Burden of Proof

Author: Paresh chandra saw, Law College Dhanbad.


The expression burden of proof is defined in section 101 of the Indian Evidence Act 1872 in these words:

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

The question is which out of the two parties has to prove the fact. The answer to this question decides the question as to burden of proof. The burden of proof means the obligation to prove a fact. Every party has to establish facts which go in his favour or against his opponent. And this is the burden of proof. The act lays down some principle of general nature.

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.


(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.

Burden and onus

The illustration applied to the section source that the provision is intended to apply to Civil as well as criminal cases

Onus is always on a person who asserts a proposition a fact which is not self-evident. To assert that a man who is alive was born requires no proof. The owners are not on the person making the assertion because it is self-evident that he had been born. But to I assert that he was born on a certain date if the date is material requires proof: the onus is on the person making the ascertain. Now in conducting any enquiry, the determining Tribunal will of 10 find that owners are sometimes on the side of the contending that in certain circumstances onus shifts.

The expression burden of proof has two distinct meaning:

  • The legal burden
  • The evidential burden

In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the persecution in the case of certain offences the burden of proving a particular fact in issue may be late by law on the accused. The burden resting on the accused in such cases is however not so onerous as that which lies on the prosecution and is discharged by proof of balance of probabilities. Under the scheme of the prevention of corruption, act burden lies upon the accused to account for his possession.

Burden of proof in civil cases: In civil cases the burden of proof in the sense of providing a case is discharged by more preponderance of probability. The standard of proof applies in all the Civil cases. The court has to strike the balance of probability. Even in a case where fraud is to be proved the same standard is to be applied.

Burden of proof in criminal cases: In criminal cases the burden of proof event in the sense of establishing a case is always on the persecution. 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 evidence as a whole is unreliable and cannot be accepted as correct for specific reason The Silence of the accused can be of no avail to the prosecution for search conduct of silence can never be permitted to become a substitute for the prove by the prosecution.

Importance of burden of proof: the question of Honours or burden of prove at the end of the case when both the parties have reduced their evidence is not of very great importance and the court has to come to a decision on a consideration of all materials. Burden of proof as determining the factor of the whole cases can only arise if the traveller finds the evidence Pro and con so evenly balance that it can come to no conclusion. Then the owners will determine the matter and the person on whom the burden of proof lies will lose. What is the tribunal after hearing and weighing the evidence comes to a determinate conclusion the owner has nothing to do with it and need not be further considered. The case is to be decided on merit without taking into consideration as to on which of the party the burden of proof lay.

W.R. Colliery v. Bihar state co-operative Marketing Union A.I.R. 1978 Pat. 57

Where in a contract for the sale of coal The talented a list that the price was to be calculated according to weight and the defendant that it was to be by measurement no satisfactory evidence having been reduced by either party it was held that it was for the plaintiff to prove his case.

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.


(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.

The section tries to locate the party on whom the burden of proof lies. The burden of proof lies upon the party whose case would fail if no evidence were given on either side. If A sues B to recover damages for breach of contract and if neither party give evidence A would close his 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 consent was accused by fraud and if neither party gives evidence B’s case would fail and therefore burden lies upon B to prove the fraud. In an action, for breach of contract to emboss Calico in a workmanlike Manner, the defendant pleaded that he had done the work in accordance with the contract.

Kishan Chand v. Bacardi Das A.I.R. 1990 P&H 160.

Where a landlord a list that there was a subletting by the tenant and he was able to prove that possession  and occupation was with person other than the tenant it was held that this had the effect of shifting the onus of proof to the tenant to show that was the nature of the agreement between the tenant and the person occupying the premises.

S.104. The burden of proving the 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.


A wishes to prove a dying declaration by B . A must prove B’s death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

Proof of fact on which evidence becomes admissible

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 if a person wants to prove a dying declaration he must prove that the declarant has died. 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.

S.105. The burden of proving that the 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.


(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, (45 of 1860), 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 lies on A.

The burden of proving the exception in criminal cases

The above-stated principal relating to burden of proof is applicable to criminal cases also. Section 101 to 104 and section 105 nowhere mention that they are to be confined to Civil cases only and some of the illustration appended to these sections are on criminal matters. This shows that the principal is intended to be of uniform application to Civil criminal and other proceedings. Section 105 is however intended to apply only to the criminal proceeding.

The general principle relating to burden of proof in criminal cases are these two: firstly that the court presumes that the accused is innocent and therefore prosecution must prove that he is guilty and secondly that once the persecution has proved beyond a reasonable doubt that the accused is guilty and he takes any difference such as insanity the burden of proving that fact lies on him. This is what section 105 provides. It says that if the accused claims that his case comes within any of the recognise exception the burden of proving that lies on him.

