0% found this document useful (0 votes)
20 views55 pages

Lecture-Burden of Proof

The document outlines the principles of 'Burden of Proof' as defined in the Indian Evidence Act, 1872, particularly focusing on Sections 101 to 114A. It explains that the burden lies on the party who asserts the existence of facts and must establish a prima facie case, with the initial burden typically resting on the plaintiff. Additionally, it distinguishes between the legal burden and the evidential burden, emphasizing that the burden may shift during the trial based on the evidence presented.

Uploaded by

Aryan Asthana
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
0% found this document useful (0 votes)
20 views55 pages

Lecture-Burden of Proof

The document outlines the principles of 'Burden of Proof' as defined in the Indian Evidence Act, 1872, particularly focusing on Sections 101 to 114A. It explains that the burden lies on the party who asserts the existence of facts and must establish a prima facie case, with the initial burden typically resting on the plaintiff. Additionally, it distinguishes between the legal burden and the evidential burden, emphasizing that the burden may shift during the trial based on the evidence presented.

Uploaded by

Aryan Asthana
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 55

BURDEN OF PROOF

UNDER
INDIAN EVIDENCE ACT, 1872

Part III of the Evidence Act, 1872 deals with Production and Effect of Evidence.

Chapter VII, Section 101 to 114A deal with “BURDEN OF PROOF”.

When a party approaches an advocate to file a suit or initiate any legal proceedings, the first thing which the

advocate must ascertain is on whom the burden to prove the facts lie –

1) What facts his client should prove?

2) What facts his client need not prove?

3) What facts the other side should prove?

4) What fact the other side need not prove?


Section 101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or

liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a

person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

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.
Section 101 is based on the maxim – “Ei Incumbit Probatio Qui Dicit, Non Qui Negat”, i.e. the burden of

proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the

party who denies it; for a negative is usually incapable of proof.

Chief Engineer Vs. MP Dwivedi, 2012 LLR 250 MP

This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but

because the negative does not admit of the direct and simple proof of which the affirmative is capable.

Moreover, it is but reasonable and just that the suitor, who relies upon the existence of a fact, should be

called upon to prove his own case.

In the application of this rule, regard must be had to the substance and effect of the issue, and not to its

grammatical form, for in many cases the party, by making a slight alteration in the drawing of his

pleadings, may give the issue a negative or affirmative form, at his pleasure.
The party, on whom the burden of proof lies must, in order to succeed, establish a prima facie case. He

cannot, on failure to do so, take advantage of the weakness of his adversary’s case. He must succeed by

the strength of his own right and the clearness of his own proof. He cannot be heard to say that it was too

difficult or virtually impossible to prove the matter in question.

The illustrations to the section show that the provision applies to civil as well as criminal cases.

In Narain Singh Vs. State [(1997) 2 Crimes 464 (Del.)], it was held that, it is well settled that the prosecution

can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot

take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the

prosecution and convict the accused on that basis.

The Supreme Court in Jarnail Singh Vs. State of Punjab [AIR 1996 SC 755] held that in a criminal case,

the burden to prove the guilt of the accused beyond all reasonable doubt always lies on the prosecution,
and therefore if the prosecution fails to adduce satisfactory evidence to discharge the burden, it cannot rely

on the evidence adduced by the accused in support of his defence.

Section 102. On whom burden of proof lies. –– The burden of proof in a suit or proceeding lies on that

person who would fail if no evidence at all were given on either side.

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.
Section 101 contains the principle of burden of proof as to existence of certain facts and Section 102

contains the test i.e., who would fail, if no evidence is adduced.

The elementary rule in Section 101 that party who approaches court must prove his case is inflexible.

In terms of Section 102 the initial onus is always on the Plaintiff and if he discharges that onus and makes

out a case which entitles him to relief, the onus shifts to the defendant to prove those circumstances, if

any, which would disentitle the plaintiff to the same.

In Triro Vs. Dev Raj [AIR 1993 J&K 14], there was a delay in filing the suit, the defendant had taken a plea

of limitation period. Since the plaintiff was in position to know the cause of delay, the burden of proving

that the limitation should be condoned was on the plaintiff.


