gave exact details of the crime and the third one was
recorded by a metropolitan magistrate and was mostly by gestures.

In this case, all three dying declarations were recorded. But the one recorded by
the magistrate was important. And the court did accept the dying declaration
recorded by magistrate even when it was in gestures and nods.

In Kushal Rao v State of Bombay[3], The Supreme Court Of India accordingly states
that the court must be satisfied that the deceased was mentally fit to make the
statement. And victim had the opportunity to observe and identify the accused. The
victim should not be making the statement under any influence. Also, Supreme Court
Of India held that once the court is satisfied that the dying declaration is true,
the conviction can be upheld and there is no need for further corroboration.

If the dying declaration is recorded by the medical officer or police officer, it

should be attested by one or more person that is present there.

Language Of Statement
As far as possible the statement should be recorded in the language of the
declarant or the court language. The court cannot discard the dying declaration on
the basis of the language. It can be recorded in any language. Even if the deceased
made the statement in Urdu, Hindi, Punjabi languages, it was held that statement
could not be discarded on the ground of language alone or on the ground that it was
recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in
English but the precaution was taken in explaining every statement to the deceased
by another person, it was held that the statement was the valid dying declaration.

Points to remember
1. Dying declaration can be recorded in any language.
2. If the statement was in another language than the one which magistrate recorded,
then precaution should be taken.
3. The court cannot reject or discard the dying declaration on the sole ground of
language.
In Biju @ Joseph Vs State Of Kerala[4] it was held by the court that merely on the
ground that the statement of the deceased was in her own language can not vitiate
the dying declaration. It was stated by the High Court Of Kerala :

“Assuming that the deceased gave her statement in her own language, the dying
declaration would not vitiate merely because it was recorded in a different
language. We bear in mind that it is not unusual that courts record evidence in the
language of the court even when witnesses depose in their own language. Judicial
officers are used to the practice of translating the statements from the language
of the parties to the language of the court. Such translation process would not
upset either the admissibility of the statement or its reliability”

Multiple dying declarations

Supreme Court Of India held that multiple dying declarations can be relied upon
without corroboration if there is consistency in all the dying declaration. If all
the dying declarations are similar to each other than it can be admissible.[5]

But if the dying declaration is different from each other than the court will
examine the facts of the case or can examine the statement of other witnesses to
ascertain the truth of the case.

The statement of the deceased should match the facts of the case. It is very
important to understand the nature of dying declaration. Points to remember in
multiple dying declarations:

1. Consistency in all the dying declaration should be there.

2. If all the dying declaration does not match, then the court will examine the
facts of the case with the dying declaration Or examine the witnesses.
In Kushal Rao v state of Bombay[6], this case set the importance of dying
declaration and what is the right process to record it. In this case, if the dying
declaration is recorded in question-answer form, if the medical certificate is
given by the doctor, if it is recorded by the authorized person, then it is
admissible and reliable. If there are multiple dying declarations, then court looks
into all these points to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon
without corroboration if consistency is maintained throughout. Otherwise, the
courts would have to examine the statement of other witnesses to ascertain the
truth in a criminal trial.

An Expectation of death not necessary

Under English Law, the victim should not be under any expectation of death.
Evidence Act has taken this law from English law. If the statement has been made
even when no cause of death had arisen then also the statement will be relevant. It
is not important at all that the statement recorded should be just before the death
of the victim.

In Pakala Narayan Swami v Emperor[7], it was held that the letter given by the
deceased to his wife before going to the place where he was killed was relevant.
The court said that the statement made must be at any rate near death or the
circumstances of the transaction explaining his death is relevant under section 32
of Evidence Act. In this case, the court stated that dying declaration can be any
statement that explains the cause of death or the circumstances of the transaction
explaining his death. Hence, statements as to any of the circumstances of the
transaction which resulted in the death would be included.

F.I.R as dying declaration

When an injured person lodges a FIR and then dies, it was held that the FIR will be
relevant as a dying declaration.

