Burden of Proof

OCTOBER 10, 2024

DIVYA SRIDHAR
Introduction
• Evidence is the tool by which ‘proof’ is achieved. Evidence is the means and ‘proof’ is the
result.
• Section 1 to 50 of BSA contains provisions which lay down what facts may be considered as
relevant/admissible evidence.
• The next part deals with the facts which may be proved. Section 51to 103 deals with the
mode in which those facts must be brought before the court, i.e., by oral or by documentary
evidence, according to the circumstances of the case.
• Section 104 to 169 is concerned with the production and effect of evidence i.e., with the
matter in which the proof of facts is to be tendered in court.
• The question of the manner in which the proof is to be produced is treated under the
following heads:
A) Burden of proof (S.104-120)
B) Estoppel (S. 121-123)
C) Witness (S.140-168)
D) improper admission and rejection of evidence (S.169)
“Proved”, “disproved”, “not proved” (S.2)

• Section 2 of BSA gives definitions of various words and expressions,

While dealing with the words, proved, this proved and not proved,
Section 2 lays down the standard of proof, namely about the
existence or non-existence of the circumstances from the point of view
of a prudent man.
• The term proof is not defined in BSA, but the terms proved, not
proved and disproved are defined in Section 2.
• The degree of certainty which must be arrived at before a fact is said
to be proved is described in the section.
 Proved
• A fact is said to be proved when, after considering the matters
before it, the court either believes it to exist, or considers its
existence so probably that a prudent man ought, under the
circumstances of the particular case, to act upon the
suppositions that it exists.
• The definition of proved if the embodiment of a sound rule of
common sense. It describes what degree of certainty must be
arrived at before a fact can be said to be proved.
• Proof doesn't mean proof to rigid mathematical demonstration,
because that is impossible. It means such evidence as would
induce a reasonable/prudent man to come to a conclusion.
• In human affairs everything cannot be proved with
mathematical certainty and the law does not require it. The
definition of proof centres around probability.
• The law does not demand that you should act upon certainties
alone. In our lives, in our acts, in our thoughts, we do not deal
with certainties; we ought to act upon just and reasonable
convictions founded upon just and reasonable grounds.
• All that can be done is to adduce such evidence as that the
mind of the tribunal is satisfied that the fact is so.
• In the ordinary affairs of life, courts do not require
demonstrative evidence.
• The true question in trials of facts is not whether it is
possible that the testimony may be false but
whether there is sufficient probability of its truth.
What is required is production of such materials on
which the court reasonably act to reach the
supposition that the facts exists. The word proof
seems properly to mean anything which serves,
immediately to convince the mind of the tribunal
about the truth or falsehood of a fact or
proposition.
Prudent men
• In arriving at the conclusion, the court shall not apply the high
standards of a judicial trend mind but place itself in a shoes of a
prudent man and see whether such “a prudent man caught under the
circumstances of the particular case, to act upon the supposition that
it exists”.
• At a time when the jury system was in vogue, the standard of a
prudent man was institutionalised in the form of a jury consisting of
some ordinary prudent person drone from different walks of life. The
jury was required to decide all questions of fact whereas the judge
who decides the question of law. After the abolishing of the jury
system in India, the judge is required to perform both the functions.
Matters before it

• The court has to decide whether a fact exists or not. It is

a satisfaction of the court that is determinant and can
only be arrived at after considering the matters before it.
• The court’s satisfaction relates to and founded upon the
considerations of the matters before it.
• It is significant that the BSA does not confine the matters
before the court only to ‘evidence’ admissible under the
act (s.1-50) but extent to other matters.
• The expression ‘matters before it’ includes matters which do not
fall within the definition of evidence in Section 2.
• Therefore, in determining what is evidence other than evidence
with phraseology of the act, the definition of evidence must be
read with that of ‘proved’.
• It would appear therefore that the legislature intentionally
refrained from using the word evidence in this definition, but
used instead the words ‘matters before it’. These matters would
include affidavits, admissions, confessions, courts personal visits,
demeanour of witnesses, court’s own assessment of probative
value of evidence and reliability of witnesses, etc.
• Not merely can the court base its conclusion on the effect of evidence taken
as whole but it may also draw adverse inferences against a party who being
in position to adduce better evidence deliberately abstains from doing so.
• K. Ramaraj V. State 2014 (2) MLJ (Crl.)41, it was observed that ‘the
expression ‘matters’ has wider connotation than the word ‘evidence’. This
does not mean that the court can look into anything and everything by
bringing it within the counters of the word ‘matter’. The word ‘matter’ has
been used because the court has been empowered by the BSA to raise
some presumptions as in section 119 of the act, which permits the court to
presume the existence of any fact which it thinks likely to have happened in
their relation to the fact of the particular case.
It must however be noted that while the definition of the
word ‘proved’ in Section 2 does not make any distinction
whatsoever between civil and criminal proceedings in the
matter of proof of facts by either party, the final conclusion
of the court as to whether the plaintiff in a civil case or a
prosecution in a criminal case has discharged the ‘burden
of proof’ depends on different standards of proof.
Disproved

• A fact is said to be disproved when, after considering the

matters before it, the court either believes that it does not
exist or considers it non-existence so probate that a
prudent man ought, under the circumstances of the
particular case, to act upon the suspicion that it does not
exist.
Not proved