Viscount Dunedin explained in Robins v National Trust Co. [(1927) AC 505] the true function of “onus”

in civil cases:

“Onus is always on a person who asserts a proposition or a fact which is not self-evident. To assert

that a man who is alive was born requires no proof. The onus is not on the person making the

assertion, because it is self-evident that he had been born. But to assert that he was born on a

certain date, if the date is material requires proof: the onus is on the person making the assertion.

Now, in conducting any inquiry, the determining tribunal will often find that onus is sometimes

on the side of one contending party, sometimes on the side of the other, or, as it is often expressed,

that in certain circumstances onus shifts.”


Ranchhodbhai Somabhai & Anr. vs Babubhai Bhailalbhai & Ors. [AIR1982GUJ308], the difference

between “Burden of Proof” and “Onus of Proof” was discussed:

“It is also well to bear in mind that there is an essential distinction between “burden of proof”

and “onus of proof”; burden of proof lies upon the person who has to prove a fact and it never

shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation

of evidence (see Raghavamma v. Chenchamma, AIR 1964 SC 136). Burden of proof has two

distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the

burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the

former and Section 102 of the Evidence Act with the latter. The first remains constant but the

second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly

lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in

the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor

to prove those circumstances, if any, which dislodge the assertions of the claimants. If the
tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the

evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has

established the case and, on that basis, to make a just award it would thus appear, that though

the legal burden, - the burden as a matter of law and pleadings - remains constant on the

claimant, the burden as a matter of adducing evidence changes often times as the trial of the

claim petition progresses.”

In State of Maharashtra Vs. Wasudeo Ram Chandra Kaidalwar [(1981) 3SCC 199], it was held that the

expression “burden of proof has two distinct meanings (1) the legal burden i.e., the burden of

establishing the guilt; and (2) the evidential burden i.e., the burden of leading evidence”.
There are two theoretical concepts applicable to burden of proof:

(i) Onus Probandi – The obligation to prove an assertion or allegation that one makes. It is a general

rule that a party who alleges the affirmative of any proposition shall prove it.

(ii) Factum Probans – A fact offered in evidence as proof of another fact. It means the actual

evidence or proof presented to substantiate a claim in a legal proceeding.

In civil cases the burden of proof is determined on the basis of records produced before the courts such as

pleadings, documents, interrogatories, etc.

In criminal cases the burden to prove existence of every ingredient of the offence is on the prosecution.

The burden to establish the case is the initial burden. The burden to start adducing evidence is the second

stage.
The right to begin follows onus probandi. It assumes importance in the early stage of the case. The question

of onus of proof has greater force, where the question is, which party is to begin.

The term onus probandi, in its proper use, means that if a fact has to be proved, the person whose interest

it is to prove it should adduce some evidence, however slight, upon which a court could find the fact he

desires the court to find.

It means that the evidence he lays before the court should be sufficient, if not contradicted to form the

basis of a judgment and decree upon that point in his favour.

Burden of Proof is used in three ways:

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning

or later stage of a case;

(ii) to make that of establishing a proposition as against all counter-evidence; and


(iii) an indiscriminate use in which it may mean either or both of the above.

Order 18 CPC

Rule 1 – The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff

and contends that either in point of law or on some additional facts alleged by the defendant the

plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right

to begin.

Rule 3 - 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 his evidence on those issues or reserve it by way

of answer to the evidence produced by the other party; and, in the latter case, the party beginning may

produce evidence 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; but the party

beginning will then be entitled to reply generally on the whole case.

In a civil suit the burden is fixed once pleadings are complete – Issues are fixed. Once the burden is fixed

it never shifts, it lasts till the end of proceedings.

On the other hand in criminal cases there may not be pleadings. Police files its final report/charge sheet and

the court frames charges. It is well established that in criminal cases the burden to establish the case –

initial burden to start adducing evidence is always on the prosecution.

Burden of Proof is often lightened by:

(i) Presumptions;

(ii) Admissions / Confessions;

(iii) Estoppels
This expression means two different things:

 Firstly, it means sometimes that a party is required to prove an allegation before judgment can be

given in its favour;

 Secondly, it means that on a contested issue one of the two contending parties has to introduce

evidence.

The burden of proof is of importance where by reason of not discharging the burden which was put upon

it, a party must eventually fail (Sec 102). This burden will, at the beginning of a trial, lie on one party, but

during the course of the trial it may shift from one side to the other.