In Munnu Raja and another v. State of M.P.[8], the Supreme Court Of India held
that statement by injured person recorded as FIR can be treated as dying
declaration and such statement is admissible under Section 32 of Indian Evidence
Act. It was also held that dying declaration must not cover the whole incident or
narrate the case history. Corroboration is not necessary for this situation, Dying
declaration can be the sole purpose for conviction.

If declarant does not die

The question arises when the dying declaration is recorded and the declarant does
not die. The statement is only converted in dying declaration when the victim/
declarant dies. If the declarant does not die, then the declarant can be used as a
witness in the court against the accused. It is said that the dying declaration is
only recorded on the presumption that the declarant is about to die. And the
declarant won’t lie just before dying. But if the declarant does not die then the
statement can’t be admissible as dying declaration.

Conclusion
Dying declaration is one of the most important evidence that is admissible in court
as dying declaration can be a sole purpose for conviction of accuse. Hence, it
should be recorded carefully with all the procedure that the court has mentioned.
It should not be tampered at all by anyone. If the dying declaration is incomplete,
then it is very much to be rejected by the court. It is on the court discretion to
check if the dying declaration is recorded carefully or not.

• PRINCIPLES OF BURDEN OF PROOF UNDER INDIAN EVIDENCE ACT

The underlining principles of the Burden of Proof are contained in the concept of
Onus probandi and Factum probans. In this explanation, Onus (burden) is the
liability and obligation to prove a fact which can shift between parties in the
case. Sections 101, 102 and 103 of the Indian Evidence Act provides the standard
laws that govern the Burden of Proof.

Section 101
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.
Real Case:
Supreme Court in a case between Jarnail and State of Punjab A I R 1996 SC 755 that
in all criminal case, the responsibility of proving if 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 defense 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.

Real Case:
In a case between Triro and Dev Raj A I R 1993 J&K 14. Because of the delay in
constructing the suit, 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 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 that 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 the 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.
Section 106 – Burden of proving fact specially 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.
Real Case
In a case between Eshwarai and Karnataka 1994 SC, if a man and a woman is found
hiding under the 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.

Section 108 -Burden of proving that person is alive who has not been heard for
seven years
This section states that if a person who has disappeared and has been unheard of
for seven years by those who would naturally have heard of him, if he were alive,
that person would be presumed to be dead. This presumption arises when a question
of him being alive or dead arises in the court. Hence, if the court adopts the
presumption, the party who claims that the person is alive has to prove it. It is a
simple presumption of death and not the time of death.

In Chard v Chard (1956 P239: 1955 3 WLR 954), a man got married in 1909. He last
heard of his wife in 1917 and remarried in 1933, and subsequently filed a petition
for a declaration that the marriage of 1933 was a nullity. The court held that the
presumption of her death was not proven as any evidence of the condition of her
health or those, who would have naturally heard of her, were not given and
therefore, the marriage of 1933 was a nullity.
Section 109

When a question arises as to whether certain persons are partners, landlord and
tenant or principal and agent and it has been shown that they have been acting as
such; the court presumes them to be so related. If a person denies the relationship
or affirms that the same has been ceased, the burden of proof to prove that they
were never related or have ceased to relate lies on him. Hence, the court presumes
the existing status quo or in the continuity of things.

Section 110

This section simply states that if the question is whether a person is the 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 affirming that he is not the owner.

Section 111

This section states that if a person enjoys the active confidence of the other, he
must act in good faith to the other and the burden lies upon him to prove that he
did act in good faith. Illustration (b) to the section makes it clearer: The good
faith of a sale by a son just come of age to a father is in question in a suit
brought by the son. The burden of proving the good faith of the transaction is on
the father.

Section 111 A

This section makes the court presume that a person is liable for disturbing public
order and peace of an area declared to be a disturbed area if he has been guilty of
certain offences in the past. These offences include the offences themselves or
criminal conspiracy or attempt to commit or their abatement. They include sections
121, 121A, 122 and 123 of the Indian penal code.