A STUDY ON BURDEN OF PROOF

1
R.Srimukundan, 2K.Roja
1
B.com llb (Hons), Saveetha School Of Law, Saveetha University, Saveetha institute of medical
and technical sciences, Chennai, Tamilnadu, India
2
Assistant Professor, Saveetha School Of Law , Saveetha University, Saveetha institute of
medical and technical sciences, Chennai, Tamilnadu, India
1
spideyben89@gmail.com, 2rojak.ssl@saveetha.com

ABSTRACT
Indian Evidence Act was established in the year 1872. This Act had been
divided as three parts, eleven Chapters and 167 Sections. Indian Evidence Act spread
all over India except Jammu and Kashmir. In 1984 pakistan repealed it as ‗Quanun
e Shadat‘. Evidence Act - provision are kindly divided as Taking the evidence and
evaluation1. Every piece of thing is said to be evidence. Even your chewing gum is
an evidence to find out where you are and health condition. Some important to be
noted in evidence are - Crossing the limit under circumstance helps to clear the
evidence, Convincing helps to clear the evidence,Cause must be reasonable, Belief
must be reasonable, Indicating and suspicion must be real and causable,Credible
evidence which is worth and belief, Substantial evidence ( by referring to richardson
v Perales (1971) we can understand about substantial evidence).

KEYWORDS: Indian Evidence Act, Quanun e Shadat, Taking the Evidence,

Evaluation, Reasonable, Indication, Suspicion, Credible Evidence, Substantial
Evidence.
AIM
To Study on the burden of proof rules and its essentials.
To Study the sections relating to Burden of Proof under IEA 1872

1
(Kaplow 2011)
RESEARCH METHODOLOGY
In this paper the researcher has opted for Doctrinal Research Methodology

SOURCES
Sources are collected mainly through Secondary Data.

In chapter 1 it start with small intro on Burden of Proof with

example. Also Why we need Burden of Proof is also added in this
chapter 1.
INTRODUCTION
For every incident there must be a thing to be proved which had already
happened or may not be happened too. So proving an incident is said to be an
evidence. If the evidence has not been shown or otherwise evidence is shown but not
proved then the happened incident will lead to unhappened incident2. For Example:
‗A‘ is a person who is driving a car on highway from Chennai to Bangalore. He was
driving his car at speed at 50. On opposite side a lorry driver ‗B‘ had lost his control
in driving the lorry due to brake failure and dashed the A‘s car nicely. Due to fear
driver came out of the vehicle and ran away. ‗A‘ was severely hurt and was fainted
in car itself. He was taken to the nearby hospital by the public. After some days he
was cured little. When he woke up he remembered last about the accident which had
happened to him. Police were came in to his ward where he was admitted. He
narrated the incident how it had happened. Police noted all and filed an FIR. Here
how will the victim will prove the Incident that had happened. Now the only way to
prove the incident is Evidence and also burden lies on the victim to prove the
evidence is said to be Burden of Proof.
Why we need Burden of Proof ?
Normally Burden of Proof lies on the affected party 3 i.e Appellant because evidence
given by affected party is one will be most of the time are true which are believed
by the court too. When

2
(McBaine 1944)
3
(Picinali 2014)
accuse is asked to prove he will easily escape by making a fake evidence. So we need
Burden of Proof to prove the person has done guilty4.

In Chapter 2 says about the rules along with examples and some case studies
are attached too.
Let‘s move on to the Burden of Proof under Indian Evidence Act 1872.
As a legal person we must not only know about Burden of Proof, also must know
about the surroundings of Burden of Proof i.e legal in Burden of Proof.

Section 101 to section 114 A under the Indian Evidence Act 1872
Sec 101– Burden of proof
Sec 102–On whom burden of proof lies
Sec 103–Burden of proof as to particular fact
Sec 104–Burden of proving fact to be proved to make evidence
admissible Sec 105–Burden of proving that case of accused
comes within exceptions Sec 106–Burden of proving fact
especially within knowledge
Sec 107–Burden of proving death of person known to have been alive within
thirty years Sec 108–Burden of proving that person is alive who has not been
heard of for seven years
Sec 109–Burden of proof as to relationship in the cases of partners, landlord
and tenant, principal and agent
Sec 110–Burden of proof as to ownership
Sec 111–Proof of good faith in transactions where one party is in relation of
active confidence
Sec 112–Birth during marriage, conclusive proof of
legitimacy Sec 113–Proof of cession of territory
Sec 113 A—Presumption as to abatement of
suicide Sec 113 B—Presumption as to dowry
death
Sec 114–Court may presume existence of certain facts
Sec 114 A—Presumption as to absence of consent in certain prosecutions for rape
4
(Hay and Spier 1997)
 SEC 101 - BURDEN OF PROOF
In Section 101 says that if a person who makes an allegation on opposite party in
front of the court, that person must prove that his allegation was true which is
said to be Burden of Proof. For Example
A and B are Appellant and Respondent. In court A says thats B has committed a
crime yesterday. Here A must prove that B has committed a crime.
In Jarnail Case (1996) Burden of proof lies upon the person who has raised
allegation on opposite party who is said to be Accused5. The Person must prove
that the opposite arty has done guilty. If Burden of proof lacks or not proved,
there are chances of dismissal of the case.