Examples/Case Laws:

1. Where the person claiming tenancy produced a certified copy of admission of his tenancy given

by landlord, burden of proof lay on the landlord to disprove the admission. [Damu Ganu Bendale

v Arvinda Dhondu Talekar, AIR 1994 SC 1303]


2. Where the tenant took the plea that the suit premises were not vacated by him, burden of proof

to establish his plea would be on the tenant. [Hardit Singh Chadha v Jagtar Singh Grover, AIR

1994 Del 189]

3. In a claim of damages for breach of contract, the burden is on the claimant to show the basis on

which the damages claimed by him have been quantified. [Usha Beltron Ltd v Nand Kishore

Parasramka, AIR 2001 Cal 137]

4. Where a sale deed was alleged to be forged and fabricated and, therefore, the party who made such

allegation had to prove it, the court said that it was not proper for the court to shift the burden of proof

because of hardship and require the other party to prove even to begin with that the allegation was false.

[Anil Rishi v Gurbaksh Singh, (2006) 5 SCC 558]

5. Even total silence of the accused as to any defence on his part does not lighten the prosecution’s

burden to prove its case satisfactorily. [Bishandas v State of Punjab, AIR 1975 SC 573]
6. Where the defendant said that he had put his signature only on a blank paper, it was held that the

evidence adduced by the plaintiff to the effect that the defendant had executed a document, if

found reliable, would discharge the burden of the plaintiff and put the burden on the defendant

to show that he had not executed any document. [Kuttadan Velayudhan Re, AIR 2001 SC 123]

7. In a suit for recovery of possession based upon the plaintiff’s possessory title, onus is on him to

establish the fact of his possession within the preceding 12 years from the date of adverse

possession. Once this fact was established, the onus would be shifted on to the defendant to show

that he was entitled to retain his possession on the basis of a superior title. [Kantilal v Shanti

Devi, AIR 1997 Raj 230]

8. A woman gifted her property to her grandson. The lady was more than 90 years, but she was fully

intelligent and not infirm. The gift was due to the flow of a natural love as the donee had lost his

mother and the step mother started torturing him. The suit was filed by the donor lady and her son. The
burden of proof was held to be on the person who alleged that there was a fraud in the

transaction. [Krishna Prasad v Gopal Prasad, AIR 2001 Pat 1]

9. The plaintiff in a suit for declaration of title and possession could succeed only on the strength of

its title and that could be done only by adducing sufficient evidence to discharge the onus on it,

irrespective of the question whether the defendants have proved their case or not. Even if the title set

up by the defendants is found against them, in the absence of establishment of the plaintiff’s own

title, the plaintiff must be non-suited. [UOI v Vasavi Cooperative Housing Society Ltd, (2014) 2

SCC 269]
Section 103. Burden of proof as to particular fact. ––The burden of proof as to any particular fact lies

on that person who wishes the Court to believe in its existence, unless it is provided by any law that the

proof of that fact shall lie on any particular person.

Illustration

A prosecutes B for theft, and wishes the Court to believe that B confessed the theft to C. A must prove

the confession.

B wishes the Court to believe that, at the time in question, he was elsewhere. B must prove it.

In State of Haryana Vs. Sher Singh [AIR 1981 SC 1021], it was held by the Supreme Court that the plea of

alibi taken by the accused has to be proved by the accused.

In Habib Ullah Bhat vs. Juna, AIR 2003 J&K 32, the plaintiff filed a suit for a declaration that the gift

deed relating to his property was null and void because at the time of its execution he was a minor. His
birth certificate was neither exhibited nor proved through other witnesses. It was for him to prove his

age and not for the defendant. The suit was filed 3 years after attaining majority. He was held not entitled

to the relief claimed.

In a claim against the railway for damage to consignment, it was contended by the railway that the damage

was due to rainfall, i.e., an act of God. The court said that rain is normally an expected natural

phenomenon against which precautions can be taken for saving property. Railway would have to prove

what care and caution was taken and how it could be said that the operation of nature was irresistible

[General Manager, Southern Rly vs. Agarwal Traders, AIR 2001 Kant 366]

In a claim against a carrier for non-delivery of goods, the court said that the burden was not on the plaintiff

but on the defendant carrier to prove that there was no negligence on his part [Karnataka Transport

Corp vs. National Insurance Bank Ltd, AIR 1999 Kant 233.]
Burden of Proof in Execution of a Document:

The burden of proving execution of a document is on the party relying on the document, unless, its

execution is admitted.

