Burden of Proof

The expression 'burden of proof is not defined under the Indian Evidence Act, 1872. It signifies an
\obligation upon the party to prove the existence or non-existence of any fact which he asserts. If no
evidence is given by the party on whom the burden lies then the issue is settled against him. It is based
on the maxim ei incumbit qui delicit con qui negat, i.e., burden of proof lies upon who asserts and not
who denies. In Nagar Parishad, Ratnagiri v. Gangaram Narayan Ambedkar 2020: Initial burden is
always on the plaintiff to substantiate his cause with adequate pleadings and evidence. Weakness of
defence cannot be basis for grant of relief to the plaintiff and to shift the burden of proof on defendants.\
Burden of Proof (Section 104)

This is also called primary or initial burden to prove a case. Section 104 provides that whoever wants a
\ to give judgment in his favour as to any legal right or liability dependent on the existence of some
court
facts, must prove the existence of those facts. This burden to prove the entire case never shifts. In criminal
cases, it always remains upon the prosecution, and in civil cases, it is always upon the plaintiff to establish
his cause of action.
The general principle is that the party who asserts the affirmative of an issue has to prove the fact because
it is easy to prove the affirmative than to prove negative. In determining what is affirmative, the court looks
at the substance and not to the language used. In Subhra Mujherjee v. Bharat Coking Coal Ltd., AIR
2000 SC 1203 Supreme Court held that where the issue is whether the document in question was genuine,
sham or bogus, the party who alleged this fact had to prove nothing till the party relying on document
establishes the genuineness of it.
For example, A desires a court to give judgment that B shall be punished for a crime which A has
committed. A says B has committed. A must prove that B has committed the crime.
If the party wants to recover the possession of land from the occupier on the ground that he is the owner,
he must prove the ownership. [Corporation of City of Bangalore v. Zulekha Bi, (2008) 11 SCC
306]
Standard of proof in civil and criminal cases

The rule regarding initial burden of proof in civil and criminal cases is the same but there is difference
in \the standard of proof required to establish a case which is discussed as under:
In criminal cases, burden of proof is always on prosecution who shall guilt of accused beyond
reasonable doubt. This is because our criminal jurisprudence presumes a man to be innocent until his guilt is
established beyond any doubt. The burden is never on the accused to show that he has not committed the
crime. If the accused succeeds in creating any doubt or show preponderance of probability in favour, the
obligation on his part will be discharged and he would be entitled to be acquitted. [Vijayee Singh v. State of
U.P., AIR 1990 SC 1459]. In State of Mahrashtra v. Vasudev Rama Chandra, AIR 1981 SC 1186 further
held that the prosecution cannot take the benefit of evidence of accused, i.e., they have to stand on their own
legs. Guilt of accused is to be established by the prosecution on its own evidence.
In civil cases: In civil cases, the burden of proving a case is discharged by mere preponderance of
probability unlike criminal cases where case is to be proved beyond reasonable doubt. In Gulab Chand v.
Kubi Lal, AIR 1966 SC 1734, the court held that court has to strike the balance of probability. Even in a
case where a fraud is to be proved, the same standard is to be applied.
 On whom the burden of proof lies [Section 105]

\ Burden of adducing evidence is dealt under Section 105 of the Evidence Act. This section
determines on whom the burden of proof lies. According to it the burden of adducing evidence rests on
the party who would lose if no evidence is led by any of the parties.
This burden is described as 'shifting' burden. Section 105 shows that initial burden of proving a
prima facie case in his favour is cast upon the plaintiff. When he gives such evidence as will support a
prima facie case, the onus shifts on the defendant to adduce rebutting evidence to meet the case made out
by the plaintiff. As the case continues to develop, onus may shift back again to the plaintiff.
For example, if A sues B to recover damages for the breach of the contract, then A has to prove the
existence of contract and also the fact that B has broken the contract. If A is does not furnish any evidence
or is unable to prove then the case will be decided against him. Now, suppose A adduces evidence to
prove that there was a contract and B has broken the contract now the onus shifts to B. If B gives no
evidence then the case will be decided against B. Now again B pleads frustration of contract then the
burden is on B to existence of grounds of frustration. This way as the proceeding will go on the onus
under Section 102 will keep on shifting from one party to another. This principle also consolidates the fact
that the burden of proof lies on the person who affirms the fact.
 \