• A fact is said not to be proved when it is neither proved

nor disproved.
• The definition of the word disproved is a converse of the
definition of the word proved. The word disproof is akin to
the word false. What is this proved is naturally said to be
false thing. A fact is disproved normally by the person who
claims that alleged fact is not true. The BSA makes a
distinction between disproved and not proved and both
are not synonyms.
• While proved shows a state of certainty in the courts mind about the existence of a fact,
disproved shows a state of certainty about the non-existence of the fact.
• The expression not grouped indicates a state of mind in between the 2, that is, when
one cannot say whether a fact is proved or disproved. It negatives both prove and
disprove.
• The expression not proved exhibits state of uncertainty where the court is not in
position to conclude, because of the inadequacy of evidence, that either a fact exist or
does not exist, and it has an open mind on the matter.
• A fact which is not proved may be false or true. A doubt lingers about its truth and
merely because it is not proved, one may not jump to a conclusion that it is disproved.
It must be noted that in civil law and in jurisprudence, there is a word of difference
between not proved and disproved while in criminal jurisprudence, there is no
distinction between these expressions namely not proved and disproved because both
would result only in one consequence, namely acquittal.
General rules of burden of proof (S. 104,
105 and 106)
• In a civil or criminal proceeding, a party invokes the jurisdiction
of the court and sets in motion the legal machinery seeking
ascertain declaration from the court as to the rights and duties
of the parties of their liabilities under the law.
• Accordingly, one party asserts that he is entitled to the right or
that the other party is subject to the duty/liability, other party
denies the existence of such facts and that he is not subject to
any liability.
• This proposition throws up a pertinent question on whom does
the burden of proof(onus probandi) lie in a legal proceeding?
• Suspicion no matter how strong/grave cannot and should not be
permitted to take the place of proof. And law requires that apart
from certain facts which need not be proved all other facts on
which a party relies must be proved, either by oral or
documentary evidence.
• Now the issue is: who should lead the evidence first? To answer
this question, one must comprehend the rules regulating the
questions upon which of the parties to the cause rests the
obligation of adducing that evidence, or as it is technically called
the burden of proof.
• This strict meaning of the term ‘onus probandi’ is
that “if no evidence is given by the party on whom
the burden is cast then the issue must be
found/settled against him”. Thus, before any
bench or jury, in order to arrive at a conclusion, a
party has to prove/establish facts which go in his
favour or deny the facts alleged by his opponent.
But the term/phrase ‘burden of proof’ fails to
convey a precise idea because the term is often
interchangeable employed in 2 entirely distinct
senses/meanings. These are
 (1) Burden of establishing a case (burden of
proof as a matter of law and pleadings)

• As commonly used burden of proof means the burden of establishing a case,

whether by a preponderance of evidence or beyond a reasonable doubt. It is a
legal burden and relates to the burden of proving all the facts and/or establishing
one’s case. Irrespective of the party’s standing, the burden rests upon the person
who substantially asserts the affirmative of an issue. The person for the rule is
that it is easy to prove the affirmative than to prove the negative.
• The burden is fixed, and it never shifts under any circumstances. Since the
burden arises from the pleadings, it depends upon the facts asserted or denied
and is determined by the rules of substantive and statutory law or by
presumptions of law and fact. Section 104 deals with a burden of proof in the
first sense of establishing the case.
 (2) Burden of proof as a matter of
introducing/adducing evidence
• Burden of proof in the sense of the burden of introducing evidence is analogous to the phrase in its sense,
but analogous only. It rests, not as before, on the one party (who urges the affirmative of the issue)
designed by the pleadings, but on the party, whether the plaintiff or defendant, against whom the
tribunal, at the time when the question is to be determined, would give its judgement, if no further
evidence being introduced.
• It is an evidential burden and relates to the burden of introducing evidence at the beginning or at any
particular stage of the case. It is not fixed and keeps vacillating throughout the trial between the
parties i.e., the plaintiff and defendant.
• The burden of adducing evidence lies at first on the party who would lose if no evidence was given by
either party. Once he discharges the burden, the onus shifts to the other party to deny the presumption of
fact established. Since their onus keeps on changing sides, the obligation of proving a case rest upon the
party who wishes to win. Section 105 and 106 deal with burden of proof in the second sense of adducing
evidence.
• The expression burden of proof had not been defined in BSA. The general rules relating to burden of
proof are set out in section 104 to106.
S. 104 Burden of proof

• The expression burden of proof has 2 aspects:

(a) that of establishing a case (a matter of law)
(b) that of introducing evidence (a matter of procedure)
This is the legal burden i.e., burden of the party to prove its case completely
to the satisfaction of the court. As a rule, legal burden lies on the party who
has set in motion the legal machinery by filing a case. In this sense, it is the
plaintiff for prosecution, as the case may be, who should prove the case. The
same rule can be expressed in another form: “you want a judgement in your
favour, so you bear the burden and prove the case”.
Legal burden is constant and never shifts from the party who seeks a
judgement in his favour on the basis of evidence he adduces.
S.104

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, and when a person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person.
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.
 Principle
• Under section 104, the first general principle is that a party who asserts the
affirmative of an issue, the burden of proof lies on him to prove that fact.
Section 104 illustrates the burden of proof in the sense of proving a case.
• It lays down that whoever wants a court to give a judgement in his favour as to
any legal right or liability depend on the existence of some facts, must prove the
existence of those facts. The burden of proving a case remains throughout the
entire case on the party on whom the pleadings originally place it.
• It never shifts; the party, whether plaintiff or defendant, who substantially asserts
the affirmative of the issue has this burden of proof.
• It is on him at the beginning of the case, it continues on him throughout the case.
 Illustrative examples