The burden of proof that a Will has been validly executed and is a genuine document is on the

propounder. Merely because a Will is registered its genuineness cannot be presumed. The registration of a

Will does not shift the onus of proof from its propounder to the challenger when doubt is raised.

In Malliga Vs. Santhamani [AIR 2009 (NOC) 1268 (Mad.)], where execution of sale agreement was denied

by defendant stating it to be forged one, the court held that the burden of proof lies on plaintiff to prove

valid execution of sale agreement and not on the defendant to disprove same.
Section 104. Burden of proving fact to be proved to make evidence admissible. –– 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.

This section should be read with second part of Section 136 of the Evidence Act and with illustrations

attached to that section.

Section 136. Judge to decide as to admissibility of evidence. ––When either party proposes to give

evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the
alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the

fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other

fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned,

unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge

may, in his discretion, either permit evidence of the first fact to be given before the second fact is

proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement

is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove

the statement, before evidence is given of the statement.


(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is

lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he

denied the possession of the property. The relevancy of the denial depends on the identity of the property.

The Court may, in its discretion, either require the property to be identified before the denial of the possession

is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of fact in issue. There

are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded

as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is

proved, or may require proof of B, C and D before permitting proof of A.


Examples/Case Laws:

 Where the rented premises were found to be in the possession of a stranger and not the tenant, the

burden was upon the tenant to disprove the inference of sub-letting as he alone had the special

knowledge of facts. [Gur Dayal Khanna v Malti Devi, AIR 1993 All 90.]

 In dealings with pardanashin women there is a presumption that the contract was the result of

undue influence. Hence, the burden lies on the other party to prove that the transaction was fair

and free. [Chaitan Charan Parida v Maheshwar Parida, AIR 1991 Ori 125]

 A pardanashin woman transferred her lands to her son subject to certain conditions as to

maintenance etc. But the deed was altered so as to remove the conditions, the burden to prove that

the alteration was with the consent of the woman was upon those who were trying to take

advantage of the deed. [Rankanidhi Sahu v Nandkishore Sahu, AIR 1990 Ori 64]
 An illiterate woman contended that the sale deed which she executed was not read over to her. It

was held that the burden was upon the other party to prove that she was made fully aware of the

contents of the document. [Sri Siya Ram v Lilawati, AIR 1990 All 75]

 Where the railways contention was that the person who died by falling from a train was not a

bona fide passenger being without ticket, the court said that it was for the railways to prove that

fact. [Mahaboob Sab v UOI, AIR 2011 Kar 8]


Section 105. Burden of proving that case of accused comes within exceptions. ––When a person is

accused of any offence, the burden of proving the existence of circumstances bringing the case within

any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception

or proviso contained in any other part of the same Code, 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 325 of the Indian Penal Code provides that whoever, except in the case provided for by

section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the

circumstances bringing the case under section 335 lies on A.

 Plea of Self Defence:

(i) In Rizan Vs. State of Chhattisgarh [AIR 2003 SC 976], it was held that the burden of establishing

the plea of self-defense is on the accused and the burden stands discharged by showing

‘preponderance of probabilities’ in favour of that plea on the basis of material on record.

(ii) In Samudra Rajan Vs. State of Tamil Nadu [(1997) 2 Crimes 185 (Mad.)], it was held that when

the prosecution has established its case, it is incumbent upon the accused under Section 105 to

establish the case of his private defence by showing probability.


 Burden of Proving Exception:

The basic principles underlying the subject of proving defence or exception were restated by the Supreme

Court in Dayalbhai v State of Gujarat, AIR 1964 SC 1563:

“The doctrine of burden of proof in the context of the plea of insanity may be stated in the

following propositions:

(1) the prosecution must prove beyond reasonable doubt that the accused had committed the

offence with the requisite mens rea; and the burden of proving that always rests on the

prosecution from the beginning to the end of the trial;

(2) there is a rebuttable presumption that the accused was not insane when he committed the

crime; the accused may rebut it by placing before the court all the relevant evidence oral,
documentary or circumstantial, but the burden of proof upon him is no higher than that which

rests upon a party to civil proceedings;

(3) even if the accused was not able to establish conclusively that he was insane at the time when

he committed the offence, the evidence placed before the court may raise a reasonable doubt in

the mind of the court as regards one or more of the ingredients of the offence, including mens rea

and in that case the court would be entitled to acquit the accused.”

