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SESSION: 2021-22
SUBJECT: EVIDENCE LAW ii
TOPIC: BURDEN OF PROOF SECTION (101 TO 103)
UNDER INDIAN EVIDENCE ACT
1 GCT
ST
NAME: ASJAD ALAM
FACULTY ROLL NO: 19BALLB222
ENROLLMENT NO: GK2080
YEAR & SEMESTER: 3 YEAR & 6 SEMESTER
RD TH
SUBMITTED To: Mr. Ghalib nashter
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Designation: assistant professor
I am over helmed in all humbleness and gratefulness to acknowledge my depth
to all those who have helped
me to put these ideas, well above the level of simplicity and into something
concrete. I would like to express my special thanks of gratitude to my
teacher MR GHALIB NASHTER who gave me the golden opportunity
to do this wonderful Assignment on the topic "BURDEN OF
PROOF”, which also helped me in doing a lot of Research and i came
to know about so many new things. I am really thankful to them.
Any attempt at any level can’t be satisfactorily completed without the
support and guidance of MY parents and friends. I would like to thank my
parents who helped me a lot in gathering different information, collecting Case
laws and guiding me from time to time in making this
project, despite of their busy schedules, they gave me different ideas
in making this Assignment unique.
THANKING YOU
ASJAD ALAM
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1. INTRODUCTION
2. PRINCIPLES OF BURDEN OF PROOF
3. SECTION 101 OF THE INDIAN EVIDENCE ACT,
1872.
4. SECTION 102 OF THE INDIAN EVIDENCE ACT,
1872
5. SECTION 103 OF THE INDIAN EVIDENCE ACT,
1872
6. CASE LAWS
7. CONCLUSION
8. REFERENCES.
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The Law of Evidence is a critical piece of legislature which
supplements Court’s proceedings. Evidence is the material that
establishes a claim or an assertion and enables the Court to come to a
just decision. Oral or documentary evidence should be produced
before the Court to prove or disapprove respective contentions of both
parties. The rule of evidence requires the respective parties to place
the best evidence in hand to establish their assertion beyond the
reasonable doubt. The Law of evidence is said to be the law of the
forum or the Lex fori.
The concept of burden of proof is defined under Section 101 of the
Law of Evidence Act, states that when a person is bound to prove the
existence of a fact, the burden to provide evidence for the same lies
upon him. Chapter VII of the Act deals with provisions under burden
of proof. The term “burden of proof” isn’t defined in the Act,
however it is the rudimentary principle of criminal that, that the
presumption of innocence lies with the accused unless proven
otherwise.
Illustration: A wants the Court to convict B of theft. Since the
assertion of theft was made by A, the onus to provide evidence to
support such assertion lies upon him.
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Under the Indian Evidence Act, 1872, sections 101 to 103 deals with
the burden of proof in general, whereas sections 104 to 106 deal with
the situation where the burden of proof is placed on a specific
individual. The concepts of Onus Probandi and Factum
Probans include the underlying principles of the burden of proof.
Onus Probandi is a general rule that requires a person asserting the
positive to prove it. A person who maintains an affirmative stance has
the onus probandi. The onus probandi is on the party seeking to
strengthen his case with a specific fact that he is said to be aware of.
The principle of Burden of proof is based on Order 6, Rule 2 of the
Civil Procedure Code, 1908, states that the pleading shall only contain
important facts that must be shown in a concise form Evidence is a
relative term that refers to a connection between two facts: the fact in
dispute (factum probandum), or statement to be proven, and the
evidential fact (factum probans), or material corroborating the
proposition. The former is inherently hypothetical; the latter is
advanced as fact in order to persuade the court that the former is
likewise true.
According to the fundamental premise of criminal law, the accused
should be deemed innocent unless proven guilty beyond a reasonable
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doubt. The prosecution has the first burden of proving that the
accused has committed a crime in a criminal proceeding.
In the case of the State of Rajasthan vs Sher Singh, 1994, it was held
that it was unlawful to examine defence evidence before prosecution
evidence in criminal proceedings.
In criminal trials, the prosecution bears the burden of proof. The
prosecution must show beyond a reasonable doubt that the defendant
is guilty until the prosecution proves otherwise. The court shall
assume that the accused is innocent. It was held in the case of Md.
Allmuddin v. State of Assam, 1992 that the defence version may
even be false, and nevertheless, the prosecution cannot derive any
advantage from the falsity or other infirmities of the defense version,
so long as it does not discharge its initial burden of proving the case
beyond all reasonable doubt.
In Jarnail Singh v. the State of Punjab, AIR 1996, it was
established that if the prosecution fails to produce sufficient evidence
to meet their burden, they cannot rely on the evidence presented by
the accused in support of their defence.
In criminal trials, the prosecution bears the duty of establishing the
defendant's guilt, and they must do it beyond a reasonable doubt. The
plaintiff has the burden of proving his case by a majority of the
evidence in civil cases. If the prosecution fails to prove the accused's
guilt beyond a reasonable doubt, the accused is entitled to an
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acquittal. This was determined in the case of Ouseph v. State of
Kerela, which was decided in 2004.
“Whoever desires any Court 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, it is said that the burden of proof lies on that
person.”
The section states that if someone is desirous of obtaining a judgment
or an order from the courts or authorities upon some facts which he
thinks are true and correct that he is required to prove the same.
Whoever is required to prove the said fact it is said that the burden of
proof lies on that person. The following examples will help for
understanding this concept better:
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.
Rita is of the opinion that a certain land belongs to her but Sita
has occupied the same stating it is her land. If Rita decides to
file a suit and obtain a decree stating that the land belongs to her
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then she is required to prove the same to the court. Hence, here
the burden of proof is on Rita.
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. This rule
of convenience has been adopted in practice, not because it is
impossible to prove a negative, but because the negative does not
admit of the direct and simple proof of the existence of a fact should
be called upon to prove his own case. The parties, 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. He must succeed by the strength of his own right
and and the clearness of his own proof. The expression burden of
proof has to meanings: 1) the legal burden i.e., the burden of
establishing case.2) the evidential burden, i.e., the burden of leading
evidence. In criminal cases burden of establishing the charge against
the accused lies on the prosecution. Here it is not the accused who has
to prove his innocence because he is presumed to be innocent till his
guilt is proved. That is why prosecution has to prove his case and
section 101 comes into operation. In civil cases burden of proof is on
the party who asserts. But the standard of proof required in civil cases
is not that the plaintiff must prove a fact beyond any shadow of doubt.
In ascertaining which party is asserting affirmative, the court looks to
the substance and not the language used. Whoever complains against
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the railway administration that the provisions of section 28 have been
contravened must establish that there has been preference between
himself and his goods on the one hand and the competitor and his
goods on the other was held in Raigarh Jute Mills Ltd. v/s Eastern
Railway AIR 1958 SC 525.Section 101 of the Evidence Act has
clearly laid down that the burden of proving a fact always lying upon
the person who asserts the facts. Until such burden is discharged, the
other party is not required to be called upon to prove his case was
held in Raj Kumar Verma V/s Nandan Kumar & Ors. In Narayan
Govind Gavate Etc vs State Of Maharashtra on 11 October, 1977
court said, the result of a trial or proceeding is determined by a
weighing of the totality of facts and circumstances and presumptions
operating in favour of one party as against those which may tilt the,
balance in favour of another. Such weighment always takes place at
the end of a trial or proceeding which cannot, for purposes of this
final weighment, be split up into disjointed and disconnected parts
simply because the requirements of procedural regularity and logic,
embodied in procedural law, prescribe a sequence, a stage, and a
mode of proof for each party tendering its evidence. What is weighed
at the end is one totality against another and not selected bits or scraps
of evidence against each other. In absence of any reasonable proof
that defendant was the actual owner of the property, and plaintiff was
only a name given does not prove that respondent was owner and
plaint maker was only a name given to the property was held in Rama
Kanta Jain v. M.S. Jain, AIR 1999 Del 281. What to be proved by
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prosecution is well settled that the prosecution can succeed by
substantially proving the very story it alleges. It must stand on its own
legs. It cannot take advantage of the weakness of the defence. Nor can
the court on its own make out a new case for the prosecution and
convict the accused on that basis; Narain Singh v. State, (1997) 2
Crimes 464 (Del).
“On whom burden of proof lies.—The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all
were given on either side.”
Illustration: A sues B for possession of family heirloom, which A
asserts was left by his family in the will, if no evidence is provided by
either side, B will retain the family heirloom.
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.
This section lays down the general test of the burden of proof
.Accordingly, burden of proof lies on the party whose case would fail
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if no evidence were given on either side. Actually section tries to
locate on whom burden of proof lies .Illustration shows that the
section deals with legal burden of proof. Sometimes evidence coming
from the side of the respondents, in the form of either their admissions
or conduct or failure to controvert, may strengthen or tend to support
a petitioners or plaintiffs case so much that the heavier burden of
proving a case as distinguished from the mere duty of introducing or
showing the existence of some evidence on record stated in section
102 is itself discharged. It relates to the leading of evidence and
“decides the controversy between the parties as to who is to lead
evidence first and so it is only procedural matter.” A sues В for land
of which В is in possession, and which, as A asserts, was left to A by
the will of C, B’s father. Here A must prove the will of C. If no
evidence were given on either side В would be entitled to retain his
possession of the land. [Illustration (a)].In an election petition the
petitioner failed to prove as to what proportion of the total votes cast
in favour of a wrongfully accepted candidate. The Supreme Court
rejected the election petition. When a party to a suit does not give
evidence and does not offer himself for cross-examination, a
presumption would arrive that the case set up by him is not correct.
The plea that the structures were to be excluded, the onus would be on
person alleging such exclusion. In C.P. Sreekumar (Dr) v S.
Ramanujam’ it was held that onus of proving medical negligence lies
on the complainant. Mere averment in complaint is not evidence.
Complaint has to be proved by cogent evidence. The complainant is
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obliged to provide facta probanda as well as facta probantia. In Sanjay
S. Jaipuria, Mumbai vs Department Of Income Tax on 12 April,
2012"On the facts and in the circumstances of the case and in law, the
Ld.CIT (A) has erred in deleting the additions made by A.O. on
Sundry Creditors of Rs. 2, 34,247/-, ignoring that as per section 102
of the Evidence Act, the burden of proof lies on the assessee to prove
before the A.O."
“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: A stole B’s car. B subsequently admitted the same to see.
For the Court to believe the same, A will have to provide evidence
that proves admission of theft of car committed by B.
Chirag says that at the time of his neighbor’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.
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
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takes Plea of alibi it is he who has to prove it. In Ramadhar And Anr.
vs Raj Narain And Ors. On 16 July, 1929 court held that. Under
Section 93, Evidence Act, evidence may not be produced to show
what the meaning of the parties was. The clause therefore remains
ineffectual, so far as its application to the interest is concerned. The
defendant bases his plea of limitation on this clause, alleging that
owing to a breach of the covenant for the payment of interest the
cause of action arose more than twelve years before the date of suit.
Under Section 103, Evidence Act, the burden of proof that this was a
term of the contract lay on the defendant. The defendant has failed to
discharge that burden of proof. His plea of limitation therefore fails.
The lower appellate Court has dismissed the appeal of the plaintiff on
the ground of limitation only. Accordingly the decree of the lower
appellate Court should be set aside and the appeal remanded for
disposal. In Union of India Thru General ... vs Smt. Ram Jhari Devi
and 2 Ors on 13 July, 2010 (i) a railway servant on duty: and (ii) a
person who has purchased a valid ticket for traveling, by a train
carrying passengers, on any date or a valid platform ticket and
becomes a victim of an untoward incident.) In the present case since it
is the appellant who claims defence under the exception of Section
124 A with submission with regard to existence of the related fact,
burden lies on the appellant to establish with cogent and trustworthy
evidence. Appellant had not discharged its burden under Section 103
of the Evidence Act; hence plea with regard to exception seems to be
not available. The railway act is a beneficial provision and it is settled
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law that while dealing with the beneficial provision when two views
are possible the one of which favors the beneficiary should be adopted
vide 2004 (10) SCC 201, State of West Bengal Vs. Kesoram
Industries Ltd; AIR 2000 SC 109 Mathuram Agarwal Vs. State of
M.P.; 1999 (7) SCC 106, Mysore Minerals limited M.G. Road,
Bangalore Vs. CIT Karnataka Bangalore. Thus, the burden to prove
that the accidental case falls within the exception of 124 A of the Act
rest on the shoulder of railways.
As can be seen, the Evidence Act of 1872 is a well-codified statute
that deals extensively with the issue of the burden of proof. The
current innovations in electronic evidence and burden of proof, on the
other hand, require additional clarity, particularly when it comes to
judicial interpretation.
Many cases in our criminal justice system have not resulted in a
successful conviction. The conventional approach of courts on the
notion of presumption of innocence and the obligation to show mental
aspect, according to experts, is to blame. As a result, it was
determined that trends that violate any regulation must be reversed.
However, it is critical to guarantee that these developments do not
jeopardize the Judges' integrity and reputation as unbiased officials.
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1. THE LAW OF EVIDENCE, BATUK LAL
2. THE LAW OF EVIDENCE, M.MONIR
3. THE LAW OF EVIDENE, I.H.DENIS
4. WWW.IPLEADERS.COM
5. WWW.INDIANKANOON.ORG
6. WWW.LEGALSERVICE.COM