SEC 102 - ON WHOM THE BURDEN OF PROOF LIES

In Section 102 says that if a person who raised allegation has not yet submitted
any Proof then there are chances of opportunity for opposite party to win the case
and party who had raised allegation will therefore fails6.
For Example:
A and B had made an agreement that A had given Rs. 15,000 as debt B and B
must pay the Debt back to A within 3 months. After 3 Months B denies and he
says that this agreement is fake. Here B must prove that this is fake, If B fails to
prove that this is fake then A wins.
In Triro case (1993) the person had delayed in filing the suit must prove for
delay in filing the suit.
SEC - 103 BURDEN OF PROOF AS PARTICULAR TO FACT
In Section 103 says that when Burden of Proof lies on a particular fact which
relate to that main person he must prove the fact whether it is true or not.

5
(Hay and Spier 1997; Sim 2003)
6
(Jordash and Van Tuyl 2010; Weinstein and Dewsbury 2007)
 For Example:
A and B are two parties are appellant and respondent. A says 3 days before B had
killed C near Public Garden at night. But B says that he was not there at
particular incident and he was in Kanniyakumari not in Chennai. Here A must
prove C was killed by B and B must prove that he was in Kanniyakumari not in
chennai at that time of this incident.
Note: The principle of Section 103 is said to be Rule of Convenience7.

SEC - 104 BURDEN OF PROVING FACT TO BE PROVED TO MAKE

EVIDENCE ADMISSIBLE
In Section 104 says that In Burden of Proof rises in facts then it must be proved
who is related to the Fact
For Example:
A is ready to help B in recording dying declaration. A must prove B‘s death. In
recording B says about the important file and also tells about the hidden place
where he kept the Secret file. Now A must prove the file is hidden at that
particular place .

SEC 105 - BURDEN OF PROVING THAT CASE OF ACCUSED COMES

WITHIN EXCEPTIONS
Section 105 says that If the Burden of Proof lies on the side of Accuse and if the
accuse brings to general exceptions he must mst prove it.
For Example:
A was walking on the road at night. While walking suddenly he saw an unknown
man B was trying to hit him. Due to fear of life A pushed B forcely down. As A
pushed B, B lost his balance and falled down and his head was hit by a stone
harshly. At that moment itself B dies. Here A must prove that due to defence he
pushed down B unfortunately it lead to Death8.

7
(Jordash and Van Tuyl 2010)
8
(Le Moli et al. 2017)
 SEC 106 - BURDEN OF PROVING FACT ESPECIALLY WITHIN KNOWLEDGE
In Section 106 says that If the person‘s knowledge fact has happened then the
burden of proving the fact is upon the person.
For Example:
A Person is travelling in a Bus from koyambedu to Guindy and got the ticket too
but he lost the ticket. While travelling ticket checker came to check the tickets of
passengers. Here the person who lost the ticket must prove that though he
brought the ticket he lost it.
In Eshwari case (1994) A man and women was hiding under the bedroom of a
person who is dead with grievous injuries. Here Burden of Proof lies on both men
and women that why where they hiding under the bed and also how did that
person (deceased) died with so much injuries on bed.

SEC 107 - BURDEN OF PROVING DEATH OF PERSON KNOWN TO

HAVE BEEN ALIVE WITHIN THIRTY YEARS9
In Section 107 say that A question rise whether a person who is alive or dead but
if it is found that he is alive within Thirty years, burden of proof comes into
form that person is dead must be proved.
For Example
A and B are Husband and wife. A use to go to work and come back home around
9:00p.m. But this time husband did not came. Wife slowly fears about the
absence of her husband. She tried husband‘s number so many times but she did
not got any response. One morning she went to the place of husband where he is
working. HOD said already her husband went out at normal time. She called to
husband‘s parents, friends and relatives. They said no her husband did not came
their. She went to nearby Police station and filed a missing complaint of her
husband. Twenty years passed and still B cant find her husband. She lost her
hope. Here Burden of proof rises and she must prove before the court that her
husband still not found and she cant predict that her husband is alive or not10.

