INTRODUCTION

Every legal proceeding seeks to establish some sort of right or liability. These commitments and rights are predicated on facts that must be convincingly established in court. Who must submit the case’s evidence and persuade the court of its validity is specified in Sections 101 to 111. While Sections 101 to 103 discuss the duty of proof broadly, Sections 104 to 111 deal with situations where the burden of proof falls on a specific party. These principles are referred regarded as the “Burden of Proof” rules.

MEANING

The phrase “burden of proof” is not defined under the Indian Evidence Act. The legal duty or obligation for the parties to establish the facts that will help the court rule in their favour, however, is known as the burden of proof. The Burden of Proof refers to the responsibility in litigation to establish a fact.

If the person on whom the burden is passed fails to provide any evidence, the issue must be decided against him, according to the strict definition of the word “burden of proof” (onus probandi). Chapter VII of the Indian Evidence Act addresses the burden of proof requirements.

BURDEN OF PROOF (Section 101)

The “Burden of proof” is discussed in Section 101 of the Indian Evidence Act of 1872. According to this clause, a person must establish the existence of any facts he claims in order for the court to rule on his legal rights or obligations based on such facts. The burden of proof is stated to be on a person when they have a responsibility or obligation to establish a fact.

E.g.: If Ram is of the opinion that Shyam has committed a crime and that he must be punished for the same, then it is upon him to prove that Shyam has committed the said crime.

ON WHOM BURDEN OF PROOF LIES (Section 102)

Section 102 of the Indian Evidence Act, of 1872 speaks about, “On whom the burden of proof lies”. Section 102 fixes the burden of proving the facts in any suit or proceeding on that person who would fail in case no evidence is given on either side.

E.g.: Sunil has filed a case stating that the land which is in possession of Anil belongs to him. Here, the burden of proof is on the one who will suffer if he/she does not prove the fact. Hence, if Sunil does not prove that the land belongs to him then Anil will continue to have possession of the land and Sunil will suffer by losing his land.

BURDEN OF PROVING A PARTICULAR FACT (Section 103)

The “Burden of proof as to particular fact” is discussed in Section 103 of the Indian Evidence Act of 1872. According to this clause, the burden of proof for a specific fact rests with the party seeking the court’s belief in its existence unless the legislation expressly states that the burden of proof rests with a certain party.

Accordingly, this section states that the burden of proof is on the party asserting the affirmative or negative of a certain fact, unless the evidence law or another applicable legislation expressly states otherwise. This clause therefore states that the maker of an assertion must provide evidence to support it.

The distinction between this section and Section 101 is that in Section 101, the person asserting a truth has the burden of demonstrating whether it is positive or negative, affirmative or denial, but in this section, the person asserting a fact has the burden of proving whether it is affirmative or denial.

E.g: Chirag says that at the time of his neighbour’s murder, he was not at home and was at his uncle’s place. In this case, it is upon Chirag to prove that he was at his uncle’s place.

In Kamini Sahuani v. Purna Chandra Sahoo, a married woman who was maltreated by her in-laws and driven out of her matrimonial home filed a case for recovering her jewellery and other articles. Her in-laws pleaded that she had already taken these articles away, the court held that there cannot be any presumption that she has taken away any of her articles, and the burden of proof would be upon the in-laws to prove that she has taken away her jewellery and other articles.

Every person is required by Section 39 of the Criminal Procedure Code to report certain offences that they are aware of or appear to have committed to the nearest police officer or magistrate. If he fails to accomplish it, he is responsible for providing a justifiable explanation. The Indian Evidence Act’s second part, which reads, “if the law itself provides that the burden of proof lies on any particular person,” applies in this instance. The burden of proof, in this case, is with the party who failed to provide information to the nearest police officer or magistrate as required by law (in this case, Section 39 of the CrPC).

PARTICULAR CASES WITH REFERENCE TO THE BURDEN OF PROOF

These principles are called the rule of the convenience of the burden of proof which is covered under Sections 104-113 and Sections 113A and 114A.

BURDEN TO PROVE TO MAKE EVIDENCE ADMISSIBLE (Section 104)

The “Burden of proving fact to be proved to make evidence admissible” is mentioned in Section 104 of the Indian Evidence Act, of 1872. According to this provision, it is the responsibility of the person who intends to provide evidence for the latter fact to establish the earlier fact when it is required to do so in order for them to provide evidence for the latter fact.

Illustration: – A wishes to prove a dying declaration by B. A must prove B’s death. This illustration says that the fact necessary to be proved is the dying declaration of B and the fact necessary to prove the dying declaration is that B is dead. Mahboob Sab v. Union of India, (2011) In this case, the Railways’ contention was that the person who died by falling from a train was not a bonafide passenger being without a ticket, the court said that it was for the Railways to prove that fact.

BURDEN TO PROVE THAT THE ACCUSED COMES WITHIN EXCEPTION (Section 105)

Section 105 of the Indian Evidence Act, of 1872 speaks about the “Burden of proving that the case of the accused comes within exceptions”.