Babu Lal v. State A.I.R. 1960 All.223

It was held that it is not necessary for the accused to plead the existence of circumstances bringing is within an exception. An accused is clearly entitled to claim and acquittal is on the evidence for the prosecution it is shown that he has committed no offence. The section does not say that the accused must lead evidence. The circumstances to be proved me otherwise appear from the record. Where the prosecution case itself indicates that an exception is applicable in favour of the accused in the circumstances of the case the accused cannot be denied the benefit of the exception whether he pleads it or not.

S.106. The burden of proving fact specially within knowledge.

When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.


(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

State of Bihar v. Kumar  P.N.Singh (1997)5 SCC 298.

Where is fat is especially within the knowledge of a party the burden of proving that fact lies upon him. This is the principle of section 106. Where a man and a woman were found hiding under a bed in the bedroom of the person who was lying date of injuries it was held that the burden placed upon them to explain their presence and also the circumstances in which the deceased met his death. Failure on the part of the state to produce the merit list is. Supreme Court direction created the presumption that no merit list was prepared. The fact of the existence or otherwise of the merit list was especially within the knowledge of the state.

S.107. The burden of proving the 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.

This presumption is however not a very strong one. It may not only be reputed by a shred of slight evidence to the contrary for example 7 years absence but the court may not act upon it until positive proof of his being alive is offered.

Submit Kaur v. Jujhar Singh A.I.R. 1980 P&H. 275

Where a person was known to be alive up to 1960 the Punjab and Haryana high court held that it must be presumed that he would be alive up to 30 years from that date. If he is why I wanted to remarry she must prove that he is no longer alive or has remained unheard for 7 years. All that she was able to so was that two of their relatives knew that he had gone to Indonesia and more than 7 years had passed and he has neither written any letter no otherwise heard of by anybody since then. This was held to be not sufficient to create the presumption of death. Her marriage was declared to be void.


S.108. The 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.

Section 108 materially qualify the operation and effect of the prisms and raised by section 107. The essence of the section is that if a person is not heard of 7 as the prism son is that he has died and if anybody alleges that he is still alive he must prove that fact. Thus 7 years absence creates a rebuttable presumption of death.

S.109. The burden of proof as to relationship in the case 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.

This section is based upon the presumption that things continue as they were. Things or circumstances once proved to have existed in a certain state at a particular time continue to exist in that state for a reasonable period thereafter. Accordingly, where a certain person has been shown to be related to each other as partners or as principal and agent or as landlord and tenant there is the presumption of fact that they continue to be so related. If anybody says that they were not all are no more so related he must prove the fact.

S.110. The burden of proof as to ownership

When the question is, whether any person is the 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.

Chuharmal v. C.I.T. A.I.R. 1988 SC 1384

Where a corruption had exercised exclusively the right of pasturages over certain Lands for a long period of time and when ultimately the question arises whether the right was exclusively or in common with other it was held that the long exclusive enjoyment was evidence of exclusive ownership of the right although in the relevant document the right was described to be a common right.


S.111.Proof of good faith in transactions where one party is in the 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.


  • 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.

Daya Shankar v. Bachi A.I.R. 1997

A decision of the Allahabad High Court provides a suitable example. The plaintiff’s uncle being childless used to treat The talented as his own son Since his childhood and had a great affection for him. He was eighty years old. He fell ill. The plaintiff secured his admission into a Railway Hospital. Within 8 days thereafter the accused a gift deed of his certain houses in favour of the plaintiff. About a month thereafter his other hairs obtained from him another gift deed favouring them. He died about six months later. The court laid down that the deed in favour of the plaintiff was executed in abnormal circumstances. The burden of proving good faith was cast upon him which he did not discharge. The dead was liable to be set aside. The court stated that ordinary a person who challenges the validity of a transaction on the ground of abuse of trust has to prove that fact. But where the relation of active confidence subsist there the burden of proving the bona fide of a transaction is shifted to the person who relies on it. The court further pointed out that the variety of fiduciary relation is not exhausted by the few well-known patterns. Any relationship in which one party enjoy the active confidence of the other who has to lean on him and repose confidence in him is enough to attract the provision of section 111. A woman who was not merely housewife but also an actress was not permitted to take the advantage of the section buy alleging that the transfer the educated in favour of her husband who is under the husband’s influence. She was neither illiterate nor incapable of understanding the nature of the transaction. She was talking of the fraud by the husband and his influence.

Recent Update

“The accused cannot be expected to relinquish his innocence at the hands of an inefficacious prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused.” -SC

Supreme Court Bench comprising of Justice NV Ramana and Justice Mohan M Shantanagoudar while hailing an acquittal sentence, observed that benefit of doubt arising out of an inefficient investigation must be bestowed upon the accused.


Conclusion :

The rule governing the burden of proof is that whoever lays a claim must present evidence or proof. This rule is subject to the principles that the burden of proof rests on the party that either asserts a claim or denies it. This implies that whoever brings a case against another to the court must prove the fact he claims. In criminal cases, the burden of proof on defendants is based on the evidence that is established before the court which states the fact that he committed the crime as adduced. An accused can only be presumed guilty based on the fact established by the plaintiff to the court in accordance with the Burden of Proof that rules the case.

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