• The principle of this section is that a party who wishes the court to believe in the existence of
a fact and to pass the judgment on the basis of it should have to prove the fact.
• If for example, the question between the parties is whether a contract was made, the party
who affirms that it was made should prove the fact.
• In Subhra Mukherjee V. BCCI AIR 2000 SC 1203 Where the issue was whether the
document was genuine or sham or bogus, the party who alleged that fact had to prove nothing
till the party relying upon the document established its genuineness in the first place.
• Similarly, where a suit for possession was on the basis of certain documents, burden of
proving validity of the documents lies on the person claiming under them.
• Similarly, if a party wants to come to punish a man for theft which he is alleged to have
committed, he must prove that fact.
 S. 105 On whom burden of proof lies

• The expression burden of proof has 2 aspects:

(a) The duty to establish the truth of the claim/case by preponderance of the evidence
(legal burden).
(b) The duty of producing/introducing evidence as the case progresses (evidentiary
burden).
Section 105 talks about the latter aspect i.e., in the more limited sense of proving, not
the entire case, but a specific fact that a party alleges/pleads.
In a popular sense, this is also known as ‘evidentiary burden’ or ‘onus of proof’ or
burden of ‘evidence/procedure’ shifts, or may shift, from side to side during the
progress of the trial.
It must be noted that at the beginning of every trial/proceeding, the burden of proof and
the onus of proof as to any particular issue are generally on the same party.
• This onus of proof, i.e., burden of evidence is so continued, until the party having
the burden of proof establishes the prima facie case, nothing else will shift the
burden of evidence.
• When such a prima facie case is established, the burden of evidence is shifted to
the adverse party; the adverse party may, by the production of evidence
destroying the prima facie case against him, satisfied the burden and restore it to
the original party.
• This process continues until the stock of relevant facts is exhausted.
• As to the question, on whom the onus of proof lies, section 105 comes handy.
S.105

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.
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 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.
 Principle

• While section 104 lays down the rule “who wants to win must prove”, section 105 lays
down the role “whoever would lose must prove”.
• Section 105 provides a test regarding the question on whom does the burden of proof
lie, viz, that the burden/onus lies on the person who would fail if no evidence were
given on either side. Whenever litigation exists, somebody must go on with it; the
plaintiff is the first to begin; if he does nothing, he fails; if he makes a prima facie case
and nothing is done to answer it, the defendant fails.
• Thus, the party against whom the verdict would be given has the burden of proof.
In Anil Rishi V. Gurbaksh Singh AIR 2006 SC 1971 it was observed that if on the
pleadings, the onus is on the plaintiff and he discharges the onus and makes out a case
which entitles him to relief, the onus shifts to the defendant to prove those circumstances
which would disentitle the plaintiff to any relief.
• If A sues B to recover damage for breach of contract and its neither
party gives evidence, A would lose the case. Therefore, burden lies
upon A to prove that there was a contract between him and B which B
has broken. If B admits the contract but says that his concern was
caused by fraud and if neither party gives evidence B’s case would fail
and therefore, burden of proof lies upon B to prove the fraud.
• In order to determine on which of the 2 litigants the burden of proof
lies, the test is: “which party would be successful if no evidence at all,
or no more evidence, as the case may be, were given?”
• The best test for ascertaining on whom the burden of proof lies,
are, to consider first, which party would succeed if no
evidence were given on either side; and secondly, what would
be the effect of striking out the record the allegation to be
proved. The onus lies on whichever party that would fail, if
either of these steps were pursued.
• Thus, the rule under section 105 applies not only to the matters
which are the subject of express allegation in the pleadings
but also to those that relate merely to the admissibility of
evidence or to the construction of documents.
S.106 Burden of proving a particular fact

Section 106 shows that whoever asserts a particular fact, in

whatever form it may be (positive, negative, affirmative or
denying), must prove it unless there is a rule of law either in
BSA or in some other statute that the burden in that particular
case lies upon another person. In fact, Section 107 to 114 of
such rules where the burden of proof or of introducing
evidence about a particular fact is laid on a specified person.
S.106

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 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.
 Principle

• The principle of section is that whenever a party wishes the court to

believe and to act upon the existence of a fact, burden lies upon him
to prove that fact. The principle will not be affected by the fact
whether the particular fact in question is negative or affirmative. In
an action, for example, for damages for malicious prosecution the
plaintiff wants the court to believe upon the fact that he was
prosecuted without reasonable and probable cause, and although this
is the negative of the issue the plaintiff has to prove it.
 Distinction between section 104 and 106

