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Definitions
Prof. S. D. Bhosale
118
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BURDEN OF PROOF
(Ss. 101 to 114)
QUESTION BANK
1. What is a burden of proof? State the rules as to the burden of proof
2. What is meant by the burden of proof? On whom does it lie? Does the burden of proof
ever shift?
SHORT NOTES
1. Burden of proof.
SYNOPSIS
I.
INTRODUCTION:-
II.
BURDEN OF PROOF MEANS:-
A.
Burden of Proof (S.101):-
1) ‘Burden of Proof’ in civil cases:-
2) ‘Burden of Proof’ in criminal cases:-
B.
1.
2.
3.
‘Onus of proof’ (Ss. 102 to 111):-
On whom burden of proof lies (S.102):-
Burden of Proof as to particular fact (S.103) –
Burden of proving fact to be proved to make evidence admissible
(S.104) –
4.
5.
6.
Burden of proving that case of accused comes within exceptions (S.105) –
Burden of proving a fact, especially within knowledge (S.106):-
Burden of proving the death of a person known to have been alive within
thirty years (S.107):-
The burden of proving that a person is alive who has not been heard of for
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seven years (S.108):-
8.
Burden of proof as to the relationship in the cases of partners, landlord, and
tenant. Principal and agent (S.109):-
9.
Burden of proof as to ownership (S.110):-
10.
Proof of good faith in transactions where one party is in relation to active
confidence (S.111):-
I.
INTRODUCTION:-
The chapter deals with the burden of proof in both civil and criminal cases. Ss. 101
to 106 lay down the general rule regarding the burden of proof. Ss.107 to 111 deal with the
cases wherein the burden of proof is determined in particular cases by certain
presumptions, like the continuance of life (S.107 and 108), partnership, tenancy, agency
(S.109), ownership (S.110), etc. In the cases mentioned in Ss.107 to 114, the burden of
proof is determined by presumption in particular cases and not by the relation of the parties
to the cause in question.
II.
BURDEN OF PROOF MEANS:-
Certain facts require no proof. All other relevant facts need to be proved by
evidence, that is, by the statement of the witnesses, admission or confession of the parties,
and the production of the document. This chapter deals with the question, upon which of
the parties the burden of proof lies?
The burden of proof means the obligation to prove a fact. In other words, the
burden of proof means the obligation to prove the truth or falsehood of a fact or proposition.
The term 'Burden of proof' has a double meaning. Firstly, in its proper sense, it means the
duty of establishing the entire case. As such, it never shifts but rests all the time on the
person who alleges the affirmative, i.e. the plaintiff in a civil case and prosecution in a
criminal case (S.101 embodies this principle). Secondly, in another sense, called an ‘onus
of proof’, it indicates the party's duty to adduce evidence, and that burden shifts to the
opposite party each time the prima facie case is made out by the other. (Ss.102 to 111
embodies this principle.)
A.
Burden of Proof (S.101):-
i)
whoever desires any Court.
ii)
iii)
iv)
v)
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, the burden of
proof is said to lie on that person.
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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 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.
S.101 lays down the burden of proof in the former sense, i.e. proving the entire case.
It states that whoever wants a Court to give judgment in his favour as to any legal right or
liability, dependent on the existence of some facts, must prove the existence of those facts.
It is a general rule regarding the burden of proof that 'he who asserts, must prove'. This is
in accordance with the maxim ‘EI INCUMBIT PROBATIO QUI DICIT NON QUI
NEGAT,’ i.e. the burden of proof is upon the party who substantially asserts the affirmative
of the issue but not on the party who denies it. This rule has two reasons. First, he who
drags another into the Court must bear the burden of proving the facts he asserts. The
second reason is that it is more difficult to establish a negative fact than to establish it
affirmatively.
The burden of establishing an entire case is also called a ‘legal burden’ or ‘burden
of proof on pleading’.
'Burden of Proof' and 'onus probandi':-
As discussed above, there are two kinds of burdens of proof.
1) ‘Burden of Proof’ in civil cases:-
In civil cases, the burden of proving the case is discharged by a mere
preponderance of probability. In other words, the burden of proof is not stricter than in
a criminal case.
In a civil case, the plaintiff always has the burden of proving the entire case;
however, the burden of adducing evidence may shift.
In Umesh Bondre v. Wilfred Fernandes (AIR 2007 BOM. 29)
Facts: The plaintiff filed suit against the defendant for mandatory injunction. Plaintiff's
case was specific to an agreement. The plaintiff did not prove the agreement.
Held: The burden of proof is on the plaintiff to prove his case. He cannot plead that his
evidence should be accepted because the defendant did not enter the witness box.
2) ‘Burden of Proof’ in criminal cases:-
In criminal cases, the prosecution has to prove the guilt of the accused beyond all
reasonable doubts; mere preponderance of probability would not do. The prosecution has
to prove the guilt of the accused on its own evidence. The weakness of the defence would
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not help the prosecution.
B.
‘Onus of proof’ (Ss. 102 to 111):-
Ss. 102 to 111 lay down the rules for ‘adducing evidence’ or ‘onus of proof’, which
shifts. They are as follows –
1.
On whom the burden of proof lies (S.102):-
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence was given on either side.
Illustrations
(a) A sues B for the 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 be 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, but 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.
The section tries to determine the party on whom the burden of proof lies. It lays
down that the burden of proof lies on him, whose case would fail if no evidence were given
on either side. For example, if A sues B for recovery of damages for breach of contract and
neither party gives any evidence, A would lose his case. Therefore, the burden lies on A to
prove that there was a contract between them and that B broke it.
If B admits the contract but says that his consent is caused by coercion – if neither
party gives evidence, B's case will fail; therefore, the burden lies upon B to prove coercion.
2.
Burden of Proof as to particular fact (S.103) –
The burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence unless any law provides it that the
burden of proof of that fact shall lie on any particular person.
Illustrations
(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) B wishes the Court to believe that he was elsewhere at the time in question. He
must prove it.
Compared to S.101, this section provides proof of some particular facts,
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whereas, under S.101, the party has to prove the whole of the facts. The illustrations
mentioned above illustrate the meaning of this section.
3.
Burden of proving fact to be proved to make evidence admissible (S. 104) –
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 wish to prove a dying declaration by B. A must prove B's death.
(b) A wish to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.
4.
Burden of proving a case of accused that comes within exceptions (S.105) –
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 (XN of 1860) or any special exception or proviso contained in any other part of the
same Code, or any law defining the offence, is upon him. 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 (XLV 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 S. 325.
The burden of proving the circumstances bringing the case under S. 335 lies on A.
5.
Burden of proving a fact, especially within knowledge (S.106):-
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 travelling on a railway without a ticket. The burden of proving
that he had a ticket is on him.
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Burden of proving the death of a person known to have been alive within thirty
years (S.107):-
When the question is whether a man is alive or dead, and it is shown that he was
6.
alive within thirty years, the burden of proving that he is dead is on the person who affirms
it.
7. The burden of proving that a person is alive who has not been heard of for seven
years (S.108):-
W
hen the question is whether a man is alive or dead, and it is proved that he has
not been heard of for seven years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is shifted to the person who affirms
it.
S.107 lays down that if the person is proved to have been living within 30 years, it
shall be presumed that he is alive, and the burden of proof that he is dead lies on that person
who affirms that he is dead.
S.108, on the other hand, lays down that when it is proved that a person has not been
heard of for 7 years by those who would naturally have heard of him if he had been alive,
the burden of proving that he is living shifts to the person who affirms it.
8.
Burden of proof as to the relationship in the cases of partners, landlord, and
rincipal and agent (S.109):-
tenant,
p
When the question is whether persons are partners, landlord, and tenant, or principal
and agent, and it has been shown that they have been acting as such, the burden of proving
that they do not stand, or have ceased to stand, to each other in those relationships
respectively, is on the person who affirms it.
Illustrations
Suppose A sues B as a partner of a firm. B says that he has never been a partner of
that firm or has ceased to be a partner of that firm. If it is shown by A that B has been acting
as a partner, a presumption is raised under this section that he was and still is a partner. The
burden of proving that B was not or has ceased to be a partner is thrown on B.
When the existence of a relationship between a lessor and lessee is proved, its
continuance is presumed under S 109, and the burden of proving its non-existence lies on
the person who asserts it. A presumption of continuance will be raised when a person has
been in possession of the land as a tenant and there is no proof of the lease being for a
definite term or of a notice to quit. Where the relationship between landlord and tenant has
been established, the mere non-payment of rent is not enough to show that the relationship
has ceased to exist.
9.
Burden of proof as to ownership (S.110):-
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When the question is whether any person is the owner of anything of which he is
shown to be in possession, the person who affirms that he is not the owner bears the burden
of proving that he is not the owner.
10.
Proof of good faith in transactions where one party is in relation to active
confidence (S.111):-
Where there is a question as to the good faith of a transaction between parties, one
of whom stands to the other in a position of active confidence, the burden of proving the
good faith of the transaction is on the party who is in a position of active confidence.
Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought
by the client. The attorney is responsible for proving the transaction's good faith.
(b) 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.
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