Ranchodbhai Somabhai v. Babubhai 1982 Guj HC

Section 116 of the Indian Evidence Act deals with the legitimacy of a child born during
wedlock. The law presumes that if a child is born during the continuance of a valid
marriage between his mother and any man, or within 280 days after its dissolution, the
mother remaining unmarried, it is conclusive proof of its legitimacy unless it can be
proved that parties to the marriage did not have access to one another. The presumption
under Section 116 is irrebuttable presumption of law which can only be rebutted if non-
access between the parties is proved. This provision is based on the maxim ‘pate rest
quem nuptioe demonstrat’ i.e. ‘he is the father whom the marriage indicates’
Object - The legal spirit behind this section seeks to establish that any child born during a valid marriage
must be legitimate. The law does not presume dishonourable or immoral actions and Section 116 was
enacted in 1872 when the condition of women was vulnerable. So, this section was an attempt to protect
her chastity and prevent branding child as bastard. It is a presumption founded upon public policy.

Proof of illegitimacy: The only manner to prove that the child is not legitimate is to prove non- access.
i.e., there was no opportunity for sexual intercourse between the spouses. The phrase 'non-access' refers
non existence of opportunity of sexual intercourse like due to physical separation, serious illness or
impotency.

In Chilkuri Venkateshwarlu v. Venkatanarayana, AIR 1954 SC 176 held that the proof of non-access
must be clear and satisfactory.

Standard of proof: In Gautam Kundu v. State of W.B., AIR 1993 SC 2295 the Supreme Court held that
standard of proof of 'beyond reasonable' doubt cannot be applied in this case. The presumption under this
section can only be displaced by a strong preponderance of evidence and not by a mere balance of
probabilities.
Relevancy and admissibility of D.N.A test:

Once the presumption is raised under Section 116, it can only be rebutted by proving non-access
between the spouses. In Gautam Kundu v. State of W.B., AIR 1993 SC 2295 the Supreme Court held
that D.N.A. tests cannot be allowed to prove illegitimacy of a child unless prima facie case is not made
in husband's favour, i.e., proves non-access.
In Sharda v. Dharampal, AIR 2003 SC 3450 Supreme Court laid down the DNA test can be ordered
only when there is a strong prima facie case and there is sufficient material before the court. If despite
the court's order respondent refuses to undergo DNA test then the court is entitled to draw an adverse
inference against him.
However, this trend changed after the decision of Supreme Court Nandlal Wasudeo Badwaick v. Lata
Nandlal Badwaik, AIR 2014 SC 932 where the court held that Section 112 of the Evidence Act was
enacted when modern scientific advancements such as DNA Test were not in contemplation of the
legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises
presumption of conclusive proof on satisfaction of the condition enumerated therein but the same is
rebuttable. The Court further held that when there is a conflict between a conclusive proof envisaged
under Section 112 and a proof based on scientific advancement accepted by the world to be correct, the
latter must prevail over the former.
Presumption as to dowry death [Section 118]

This section was inserted by Dowry Prohibition (Amendment) Act, 1986. Under this section,
when it is shown that soon before the death, the woman had been subjected to cruelty or
harassment by the accused for dowry, the court shall presume that the accused had caused the
dowry death and the burden is on the accused to rebut the presumption. It is obligatory for the
Court to raise presumption that the accused caused dowry death punishable under Section
304B of I.P.C. 1860. The following essentials must be proved by the prosecution through
evidence in order to raise presumption under Section 118 of Evidence Act:
1. The question before the court must be whether the accused had committed dowry death of a
woman.
2. The woman was subjected to cruelty or harassment.
3. Such cruelty or harassment was for or in connection with any demand
4. Such cruelty or harassment was soon before her death
Unnatural death occurring within seven years of marriage and preceded by cruelty or harassment in
connection with dowry is covered within the ambit of this section.