• Section 106 provides for proof of some particular fact. It is an exception to the general principle
laid down in section 104. The difference between section 104 and 106 is that under section 104
the party has to prove all the facts which he alleges to entitle him to a judgement when the
burden of proof is on him.
• While section 106 provides for the proof of some one particular fact and not whole of the
facts. In a criminal case, the whole of the facts, however numerous and complicated, which go
to make the prisoner’s guilt must be proved by prosecution.
• But if the prisoner wishes to prove a particular fact, e.g., at the time of crime he was away, he
must prove it.
• In law, the particular fact where a person says to not be there at a particular place of incident, is
termed as Alibi. The law requires that a party can take a plea of alibi if he wants to make any
such advantage. Plea of alibi are taken by the accused, it is he who has to prove it. So, the
burden of proof of a particular fact is upon the party who alleges the affirmative of such facts.
Application to section 106
(i) In a case of theft or receiving stolen property, though the main burden of
proof is throughout on the prosecution, yet if the accused sets up a case
that he innocently purchased the property from the market or from a
particular person, he must prove it.
(ii) If a person claims that someone other than himself was driving the truck
at the time of the accident, the onus would shift to him after the owner of
the truck has made a reliable statement that they said person was the
driver of the truck at the time of the occurrence.
(iii) In an application for grant of maintenance by wife, wife produced
nikahnama as proof of marriage. Husband denies his signature on
nikahnama and also disputed existence of marriage itself. It was held at
the burden to prove that applicant wife was not his legally wedded wife
lies on the husband.
Burden/standard/quantum of proof in
civil and criminal cases
• The expression burden of proof is used to describe the duty which lies
on one or the other of the parties either to establish a case or to
establish their facts upon a particular issue.
• While the expression “standard/Quantum of proof” is used to describe
the degree to which the proof must be established. It is manifest that
section 104 to 106 deal with the question as to the person on whom the
burden of proof lies, and not with the extent of burden or the standard
of proof which depends upon the nature of the case.
• The bulk of BSA applies equally to criminal as well as civil
proceedings. The BSA does not make any distinction between civil
and criminal proceedings with regard to much of the procedure,
kinds of evidence, examination of witness or even with regard to
burden of proof or standard of proof.
• Though the act itself doesn't make any distinction whatsoever between
the standard of proof required in a civil and criminal proceeding, for
decades the Indian courts have been following the great English
legacy in the administration of justice with regard to standards of
proof in civil and criminal proceedings.
• While in a civil case, the scales of justice are held even
between the plaintiff and the defendant, in a criminal
case the balance tilts in favour of the accused.
• The standard of proof in a civil suit is ‘preponderance of
probabilities’ and in a criminal case is ‘proof beyond
reasonable doubt’.
• In a civil suit, there is no burden cost on any party similar to
one in criminal prosecutions which require the prosecution
in all fairness to produce evidence even against its case.
 Burden/Onus of proof in civil cases

• The plaintiff has the right to begin unless where the defended admits the fact
alleged by the plaintiff and contents that either in point of law or on some
additional facts alleged by the defendant, the plaintiff is not entitled to any part
of relief which he seeks, in which case, the defendant has the right to begin.
• The other party shall then state his case and produce his evidence, if any, and
may then address the court generally on the whole case. In a case in which the
burden of proof on all the issues lies on the party beginning, he must abuse all
the evidence in the first instance, a prima facie case, and after the case has been
shaken by the defendant’s evidence, call fresh evidence to confirm such a prima
facie case.
• Where there are several issues, the burden of proving some of which lies on the
other party, the party beginning may, at his option, either produce evidence on
those issues or reserve it by way of answer to evidence produced by the other
party. In the latter case, the party beginning may produce evidences on those
issues after the other party has produced all his evidence and the other party may
then reply specially on the evidence so produced by the party beginning. The
party beginning will then be entitled to reply generally on the whole case.
• However, where the party beginning elects, in any such case, to adduce, in the
first instance, evidence on all the issues, he will not be entitled to call fresh
evidence to rebut the evidence arduous subsequently by the opponent, on the
issues as to which the burden of proof lay upon such opponent. In other words, he
can split the case.
Standard/quantum/extent of proof in civil
cases
• Unlike in criminal cases, the balance of probabilities is the
governing standard of proof in civil litigation.
• In a civil case, the standard of proof is much lower and
traditionally the courts insist only on the preponderance of
probabilities.
• That is, in a civil case, the court will give its verdict in favour of
the party whose case appears to be more probable than that
of the other party. In a civil case, the burden of proof in the
sense of proving a case is discharged by mere preponderance
of probability. This standard of proof applies in all civil cases.
• The court has to strike the balance between probability.
• Even in a case where fraud is to be proved, the same standard
is to be applied. Thus, the standard of proof required in civil
cases is not that the plaintiff must prove a fact beyond any
shadow of doubts. But the plaintiff must establish his case and
he will not automatically succeed merely because of the
failure of the defendant to establish his case.
• In a suit for declaration of title and possession, the plaintiff has
to make out his case. He suit cannot succeed on any alleged
weakness in the title or possession of the defendants.
 Burden/onus of proof in criminal cases