9
(Le Moli et al. 2017; Haynes 2013)
10
(Taylor et al. 2011)
 SEC 108 - BURDEN OF PROVING THAT PERSON IS ALIVE WHO
HAS NOT BEEN HEARD OF FOR SEVEN YEARS
In this Section 108 it says that A person who is not been heard for seven years
(i.e) no clue about that person but proving that particular person is alive, where
the Burden of Proof lies for that person who says Alive.
For Example:
A is a person who is walking on the road. He sees all poster which posted on the
wall. Suddenly he stops and sees a poster for two minutes. In that 2nd death
anniversary was written. He runs to particular house where it belongs to the
person who is said to be dead. In that house they were the parents of deceased
person. A says to the deceased‘s family that their son is alive. Family did not
believe, asked him to appear before police station and tell to the officer about
their son. Here Burden of proof lies on A that must prove that the son is alive.

SEC 109 - BURDEN OF PROOF AS TO RELATIONSHIP IN THE CASES

OF PARTNERS, LANDLORD AND TENANT, PRINCIPAL AND AGENT11
In Section 109 say about that when question rise that a person as Partners/
Landlord and Tenant/ Principal and Agent as acting where the Burden of Proof does
not stand.

SEC - 110 BURDEN OF PROOF AS TO OWNERSHIP

In Section 110 say about that when question rise that any person who is owner of
anything , to be possession, here Burden of Proof is not the owner.

SEC 111 - PROOF OF GOOD FAITH IN TRANSACTIONS WHERE ONE

PARTY IS IN RELATION OF ACTIVE CONFIDENCE12
In Section 111 says that when question rise that good faith of transactions
between parties,One is with full confidence must Burden of Proving the good
faith of any transaction. For Example

11
(Pignotti 2005)
12
(Chambers 1953)
 The good faith of a sale by client to attorney, here attorney has burden of proving
the good faith of any transaction.
The good faith of a sale by son to father , here father has burden of proving the
good faith of any transaction.

SEC 112 - BIRTH DURING MARRIAGE, CONCLUSIVE PROOF

OF LEGITIMACY
In Section 112 says that when a married men and women gets a new born child
within 280 day (during marriage) after legitimate when mother not get remarried
then the child is said to be legitimate13.
Smt Dukhtar case (1987)
In this case the court held that husband is not the father of the child and the child
is said to be illegitimate. So, husband need not give any evidence to his ex - wife.

SEC 113 - PROOF OF CESSION OF TERRITORY

For Example :
A territory given to Sri Lanka - official Gazette.

SEC 113 A - PRESUMPTION AS TO ABATEMENT OF SUICIDE

In this Section 113 A three facts are to be known for Abetment of Suicide
by women. Abetting women to commit suicide by her husband or her
husband‘s relative.
Suicide must have happened within seven years from the date of the
marriage. Cruelty must have been present due to her husband or her
husband‘s relative. Above three can prove that women has been
abetted to commit suicide.
Note: Cruelty can be referred from 498-A of IPC 1860.

13
(Chambers 1953; Nandrajog 2014)
 SEC 113 B - PRESUMPTION AS TO DOWRY DEATH14
In Section 113 B say that A person who has committed Dowry death to women
by cruelty or torture or harassment for getting dowry. Most of the time in Dowry
death Husband or his relatives involve.
Note : Dowry Death are referred in detail from Section 304-B of IPC 1860.

SEC 114 - COURT MAY PRESUME EXISTENCE OF CERTAIN FACTS15

In Section 114 says that the court will presume the facts of happening of the
event due to natural cause or human conduct or public business or private
business, here it must be similar to particular facts.
For Example:
On Rainy season there was a huge flood were small children found to be dead.

SEC 114 A - PRESUMPTION AS TO ABSENCE OF CONSENT IN

CERTAIN PROSECUTIONS FOR RAPE
In Section 114A says that without consent of women and with force a person
having sexual intercourse with her is said to rape. Here court takes the point
‗without consent‘.
Note : Rape and its punishments are studied from Section 375 and Section 376 of IPC 1860.
Nawab Khan 1990
In this case without consent of women accused had sexual intercourse with that
women and committed Rape but Accused raises that with consent only he had
sexual intercourse with that women. Court said that the Accused must prove that
he had sexual intercourse with consent16.
CHAPTER 3
In this chapter we are going to have a difference on Burden of Proof and
Onus of Proof. Normally we use to get confusion on Burden of Proof and
Onus of proof. For clearing your confusion here is the difference of Burden
of Proof and Onus of Proof along with example and a case.
14
(Chambers 1953; Nandrajog 2014; Dare and Kingsbury 2008)
15
(Wiley: The Human Cause of Climate Cha...)
16
(Tikriti )
 DIFFERENCE BETWEEN BURDEN AND ONUS OF PROOF

BURDEN OF PROOF17 ONUS OF PROOF

A Person who raises allegations have Proving evidence may vary to either
burden to prove. side of the parties.

If the person not produces proper If the person not produces proper
evidence then there are chances of evidence then the chance will go to
dismissal or victory goes to defendant. opposite party to prove.

Chance given mostly to the person Chance given to either party what
who had raised allegations. court feels.

For Example For Example

A says B has committed crime A say he heard gunshot yesterday near
yesterday. Here A must prove that B Garden. C say he did not hear gunshot.
has committed crime. As court has not satisfied it asks them
to produce evidence. After referring to
evidence to A then the court refer
evidence of C.
In this example we can understand
were both parties given a chance to
produce an evidence.

Addagada Ragavamma & Anr case (1963)

It is a Supreme Court case and court held that Distinction between burden and
onus of proof where burden is a person alone proves otherside onus is either side
of the party given chance to produce the evidence18.

17
(Mohamed Naim et al. 2016)
18
(Zirkel )
 Lets have some recap on Burden of Proof . They are - Meaning , why we
need, rules to be followed, difference between burden of proof and onus of
proof. Now continue this last chapter by conclusion and suggestion.

CONCLUSION AND SUGGESTION19

Atlast we come to end of research on Burden of Proof. From this we can
understand how evidence is so much important for a case. Finding out the hidden
answers is hectic for judge, lawyers and officers. Offenders will always have a
plan to escape after committing a crime but evidence is the only trap for
capturing the offender. My suggestion is that though evidence has too helpful
evidence must be developed well more. This generation itself we can find how
evidence are created fraudly for escaping from the crime. Need more technology
for evidence is must so Evil guys won‘t escape from truth and Justice. Sometimes
plaintiff otherwise as Appellant when he feels he is going to lose he too find way
to escape to win the case. Though we referred to rules and exceptions still need
more updation for evidence. As new crimes enters we too need to find new to
type of evidence to make hold of the evil guy. Without evidence there are no
chance to find out the criminal. Each an every part of a thing is an evidence to
find out the criminal20.

REFERENCE
1) Burden of Proof by Louis Kaplow.
2) Burden of Proof : Degrees of Belief by J.P.Mc Baine.
3) Innocence & Burdens of proof by Federico Dicinali.
4) Burden of Proof in Civil Litigation : An Economic Perspective .
5) Burden of Proof in undue influence common law and codes on collision cause.
6) Failure to carry the Burden of Proof.
7) Comment on the meaning of proof beyond a reasonable doubt.
8) Whether the proof ? The progressive of Burden of Proof in Environment.
9) The Burden of proof in market

19
(Zakeri et al. 2017)
20
([PDF]NEW ISSUES IN REFUGEE RESEARCH E...)
10) Meeting the Burden of Proof
11) Callahan fails to meet the burden of proof
12) Burden of proof in labor Arbitrations
13) Private Defence: A look at Definitional Aspects and Burden of Proof
14) Putting the Burden of proof in its Place
15) The Human Cause of Climate change
16) New issues in refugee research
17) Who has the burden of persuasion in impartial headings
18) The Burden of Proof: The current State of a trial
19) Evidence you need to bring defamation lawsuit
20) Shariah appraisal on the issue of imposing burden of proof
21) Dr.Lakshmi T and Rajeshkumar S ―In Vitro Evaluation of
Anticariogenic Activity of Acacia Catechu against Selected Microbes‖,
International Research Journal of Multidisciplinary Science & Technology,
Volume No. 3 , Issue No. 3, P.No 20-25, March 2018.
22) Trishala A , Lakshmi T and Rajeshkumar S,― Physicochemical profile of
Acacia catechu bark extract –An In vitro study‖, International Research
Journal of Multidisciplinary Science & Technology, Volume No. 3 , Issue No.
4, P.No 26-30, April 2018.