In Sher Singh v. State of Haryana, (2015) 3 SCC 724 Supreme Court held that in Section 118 the term
'shown' be read as 'proved'. The initial burden is on the prosecution to prove by preponderance of
probability the ingredients of Section 304B of Indian Penal Code. Prosecution is not required to prove
these ingredients beyond reasonable doubt because it will defeat the purpose of Section 304-B. Once this
initial burden is discharged by the prosecution it gets replaced by deemed presumption of guilt of the
accused. The accused has to rebut the deemed presumption by proving his innocence beyond reasonable
doubt.
In Anand Kumar v. State of M.P., (2009) 3 SCC 799 Supreme Court held that the burden to prove
innocence is more on accused under Section 118 than under Section 117
"Soon before': The prosecution is obliged to show that soon before the occurrence, there was cruelty or
harassment and only in that case presumption operates.
In Thakkan Jha v. State of Bihar, (2004) 13 SCC 348 Supreme Court held that 'soon before' does not
mean 'immediately before'. It means that there must be existence of proximate and live link between
cruelty/harassment and the impugned death. It is a relative term and depends upon facts and
circumstances of the case.
In Prem Kanwar v. State of Rajasthan, AIR 2009 SC 1242 Supreme Court held that if alleged incident
of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the
woman concerned, it would be of no consequence.
Presumption as to Abetment of Suicide by a married woman (Section 117)

Section 117 was inserted by Criminal Law (Amendment) Act, 1983. According to Section 117, when the
question is whether the commission of suicide by a woman had been abetted by her husband or any of
his relatives and it is shown that:
(a) She had committed suicide within 7 years of her marriage; and
(b) Her husband or such relatives had subject her to cruelty as defined under Section 498A of L.P.C.,
1860 which was of such a nature as was likely to drive her to commit suicide or cause danger to her life
limb or health, then the Court may presume, having regard to other circumstances, that such suicide, had
been abetted by her husband or relatives of her husband.

In order to curb the menace of dowry death and incidents related to dowry death this provision was
incorporated. The necessity of raising presumption in such type of cases arises from the fact that
independent and outside evidence is generally not available in cases of dowry death. In most cases
family members of husband do not depose against him or other family members. The effect of
presumption is that it will shift the burden of proof on the husband and his family to establish that
suicide of woman was not abetted by them.
Witness 124
In words of Bentham, witnesses are eyes and ears of justice. A witness is said to be competent when
there is nothing in law to prevent him from appearing in court and giving evidence. Section 124 of the
Indian Evidence Act, 1872 provides that all persons are competent to testify unless they are incapable o
giving evidence or understanding the questions put to them because of tender years, extreme old ag
disease or any other cause of the same kind. No person is declared incompetent to testify. It is up to the
discretion of the court to ascertain whether the witness is able to understand the questions put to him. I
determining the competency of the witness, the court has to ascertain in the best way possible whether
from the extent of his intellectual capacity and understanding, the witness is able to give a rational
account of what he has seen or heard or done on a particular occasion.

Mental incapacity: It is generally presumed that the person who is offered as a witness is presumed to be
mentally fit to adduce evidence. If it is sought to exclude the evidence of such witness on ground mental
incapacity, such incapacity must be clearly shown.
Explanation to Section 124 of the Act lays down that a lunatic is also a competent witness unless he is
prevented by his lunacy from understanding the questions put to him and giving rational answers to
them. Therefore, if the mental capacity of a person such that he is not able to give rational answers then
this evidence will be excluded.
Child witness: As already stated under Section 124, all the persons, including a child of any age, is a
competent witness if they are capable of understanding the questions put to him and giving rational
answer to them. However, in case of child witness, the court must, by preliminary examination, test the
capacity such child to understand and give rational answers and must form his opinion as to his
competency before recording his evidence. The reason is that, on account of his tender age, a child
witness is easily pliable witness who can easily be tutored either by threat or inducement. Thus, the court
must satisfy itself before relying on his evidence that he is not tutored. Privy Council in Mohamde Sugal
v. The King, AIR 1946 P 3 held that under Indian Evidence Act and Indian Oaths Act, a court can
receive evidence of person who does not understand the nature of an oath but is otherwise competent to
testify, understand the question and able to give rational answers.