• Throughout all criminal trials, the burden rests upon the prosecution to prove the guilt of the
accused or, in other words to prove each and every material element of the offense charged
beyond reasonable doubt.
• The prosecution is to prove its case and any stand taken by accused can hardly be used as
evidence unless the truth of the prosecution case is otherwise established.
• The falsity of the defence cannot establish the prosecution case.
• Generally, in summons cases, the accused is called upon in the first instance to show cause
why he should not be convicted, as is evident in section 251, CrPC.
• In trials before a court of session, the accused is asked whether he is guilty of the offence
charged or claims to be tried. Cases where the accused doesn't plead guilty or plea of guilty is
not accepted by the court as well as in warrant cases before magistrate, the prosecution has to
begin an audience its evidence.
• Under the CrPC the accused has the right to adduce evidence in his defence.
 Standard/quantum/extent of proof in
criminal cases
• In the criminal cases, it is accepted principle of criminal jurisprudence that burden of proof in
the sense of establishing a case is always on prosecution and the prosecution has to prove the
guilt of the accused beyond a reasonable doubt.
• It is no part of the duty of the accused to show as to why a false case has been foisted upon
him and why a particular witness is depositing against him.
• This conclusion is derived from fundamental principle that, the accused should be presumed to
be innocent till he is proved guilty beyond reasonable doubt and accused has got the right to
take benefit of some reasonable doubt.
• It is not the accused who has to satisfy the court that he is innocent. A person has, no doubt, a
profound right not to be convinced of a particular offense which is not established by the
evidential standard of proof beyond a reasonable doubt.
• Though this standard is higher standard, however, no absolute standard. What degree of
probability amounts to proof is an exercise particular to each case.
Regarding reasonable doubt, the Supreme Court observed that doubts
would be called reasonable if they are free from a zest of abstract
speculation. Law cannot afford any favourite other than truth. To
constitute reasonable doubt, it must be free from and over emotional
response. Doubts must be actual and substantial doubts as to the guilt of
the accused persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt is not an
imaginary, trival or a merely possible doubt; but a fair doubt based upon
reason and common sense. It must grow out of the evidence in the
case.”
• The prosecution has to establish its own case beyond reasonable doubt. The prosecution
cannot get advantage from the accused’s failure to establish his case.
• When the accused has not led any evidence in support of his version, automatically that
would not lead to the conclusion that the prosecution cases proved. The prosecution
has to stand on its own legs. It has to prove the guilt of the accused on its own
evidence. The weakness of the defence will not help the prosecution.
• If the prosecution fails to adduce the satisfactory evidence to discharge its burden, it
cannot fall back upon evidence adduced by the accused person in support of their defence
to rest its case solely thereupon.
• If the prosecution evidence as a whole is unreliable and cannot be accepted as correct for
specific reasons, the silence of the accused can be of no avail to the prosecution, for
such conduct of silence can never be permitted to become a substitute for the proof by the
prosecution. The failure to prove a defense does not amount to an admission nor does it
reserve or discharge the burden of proof.
• It must, however, be stated that it is not correct to say that the court apply the standard of
proof beyond reasonable doubt incremental cases and the test of preponderance of
probabilities in civil cases.
• Even in criminal cases, the test of proof beyond all reasonable doubt is applied only to the
prosecution and, as far as the accused is concerned, the courts apply the test of
preponderance of probabilities only.
• Suppose the accused wants to plead alibi And show that at the time of Commission of the
offense he was away at such a distant place that it was impossible for him to commit the
offence. The court would treat this plea of alibi us proved if the accused could prove what he
alleges by mere preponderance of probabilities and not by proof beyond all reasonable
doubts.
• If the accused succeeds in creating reasonable doubt or shows preponderance of probabilities
in favour of plea, the obligation on his part gets discharged and he would be entitled to be
acquitted.
Justice Malimath committee’s
recommendation
• In 2003, justice Malimath committee recommended that “the standard
of proof in criminal cases should be higher than the ‘preponderance of
probabilities’ and lower than the proof beyond reasonable doubt”. The
main reason for the recommendation was that the standard of proof
beyond all reasonable doubt has proved to be too high and rigid
resulting in high percentage of unjustified acquittals. The hybrid
standard would have created a ‘lowered proof beyond doubt’ standard
that would have eroded the sanctity of presumption of innocence.
However, this recommendation has not acted upon by the parliament.
Burden of proof V. Onus of proof (section
104 V. Section 105 and 106)
• In every legal proceeding, one party affirms/asserts that he is entitled
to a particular right or that the other side is subject toward duty or
liability, while the other party denies the existence of alleged
facts/circumstances and says that the rule of law does not apply, and
that he is not subject to any duty/liability.
• The question that now arises is: should the party asserting/affirming
the existence of facts prove their existence or should the party deny the
existence of facts prove their non-existence? In other words, on whom
does the burden of proof lie?
• As applied to judicial proceedings, the phrase, ‘burden of proof’ has 2
distinct meanings:
(a) burden of proof as a matter of law and pleading
(b) burden of proof in the sense of introducing/adducing evidence.
Section 104 deals with the burden of proof in the first sense of establishing
the case, while section 105 and 106 deal with the burden of proof in the
second sense of introducing evidence. Now this second sense of proving, not
the entire case, what is specific fact by introducing/adducing evidence is
known as ’Onus of proof’. These 2 senses though related or yet distinct.
Burden of proof
• In legal parlance, the term burden of proof is used in strict/rigid sense that it
is for the plaintiff/prosecution to prove their entire case to the
satisfaction of the judge. As a general rule, the burden of proof lies always
on a person who asserts the affirmative of an issue.
• In order to succeed, he is bound to prove the existence of the fact so
asserted. As a rule, this legal burden never shifts to the other party in civil
as well as criminal proceedings. It always remains constant. Under section
104, the burden of proof is upon the party who comes to the court to get
a decision on the existence of certain facts which he asserts.
• This legal burden is also known as ‘the ultimate burden’ or ‘the persuasive
burden’ or ‘the probative burden’.
Illustration

• This can we best understood by an illustration: A files a suit against W,

widow of B for declaration that he is the owner of all property left by
B being his adopted son; W the widow denies the factum of adoption.
In this case A desires the court to give judgment to the effect that he is
the owner of the property left by B depending on the fact that he was
adopted by B. So he must prove that he was adopted by B. In this
case the burden of proof lies on A. In this illustration the burden has
arisen, from pleading and its determined by rules of substantive law.
Onus of proof: Onus Probandi

• In legal parlance, the term onus of proof is used in the more limited
sense of introducing/adducing evidence to prove a particular fact at
different stages of the proceeding. The onus of proof i.e, the burden of
introducing (going forward with) evidence keeps on shifting during
the proceedings/trial according to the circumstances of the case and
the preponderance of evidence on one side till the court is persuaded
one way or the other. The burden of adducing evidence is described as
shifting and as such a shifting of onus is a continuous process in the
evaluation of evidence.
• The right to begin follows onus probandi. The question of
onus of proof has great force where the question is, which
party is to begin. In terms of section 105, the initial onus is
always on plaintiff and if he discharges the onus and
makes out a prima facie case which entitles him to a
relief, the onus shifts to the defendant to prove those
circumstances, if any, which would disentitle the plaintiff
to the same.
• At a given point of proceeding, one can decide the
shifting of onus between the parties.
Illustration