The principles stated by the Supreme Court were restated by Fazal Ali J, in Rabindra Kumar Dey v State

of Orissa, (1976) 4 SCC 233:

“In our opinion three 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; and

(3)that the onus of the prosecution never shifts.”


Section 106. Burden of proving fact especially within knowledge. –– 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.

The principle contained in Illustration (a) of Section 106 is an application of principle of Res Ipsa Loquitur,

which means “the thing speaks for itself.”


 Res Ipsa Loquitur

In Byrne vs Boadle, 159 E.R. 299 this maxim was used for the first time where the complainant was injured

by a barrel that dropped from the window of the defendant. In this case Pollock, Chief Baron observed:

“There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. I

think it would be wrong to lay down as a rule that in no case can presumption of negligence arise

from the fact of an accident. Suppose in this case the barrel had rolled out of the warehouse and

fallen on the plaintiff, how could he possibly ascertain from what cause it occurred? It is the duty

of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that

such a case would, beyond all doubt, afford prima facie evidence of negligence. A barrel could

not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by

it must call witnesses from the warehouse to prove negligence seems to me preposterous.”

https://law.justia.com/cases/foreign/united-kingdom/159-eng-rep-299-1863.html
It has been considered by the Privy Council that the burden of proving negligence always rests with the

plaintiff, even when the maxim res ipsa loquitur applies [Ng Chun Pui v Lec Chuen Tat, 1988 CLY 1582]

Once the initial burden of showing the setting of the mishap is discharged, this maxim will relieve the

plaintiff of showing further evidence of negligence.

Wakelin v. London & South Western Rly Co., (1886) 12 App Cas 41, in this case under the Fatal Accidents

Act, 1846, the allegation was that the plaintiff’s husband met his death owing to the negligence of the

railway company. The only evidence offered was that the body was found lying by the side of the

railway line near a level crossing. Lord Watson stated that the liability of a defendant must rest in the first

place on there being:

“some negligent act or omission on the part of the company or their servants which materially

contributed to the injury or death complained of…. Mere allegation or proof that the company

were guilty of negligence is altogether irrelevant; they might be guilty of many negligent acts or

omissions, which might possibly have occasioned injury to somebody, but had no connection
whatever with the injury for which redress is sought, and therefore the plaintiff must allege and

prove, not merely that they were negligent, but that their negligence caused or materially

contributed to the injury.”

Essentials of Res Ipsa Loquitur Maxim

1. The injury caused to the plaintiff shall be a result of an act of negligence.

2. There is a lack of evidence, or the evidence presented before the court is insufficient to establish

the possibilities of the fault of the plaintiff or third party.

3. The defendant owes a duty of care towards the plaintiff, which he has breached.

4. There is a significant degree of injury caused to the plaintiff.


Acting upon this maxim and following the decision of the Supreme Court in Sayed Akbar v State of

Karnataka [AIR 1979 SC 1848], the Kerala High Court held that where a live wire was hanging on the

road from an electric pole, it must be presumed that it must have been due to negligent management

creating liability to the dependents of the pedestrian who was electrocuted.

 “Fact Especially Within Knowledge”

Illustration (b) A is charged with travelling on a railway without a ticket. The burden of proving that

he had a ticket is on him.

In Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404 it was held that:

“Section 106 is an exception to Section 101……….. This (Section 101) lays down the general rule

that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not

intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases
in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to

establish facts which are “especially” within the knowledge of the accused and which he could

prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that

are preeminently or exceptionally within his knowledge. If the section were to be interpreted

otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on

the accused to prove that he did not commit the murder because who could know better than he

whether he did or did not. It is evident that cannot be the intention and the Privy Council has

twice refused to construe this section, as reproduced in certain other Acts outside India, to mean

that the burden lies on an accused person to show that he did not commit the crime for which he

is tried. These cases are Attygalle v. Emperor(1) and Seneviratne v. R. (2).