Evaluation of evidence of child witness: Supreme Court in Bharvad Valu v. State of Gujarat(1971) 1
SCC (Cri) 500 held that there is a need for careful evaluation of the testimony of child witness would be
prudent to seek independent corroboration of the evidence of child witness[see also Bhagwan Singh v.
State of M.P., AIR 2003 SC 1088]. In Ratansinh Dalsukhbhai Nayak v State of Gujarat AIR 2004 SC
23 Supreme Court held that evidence of child witness is not required to be rejected per se. Thr court, as a
rule of prudence, must consider such evidence with close scrutiny
Victim of rape: Supreme Court in State of Maharashtra v. C.K. Jain, AIR 1990 SC 658 held that a
prosecutrix of a sex offence is not an accomplice. She is a competent witness and her evidence must
receive the same weight as is attached to an injured in case of any other crime.

Chance witness: If by coincidence or chance a person happened to be at the place of occurence when the
incident is taking place, he is called a chance witness. His evidence is not rejected merely on the ground
that he had no reason to be present at place of occurence.

Interested witness: An interested or a partisan witness is one who is somehow related to the victim of
crime and is interested in the conviction of the accused person. It may be a relative, friend, servant or
master Supreme Court in Raju alias Balachandran v. State of T.N., AIR 2013 SC 983 held that the
evidence of a related and interested witness having an interest in seeing the accused punished and also
having some enmity with the accused need to be examined with greater care and caution than the
evidence of other unrelated witnesses. [see also Krishna Pilllai v. State of Kerala, AIR 1981 SC 1237]
In Shyam Babu v. State of U.P., AIR 2012 SC 3311, the court further held that the testimony of an eye-
witness cannot be discarded by the court merely on the ground that he happens to be the relative or
friend of the deceased. There is no bar in law to examine family members or any other person as
witnesses If scrutiny of evidence establishes reliability evidence ought not to be rejected. Thus, in a case
where the witnesses are relatives of the deceased, their evidence will not be discarded on ground of
being an interested witness.

Decoy witness: A decoy witness is a person who entices or lures another person or thing as into danger, a
trap or a like situation. In simple words, a decoy witness is one who is used to trap accused in police
trap. The evidence of trap or decoy witness is at par with interested witness. It cannot be accepted unless
corroborated in material particular by independent evidence, both as regards the commission o offence
and the identity of the offender. The reason is that a decoy witness is interested to see that the trap laid by
him succeeds. He can thus be equated with partisan witness and it would inadmissible to rely on hi
testimony without corroboration. [Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762]
Section 125 of the Evidence Act provides that when a deaf-mute is a witness, the court will ascertain
before he is examined that he possesses a requisite amount of intelligence and that he understands the
nature of an oath.
His evidence may be taken in an open court:
(a) By written questions to which he may reply in writing, or
(b) By means of signs.
In both the above cases the evidence shall be deemed to be oral evidence. The proviso states that the
court shall take the assistance of an interpreter or special educator in recording the statement and such
statement shall be video graphed.

Parties to the suit and their husband and wife as witness: Section 126 further declares that in all civil
proceedings the parties to the suit and husband and wife of any parties to the suit shall be competent
witness. As far as criminal proceedings are concerned husband and wife are competent witnesses against
each other
 Inherent Powers of the Court (S.168, IEA)

Courts Power to Extract Best Evidence through asking questions to Party or Witnesses.

India has inquisitorial system in which the Judge not remains silent. The court has been given the power to
extract best evidence by asking questions to the parties or witnesses.
Courts Power to extract best Evidence. Justice cannot remain a silent spectator to the proceedings.

Eg. Police case diary mentions that three witnesses have been examined, but the statements of only two
witnesses are available on record and the prosecution also does not calls the third witness. If the court
finds reasonable they can call the third witness and examine him.
R/w S. 311, CrPC