A files a suit on the basis of a bond. B admits the execution

of the bond but pleads that the bond was taken by
practicing fraud upon him. In this case the execution of the
bond is admitted and if no evidence is led by B on fraud, A
will get a degree, B will lose. Therefore, the burden to lead
evidence first lies on B. He will first lead evidence and then
A will produce evidence to rebut the evidence led by B.
This kind of burden of proof is sometimes termed as onus of
proof,
• Similarly in a criminal trial, the burden of proving everything essential
to establish the charge against the accused lies on the prosecution, and
that burden never shifts. But as far as onus of proof is concerned,
section 226 crpc says: “the prosecutor shall upon his case by
describing the charge brought against the accused and stating by what
evidence he proposes to prove the guilt of the accused. Once the
prosecution has satisfied the court of the fact that the accused
committed the crime of which he is charged, the onus shifts to the
accused to show as to why he should not be punished for it. Thus,
evidential onus keeps shifting during the course of proceedings.
• The terms burden of proof and onus probandi are sometimes confused.
Where issues have been framed and the preliminary examination on
the parties has taken place, the case rests at a certain point at which if
no further evidence is led one party has to lose.
• On that party is the onus probandi sometimes called ‘right to
begin’. Where, however, all evidence on both sides has been recorded,
the second stage is reached and this is where the point of view of judge
comes in and it is necessary to find where is the burden of proof. To
determine this, it is necessary to ascertain with precision upon what
proposition of fact or law the parties were at variance.
• The question of onus of proof arises only where there is a question of fact
to be determined and there is no evidence, one way or the other, which
will enable the judge to come to a conclusion. In such a case, the court has
to decide whether the onus of proving the fact lies upon the plaintiff or the
defendant.
• If the onus of proof lies upon the plaintiff and the proof of that fact is
essential to his case, then the plaintiff must fail because he has not
discharged the onus which lay upon him.
• On the other hand, if the onus of proving the fact was upon the defendant
and its proof is essential to the defendant’s success in this case, then they
defendant must fail because he has failed to discharge the burden which
lay upon him.
 Specific rules of burden of proof (S.107-
114)
• Section 107 to 114 specially denotes the burden of proving certain facts on particular persons.
• Section 107 deals with the burden of proving any fact necessary to be proved to make evidence admissible.
• Section 108 deals with the burden of proving a fact that in a criminal case, the case of the accused comes with
one or other of the exceptions as to the liability.
• Section 109 deals with the burden of proving a fact within the special knowledge of a particular person.
• Section110 and 111 deal with the burden of proving the death of a person and proving that a person was alive,
insert in circumstances.
• Section 112 deals with the burden of proof as to the discontinuance of relationship in the cases of partners,
landlords and tenant and principal and agent.
• Section113 deals with the presumption as too the ownership drawn from the possession and the corresponding
burden of proof.
• Section 114 deals with the burden of proving good faith in transaction where one party is in relation of active
confidence towards the other.
S.107 Burden of proving fact to be proved
to make evidence advisable
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.
 Principle, object and scope
• The relevancy or admissibility of a fact depends upon the proof of some other fact, the burden of proving the latter
fact is on the party wishing to give evidence of the former fact.
• In other words, where the admissibility of one fact depends upon the proof of another fact, the party who wants to
prove it will have to prove the fact on which admissibility depends.
• Thus, the burden of proof in the sense of adducing evidence applies not only to matters which are subject of
express allegation in the pleading, but also to those that relate merely to the admissibility of evidence or to the
construction of the documents.
• Therefore, a party desiring to adduce hearsay evidence must first establish the conditions necessary to its
reception.
• Similarly, if a party wants to offer the secondary evidence of a document, he must prove that the original has been
lost or destroyed or that the case is within any of the exceptions in which secondary evidence can be given.
• The reason and logic in the condition laid down in section 107 is that the prosecutor/plaintiff has to discharge its
onus of proving the case against the accused/defendant beyond reasonable doubt.
• And the law does not recognise the principle of giving the benefit of doubt to a party on whom the burden of
proof lies.
S. 108 Burden of proving exception in
criminal cases
• Section 108 which applies only to criminal proceedings, is an important
qualification of the general rule that in a criminal trial the burden of proving
everything essential to establishment of the charge against the accused lies
on the prosecution.
• In criminal cases the burden of proof is always upon the prosecution
and never shifts, whatever the evidence may be, during the progress of the
case.
• Under section 108 the burden lies on the accused.
• Section 108 is an application perhaps an extension of the principal laid
down in section 106 that the burden of proving a particular fact shall be on
that person who wishes the court to believe in its existence.
 S.108
• 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 Bharatiya
Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other
part of the said Sanhita, 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 117 of the Bharatiya Nyaya Sanhita, 2023 provides that whoever, except in the
case provided for by sub-section (2) of section 122, voluntarily causes grievous hurt, shall be
subject to certain punishments. A is charged with voluntarily causing grievous hurt under
section 117. The burden of proving the circumstances bringing the case under sub-section
(2) of section 122 lies on A.
 General rule: presumption of innocence