In Sucha Singh v. State of Punjab, [2000] 4 SCC 375, two persons were abducted by armed assailants

from their house at night. The next day their bodies were found riddled with gunshot injuries. The

circumstances found sufficient were, amongst others, that the incident had taken place during the period when

the Punjab was boiling with terrorist activities; that the terrorists treated the house of the deceased as the

home of police tout; that the accused had gone to the house of the deceased armed with AK-47 rifles and

forcibly taken away the two boys; that the deceased then did not return home but their bodies were

found the next morning riddled with bullets. The Court held that what happened after the two boys were

abducted was within the exclusive knowledge of the accused and that they did not tell the Court as to what

they did with the boys after they abducted them. The accused persons were convicted as they failed to

discharge the burden caste upon them by Section 106 of the Evidence Act.
In Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842, the Supreme Court stated

that:

“This is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was

brutally assaulted and then a chhura blow was given on the chest. Thus, Chhura blow was given

after Bijoy Chaudhary had said “he is still alive and should be killed”. The Appellants then

carried away the body. What happened thereafter to Krishnanand Chaudhary is especially

within the knowledge of the Appellants. The Appellants have given no explanation as to what

they did after they took away the body. Krishnanand Chaudhary has not been since seen alive.

In the absence of an explanation, and considering the fact that the Appellants were suspecting

the boy to have kidnapped and killed the child of the family of the Appellants, it was for the

Appellants to have explained what they did with him after they took him away. When the

abductors withheld that information from the Court there is every justification for drawing the

inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not
be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond

reasonable doubt, but the section would apply to cases like the present, where the prosecution

has succeeded in proving facts from which a reasonable inference can be drawn regarding death.

The Appellants by virtue of their special knowledge must offer an explanation which might lead

the Court to draw a different inference. We, therefore, see no substance in this submission of Mr.

Mishra.”

In State of Rajasthan Vs. Kashi Ram [AIR 2007 SC 144], the Supreme Court held that the provisions of

Section 106 are unambiguous and categoric in laying down that when any fact is especially within the

knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with

the deceased, he must offer an explanation as to how and when he parted company. He must furnish an

explanation which appears to the court probable and satisfactory. If he does so he must be held to discharge

his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to

discharge the burden cast upon him by Section 106.


In case of death in police custody the presumption is created and the burden is on the person who was

holding the custody to show how the captive had died [Dalip Singh Vs. State of Haryana, AIR 1993 SC

2119 ].

In Swamy Shradhananda Vs. State of Karnataka [AIR 2007 SC 2531], the deceased died under unnatural

circumstances in her bedroom, which was occupied only by her and her husband, law requires the

husband to offer an explanation in this behalf. Absence of any explanation by the husband would lead to

an inference of a circumstance against the husband.


Section 107. 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.

Section 108. Burden of proving that person is alive who has not been heard of for seven years. ––

[Provided that 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.

Sections 107 and 108 must be read together because the latter is only a proviso of the rule contained in the

former, and both constitute one rule when read together [State of Punjab Vs. Bachan Singh, AIR 1956 Ajmer

2].
Section 109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal

and agent. –– 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 a juridical relation is once established, it is enough generally for a party relying upon such relation to

show its establishment, and the burden is then on the opposite party to show that the relation has ceased.

Where a partnership is once shown to exist, the burden of proving that it has ceased to exist is on the person

who asserts that it has ceased to exist.


After a partnership firm is dissolved, the partners continue to be liable to third parties, for an act done which

would have been an act of the firm, if done before the dissolution, until a public notice of dissolution is given

(Section 45 of the Partnership Act, 1932).


Section 110. Burden of proof as to ownership.––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.

The section provides that if a person is shown to be in possession of something there is the presumption that

he is the owner. It is founded on the principle that possession prima facie is proof of ownership.

“Possession is a good title, nothing less against all but the true owner [Asher Vs. Whitlock, 1 QB 16]”

A person in peaceful possession of land has as against every one but the true owner, an interest capable of

being inherited devised or conveyed.


In Chief Conservator of Forests Vs. Collector [AIR 2003 SC 1805], it was held that Section 110 embodies

the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts

burden of proof on the party who denies his ownership.


