The law relating to the Burden of Proof and its onus is given under the provisions of the Indian Evidence Act, 1872 (Act) in Chapter VII, Part III of the Act.
Under the Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. Burden of Proof has 3 meanings:
- Persuasive/legal Burden – Burden of Proof as a matter of law & pleading the burden of establishing a case, whether by preponderance of evidence or beyond reasonable doubt
- Evidential Burden – Adducing evidence to establish certain facts.
- Admissibility of Evidence. –
Section – 101 & 102 – Burden of Proof
Section – 101. Burden of proof
Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true.
A must prove the existence of those facts
Section – 102. On whom burden of proof lies
Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father
If no evidence were given on either side, B would b entitled to retain his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, by B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
Section – 101 & 102 of Evidence Act
Burden of proof
Section 101 define burden of proof. This section says on whom burden of proof lies. While as section 102 puts it in negative terms. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it.
The party on whom burden of proof lies must , in order to succeed , establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary’s case.
Supreme Court in Case of State Of Maharashtra vs Wasudeo Ramchandra Kaidalwar on 6 May, 1981
The expression “burden of proof” has two distinct
meanings:
(1) the legal burden, that is, the burden of establishing the guilt and
(2) the evidential burden, that is, the burden of leading evidence.
Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused.
This burden is not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities.
In the case of Anand Mohan v. State of Bihar (2012)
Where the prosecution had established the guilt of the accused , the burden lay on him to prove his innocence
Section – 103. Burden of proof as to particular fact
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration
78 [(a)] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C, A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Section 103 of the Evidence Act provides that burden of proof of any particular fact lies on the person who wishes the court to believe in its existence.
In State of Haryana v. Sher Singh, AIR 1981 SC 1021:. When accused takes Plea of alibi it is he who has to prove it.
The burden of Proof is often lightened by –
a)Presumptions
b)Admissions
c)Estoppels
Section – 104. Burden of proving fact to be proved to make evidence admissible
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Illustrations
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost
Section – 105. Burden of proving that case of accused comes within exceptions.
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code 45 of 1860, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, Accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act
The burden of proof is on A..,
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self control.
The burden of proof is on A.
c) Section 325 of the Indian Penal Code 45 of 1860 provides that whoever, except in the case provided for by section 335 voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances bringing the case under section 335 lies on A
This section is applicable to criminal cases. An accused is presumed to be innocent till his guilt is proved and burden lies on prosecution to prove his guilt. But when accused raise the benefit of exceptions burden lies on him to prove exceptions
In Pratap v Stare of U.P. where the probability that the accused had caused death in self-defense was held to be sufficient even though he had not taken his defense in the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the general exceptions can be discharged by showing a preponderance of probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who sets up the plea of self-defence, and in the absence of proof, it is not possible for the court to presume the truth of the plea of self defense.
The standard of proof upon the accused whilst claiming an exception under section 105 is comparatively lower than that upon a prosecuting party in similar circumstances. An accused may not have to bring forth evidence to prove innocence beyond a reasonable doubt. However, an accused when asserting that his particular circumstances fall within an exception under the said provision, he alone has the onus of proving the same
Section- 106. Burden of proving fact especially within knowledge
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him.
Sabitri Samantaray vs State of Odisha | 2022 LiveLaw (SC) 503 | CrA 988 OF 2017| 20 May 2022
Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove.
Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681]
No comment