• 3 cardinal principles of criminal jurisprudence are well settled namely,

(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt, and it cannot
derive any benefit from weakness or falsity of the defence version while proving its case
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty
(3) that the onus of the prosecution never shifts.
Thus, every person accused of a crime is always presumed to be innocent, so that the burden live upon the
prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is
charged are made out.
Thus, the prosecution has to prove every ingredient in the crime. The Supreme Court recognises that a person
who has profound right not to be convicted of an offense which is not established by the evidential standard of
proof beyond reasonable doubt. Though this standard is a higher standard, there is no absolute standard. What
degree of probability amounts to proof is an exercise peculiar to each case
 Burden of proving defence/ exceptions

• Once the prosecution has proved beyond a reasonable doubt that they accused is guilty
and accused pleads any defence/exception, the burden of proving that the fact lies on
him.
• Section 108 provides that if the accused claims that his case comes within any of the
recognised exceptions, the burden of proving that lies on him.
• The effect of this section is that where a fact is specially within the knowledge of the
accused, he must prove the facts.
• The court is bound to presume the absence of circumstances which bring the case
of the accused within that exception or proviso, and consequently the burden of
proving the exception or the proviso is on the accused person.
• The meaning of this section is that it is not for the prosecution to examine all possible
defences which might be put forward on behalf of the accused person and to prove that
none of them applies.
Section 108 contains 2 kinds of burden on the accused who
sets up the exception
(i) the onus of proving the existence of circumstances
bringing the case within any of the general or special
exceptions in the IPC or in any other law
(ii) the burden of introducing or showing evidence, which
results from the last part of the provision which says that
the court shall presume the absence of such
circumstances.
 Standard of proof of the exception
pleaded
• Now, the issue is better the nature and extent of the onus of proof placed on an accused
who claims the benefit of an exception, is exactly the same as the nature and extent of
bonus as placed on prosecution in a criminal case.
• Thus, the onus of proof by the accused is not exactly the same as that of the
prosecution.
• An accused is not required to adduce leading evidence to prove his case beyond
reasonable doubt.
• Although section 108 does not at all indicate the nature and standard of proof required
but the BSA does not contemplate that the accused should prove his case with the same
strictness and vigour as the prosecution is required to prove in a criminal charge.
• The law requires that the onus of proof placed on the accused claiming the benefit of
exception must be tested by the standard of preponderance of probabilities
S. 109 Burden of proving fact especially
within knowledge
• In many special relations, the burden of showing the truth of
the matter is shifted to the party who is better likely to know the
reality. Section 109 is designed to meet certain exceptional
cases, in which, it would be impossible for the
plaintiff/prosecution to establish certain facts which are
particularly within the knowledge of the defendant/accused.
• 109 lays down that were the subject matter of the allegation
lies peculiarly within the knowledge of one party, the party
must prove it, whether it may be affirmative or negative
character.
S.109

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.
 Principle and scope
• The true object to be achieved by a Court of Justice can only be furthered
with properly buy the testimony of the party who personally knowing the
whole circumstances of the case can dispel the suspense attached to it.
• Where the knowledge of the subject matter of an allegation is peculiarly
within the province of one party to a suit, the burden of proof must lie there
also.
• The principle underlying section 109, which is an exception to the general
rule (section 104) governing burden of proof within the knowledge of the
defendant.
• It cannot apply when the fact is such as to be capable of being known
also by persons other than the defendant. Section 109 applies only to
parties to a suit.
Application of section 109 to criminal
cases
• Section 109 is only an exception to section 104 which lays down the general
rule that the burden is on the prosecution to prove that the accused has
committed the offence with which he is charged. Neither section 106 nor
section 109 absorbed the prosecution from the duty of discharging its
general or primary burden of proving the prosecution case beyond
reasonable doubt.
• Section 109 cannot be used to undermine. The well-established rule of
law that save in a very exceptional class of cases, the burden is on the
prosecution and never shifts.
• Section 109 is not intended to relieve the prosecution of his primary burden.
• On the contrary, section 109 is designed only to meet certain exceptional circumstances
in which it would be impossible or at any rate disproportionately difficult, for the
prosecution to establish facts which are especially/particularly within the knowledge of
the accused and which he could prove without difficulty or inconvenience.
• The word especially means that the burden shifts and falls on the accused only when
the fact in issue is pre-eminently or exceptionally within his knowledge.
• Where, however, knowledge of certain facts is as much available to the prosecution,
should it choose to exercise due diligence, as to the accused, the facts cannot be set to
be especially within the knowledge of the accused. Section 109 would apply only to
cases where the prosecution has succeeded in proving the facts from which a
reasonable inference can be drawn regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge regarding such facts, failed to offer
any explanation which might drive the court to draw a different inference.
• Only when the prosecution case has been proved, the burden
in regard to such facts which was within the special
knowledge of the accused may be shifted to the accused for
explaining the same. In a criminal case, even where the facts
lie peculiarly within the knowledge of the accused, the
burden of proof lies on the prosecution though very slight
evidence may be sufficient to discharge the burden.
• If facts within the special knowledge of the accused are not
satisfactorily explained by the accused, it would be a factor against
him, do by itself it would not be conclusive about his guilt
• It would be relevant while considering the totality of the circumstantial
evidence. It is the boundary duty of a party, personally knowing the
whole circumstances of the case, to give evidence on his own behalf
and to submit to cross examination. His non-appearance as a witness
would be the strongest possible circumstance bowing to discredit the
truth of his case.
Phula Singh V. State of HP (2014) 4 SCC 9

The court held that “the accused has a duty to furnish an explanation in
his statement under section 313 CrPC, regarding any incriminating
material that has been produced against him. If the accused has been
given the freedom to remain silent during the investigation as well as
before the court, then the accused may choose to maintain silence or
even remain in complete denial when his statement under section 313 is
being recorded. However, in such an event, the court would be entitled
to draw an inference, including such adverse inference against the
accused, as may be permissible in accordance with law.
S.110 and 111 Proof of death and
survivorship
• Section 110 and 111 deal with burden of proving the death of a person
and proving that a person was alive, inserting circumstances. Section
110 and 111 must be read together since the latter is only a proviso to
the former and both constitute one rule when read together. Section
110 deals with a presumption of continuance of life, while section 111
lays down a contrary principle.
110. Burden of proving death of person known to have been alive within
thirty years.
When the question is whether a man is alive or dead, and it is shown
that he was alive within thirty years, the burden of proving that he is
dead is on the person who affirms it.
111. Burden of proving that person is alive who has not been heard of for
seven years.
When 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.
• There is a general presumption of continuity of things. Section 110 is almost
similar to section 117 which refers to a presumption of existence of a state of
things. Once a thing is shown to exist, the law presumes that it continues to exist
until the contrary is shown. This applies to continuity of life also. Section 110
accordingly provides that when a person is shown to have existed within the last
30 years, the presumption is that he is still alive and if anybody alleges that he is
dead, he must prove that fact.
• Section 110 has the effect of shifting the burden of proving that the person is
dead on him who asserts the fact of death. Section 110 presumes continuity of
life. This presumption is, however, not a very strong one. It may not only be
reverted by a slight evidence to the contrary, for example, 7 years absence
(section 111), but the court may not act upon it until positive proof of his being
alive is offered.
• Section 111 materially qualifies the operation and effect of the
presumption raised by section 110. The essence of the section is that if
a person is not heard of for 7 years, The presumption is that he has
died (the presumption raised under section 110 ceases to operate) and
if anybody alleges that he is still alive he must prove that fact.
• Section 111 subject to its applicability being attracted, has the effect of
shifting the burden of proof back on the one who asserts the fact of
that person being alive. Thus, 7 years absence creates rebuttable
presumption of death. To a case where section 111 is attracted, Section
110 does not apply
S.112 Burden of proof as to certain kind of
relationship
• Section 112 lays down the principle dealing with the presumption of the
continuity of relationship between persons or state of things.
• A partnership, a tenancy or an agency once shown to exist is presumed to
continue till it is proved to have been dissolved or terminated.
• The onus of proving that the relation has since ceased to exist on the party
who alleges that it is so.
S.112 reads: “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.”
• When the existence of any relationship between the persons or state of
things is shown, section 112 enables to draw presumption that such
relationship or state of things continues to exist till the contrary is proved.
• The presumption under section 112 applies to the following 3 kinds of
relationships:
(i) Partnership
(ii) principal and agent
(iii) landlord and tenant.
Cases other than these 3 mentioned in the section 112 are covered by the
general presumptions under section 117 of the BSA. While the presumption
under this section is mandatory but rebuttable, the presumption under section
117 is optional
 S.113 Burden of proof as to ownership

• Possession amounts to 9 points in law. It is prima facie proof of ownership; it is so because

it is the sum of acts of ownership. Section 113 deals with the presumption as to the
ownership drawn from the possession and corresponding burden of proof.
• Section 113 reads: “When the question is whether any person is owner of anything of
which he is shown to be in possession, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner.”
• This section gives effect to the principle that possession is prima facie evidence of
complete title; anyone who intends to oust the processor must establish a right to do so.
This is to be presumed from lawful possession until the want of title or a better title is
proved.
• The principle of the section does not apply where the possession has been obtained by
fraud or force.
• The term possession in this section is to be understood as opposed to juridicial position and
to denote actual possession.
Longer the possession, stronger the presumption. Where no actual proof of title is
forthcoming, the matter is one of presumption based upon the policy of law.
The longer the period within which and the remoter the time went first a grant might be
reasonably supposed to have occurred, the less force there is in an objection that the ground
could not have been lawful.
Possession has a twofold value.
It is evidence of ownership and is itself the foundation of a right to possession. To recover
possession, a plaintiff must show a better right in himself to possession than is in the defendant.
He may, within the limitation period, Succeed in a case where he is dispossessed, either by
establishing title or by showing a prior legal possession entitling him to be restored to the same.
A person in possession of land without title has an interest in the property which is heritable and
good against all the world except the true owner, an interest which unless and until the true
owner interferes, is capable of being disposed of by deed or will, or by execution sale, just in
some way as it could be dealt with if the title where unimpeachable.
S.114 Proof of good faith

• When the parties to a case are so related that one of

them occupies the position of active confidence the law
requires that the party enjoying confidence must act in
good faith towards the other and the burden lies upon
him to prove that he did act in good faith.
S.114 reads: “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.”
• In the ordinary course of life, fairness and honesty are presumed in
respect of any transaction; and if a person wants to prove that any
transaction has been created dishonestly and with bad faith, it is for him to
prove it to be so. But the state of affairs will be otherwise if one of the
parties to the transaction stands in relation of active confidence and relation
to the other.
• In such cases, it is the bonafide of a transaction is questioned then it shall be
looked with suspicious eyes and the transaction will not be presumed to be
taken in good faith.
• There shall be a presumption of absence of good faith in those cases, and
the burden of proving the good faith of the transaction is on the party who is
in the position of active confidence.
Thank you

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