Meaning of Possession:

Before the presumption of title from long possession can be called in aid the possession must have been

prima facie lawful, long and continuous so as to lead to an inference that the person is possession really has

title though he is unable to trace it.

For the purposes of this section possession must be such as leads to an inference of title, mere undisturbed

user for some time being insufficient [Suraji Tulaji Vs. Secretary of State, AIR 1937 Bom 193].

Physical contact or occupation is not necessary to complete physical possession. A person maybe in

possession either by himself, cultivating the land or by having it cultivated by tenants. Receipt of rents and

profits is a recognized act of possession.


In the case of waste and jungle land, possession cannot be expected to be proved by acts of actual user and

enjoyment, and it is presumed to be with the owner unless definite evidence of acts of possession by another

person is forthcoming.

When the facts disclose no title in either party, possession alone decides.

Section 111. Proof of good faith in transactions where one party is in relation of active confidence. ––

Where there is a question as to the good faith of a transaction between parties, one of whom stands to

the other in a position of active confidence, the burden of proving the good faith of the transaction is

on the party who is in a position of active confidence.

Illustrations
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The

burden of proving the good faith of the transaction is on the attorney.

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the

son. The burden of proving the good faith of the transaction is on the father.

The words “active confidence” in the Section indicate that the relationship between the parties must be such

that one is bound to protect the interest of the other. A legal advisor stands in a fiduciary position to his client,

a doctor to his patient, a parent to his child, an agent to his principal, and whenever a transaction between

such parties is questioned, the burden of proving the good faith of the transaction is on the party who stands

in a fiduciary relation to the other.


Section 111A. Presumption as to certain offences. –– (1) Where a person is accused of having committed

any offence specified in sub-section (2), in ––

(a) any area declared to be a disturbed area under any enactment, for the time being in force,

making provision for the suppression of disorder and restoration and maintenance of public

order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance

of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives

were used at or from that place to attack or resist the members of any armed forces or the forces
charged with the maintenance of public order acting in the discharge of their duties, it shall be

presumed, unless the contrary is shown, that such person had committed such offence.
(2) The offences referred to in sub-section (1) are the following, namely: ––

(a) an offence under section 121, section 121A, section 122 or section 123 of the Indian Penal Code (45

of 1860);

(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or section

123 of the Indian Penal Code (45 of 1860).]

Section 111A was inserted after Section 111 by Amendment Act of 1984. The amendment was made through

the same ordinance through which the Government established special courts in terrorist affected areas. This

Section puts the onus of proof of innocence on the accused person in cases involving terrorist activities.

However, the onus on the accused arises only when the prosecution is able to establish all necessary

ingredients contained in the Section 111A, which may give rise to presumption against the accused. If
prosecution is unable to satisfy the court about existence of all necessary ingredients contained in the Section,

there will be no presumption against the accused.


In Javed @ Java Ahmed Mohammed Akbar vs The State Of Maharashtra [2007 CriLJ 1386], it was held

by the Bombay High Court that:

“Under Section 111A of the Indian Evidence Act, a presumption can be drawn against a person

who is accused of having committed an offence punishable under Section 122 of the Indian Penal

Code. It can be presumed that a person charged under Section 122 of the Indian Penal Code, is

guilty if it is shown that he had been in an area declared to be a disturbed area and where firearms

or explosives were used or found to attack or resist the members of any armed forces or forces

charged with the maintainance of public order, while discharging of their duties. However, the

prosecution in this case has not established that the area from which the accused persons were

arrested was a disturbed area or that the accused had used the firearms against persons charged

with maintaining law and order in that area or the armed forces. Therefore, such a presumption

under Section 111A of the Indian Evidence Act also cannot be drawn in the present case.”
The general rule that a party who desires to move the court must prove all facts necessary for that purpose (sections 101–105) is subject to two
exceptions:—

(a) he will not be required to prove such facts as are especially within the knowledge of the other party (sec on 106); and

(b) he will not be required to prove so much of his allega ons in respect of which there is any presump on of law (sec ons 107–113), or in some

cases, of fact (sec on 114) in his favour.

For example, a very old man donated land and later sued for possession on the ground that the gi was not voluntary. The burden was upon the

donee.

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy