Burden of proof and onus of proof.


Author: Santoshi Karasi


The Courts require the evidence in order to make a judgement on the facts of any case and the burden to prove the existence of such fact generally lies on the party who has provided the evidence. The Law relating to Burden of proof and onus of proof has enumerated from the Indian Evidence Act, 1872, and its related provisions are covered under Section 101 to section 114 in chapter VII of the act. Now the question may arise on whom the Burden of proof lies and who has the onus of proof?


Commonly, the Burden of proof is referred to as an obligation to prove one’s assertion. However, it is nowhere defined in the Evidence Act. It is the fundamental principle in the criminal jurisprudence that the offence committed by an accused is to be proved by the prosecution. Further, in a strict sense, the burden of proof is the responsibility to prove a fact in a case.  The term Burden of proof explained under section 101 of the Indian Evidence Act as “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.” This clearly means the burden of proof is the responsibility of the party to establish such facts in issue or relevant facts in the case to the required degree of certainty in order to prove the case. For instance, in case of theft, the prosecution may allege that all the required conditions for constituting a theft are fulfilled. All such conditions are fact in issue and there is an obligation to prove their existence and such obligation is a burden of proof. Further, there is two principles of Burden of proof the first one is Onus Probandi which means the burden of proof, generally, the party who alleges an affirmative position has to prove it and the second is Factum probans means proving a fact.


The onus of proof is not defined anywhere in the Evidence Act, however, the provisions relating to the same is provided under the Evidence Act and under many judgments given by the court. Further, there is a general rule in the criminal law that it is the duty of the prosecution to proof the burden in the case, however, when the accused calls upon to proof the burden is an exception to the above generality, this we called that onus of proof falls on accused to proof his case under an exception.  The term ‘Onus of Proof’ is the burden to produce actual evidence that can be shift from one to another party and such shifting is the continuous process in the evolution of evidence. In the case of Jarnail Sen v. State of Punjab[1], if the prosecution fails to adduce the satisfactory evidence to discharge the burden, they cannot depend upon the evidence adduced by the accused person in support of their defence.

If any person claims that the fact exists then the burden of proof lies on that person now it would create confusion that on whom the burden of proof lies, therefore, Section 102 of Evidence Act is clear on this part which provides that 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. For instance, A sues B for the 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.


The burden of proof lies upon the person who has to prove a fact and the burden remains constant which never shifts while on other hand onus shifts from one to another[2]., Addagada Ragavamma & Anr v. Addagada Chenchaamma & Anr. Supreme Court held that there is an essential distinction between the burden of proof and onus of proof, the first one is the burden to prove the main contention of the party requesting the action of the court, while the second one is the burden to produce actual evidence.

In the case of Anil Rishi vs. Gurbaksh Singh[3], it was observed that a distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin.


The term burden of proof has two different meaning one is Burden of proof establish a case and the other burden to adduce evidence which is also known as the onus of proof, thus we can say the onus is nothing but one part of Burden of proof which is unstable and has a feature of shifting, in addition, the burden to proof is not same in the civil and criminal cases, this deals differently in both the cases and the accused can be considered guilty when the facts have been proved in the court of law.

[1] AIR 1996 SC 755

[2] Abdulla Mhd v. State (1980) 3 SCC 110.

[3] AIR 2006 SC 1971

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