The burden of establishing the existence of all circumstances bringing a case under any of these exceptions shall be on the accused when, under this section, an accused relies in his defence on any of the Exceptions provided in the Indian Penal Code or in any other statute defining the offence. A presumption that such circumstances don’t exist will be made by the court.

When making an exemption under Section 105, the level of proof required of the accused is far lower than it would be for the prosecution in a comparable situation. It may not be necessary for an accused person to present evidence to demonstrate their innocence. However, an accused person alone has the burden of proving that his specific circumstances fall under an exception to the said clause.

General presumption: According to the general premise, the accused is presumed innocent unless proven guilty, and the burden of proof rests with the prosecution to do so. Once guilt has been proven, the burden of proof shifts to the accused, who may then raise an I.P.C. general exceptions defence.

This overall burden is always on the prosecution and it never changes. An essential exception to this general rule is Section 105. The approach outlined in Section 103 is applied in this section and even extended. The specific responsibility placed on the accused under Section 105 does not conflict with the general burden, which always falls on the prosecution and never changes.

BURDEN TO PROVE FACT ESPECIALLY WITHIN KNOWLEDGE (Section 106)

The Indian Evidence Act of 1872 mentions the “burden of proving a fact, especially within knowledge” in Section 106. The exception to Section 101 is Section 106. According to this provision, the onus of proof rests with the individual who, in particular, has knowledge of the fact in question. It states that when a fact is specifically within the knowledge of a person, that person is responsible for establishing that fact. The reasoning behind this Section is that such a person is in a better position to show the reality, especially when it is within his knowledge, and it is challenging or nearly impossible for the opposing side to do so..

Illustration: – The body of B was found in the house of A. The onus is upon A to establish that even if the body of the deceased was recovered from his house, his involvement in the crime is negligible. The inmates of the house are also required to provide an explanation. If the defendant fails to provide a viable explanation and fails to establish his innocence, this would form a chain of circumstantial evidence establishing the guilt of the accused.

Section 106 applies only to the parties to a suit or proceeding. It is designed to meet certain exceptional cases in which it would be impossible or very difficult for the prosecution to establish facts that are especially in the knowledge of the accused.

Ram Gulab Chaudhury v. State of Bihar (2001) In this case, a dead body was not found but there was a clear witness by the eyewitness that the victim was killed by the accused before they took away the body. No explanation was given by the accused as to the disappearance of the dead body. The court said that it can convict the accused people by drawing the presumption that the accused people had a reason to take away the dead body and the reason being that the death was caused by them.

BURDEN TO PROVE THE DEATH OF PERSON (Section 107)

Section 107 of the Indian Evidence Act, of 1872 speaks about, the “Burden of proving the death of a person known to have been alive within thirty years”.

This section provides that where there is a question whether a man is alive or dead and if it is shown that he was alive within a period of 30 years, the burden of proving that he is dead is on the person who affirms it. Once it is shown or proved that a man was alive within a period of thirty years a presumption is allowed to be raised under this provision as to the continuance of life of such person.

In Surjit Kaur v. Jhujhar Singh, a person was shown to be alive in the year 1960 and was presumed by the court to be alive upto 30 years from that date. The evidence of his wife that her husband had gone to Indonesia and more than 7 years had elapsed and he neither had any communication nor was heard of by anyone since then, was held to be not sufficient to rebut the presumption under Section 107

BURDEN TO PROVE THAT PERSON IS ALIVE (Section 108)

The “burden of proving that a person is alive who has not been heard of for seven years” is mentioned in Section 108 of the Indian Evidence Act, of 1872. According to this section, the burden of proving that a man is alive shifts to the person who affirms that he is alive when it is disputed whether he is alive or dead and it is established that those who would ordinarily have heard of him had he been alive did not do so for a period of seven years.

Independent proof is required because there is only a basic presumption of death and not of the time of death. The person claiming a right for the establishment of which such fact is necessary bears the burden of establishing that death occurred at a specific moment within the span of 7 years.

BURDEN OF PROOF TO RELATIONSHIP (Section 109)

Section 109 of the Indian Evidence Act, of 1872 speaks about, the “Burden of proof as to relationship in the case of partners, landlord, and tenant, principal and agent”. According to this clause, the law presumes that any relationship or condition of affairs between individuals who have acted as partners, landlords and tenants, or principals and agents will continue to exist unless the contrary is established. When it is proven that people were in the aforementioned relationships—partners in a partnership business, landlord and tenant, or principal and agent—and that they have been functioning in those capacities—a presumption may be made that they are still in those relationships. The burden of demonstrating that they do not stand or cease to stand in such a relationship is on those who wish to refute this presumption.

BURDEN OF PROOF TO OWNERSHIP (Section 110)

“Burden of proof as to ownership” is a concept mentioned in Section 110 of the Indian Evidence Act of 1872. When a person is demonstrated to be in possession of any property, Section 110 permits to raise a presumption that he is the owner of such property and the burden of demonstrating that he is not the owner is on the person who affirms that he is. Possession is the primary indicator of ownership, hence anyone wishing to dispose of the possessor must prove that they have the legal authority to do so. The rule will not hold true if the possession was obtained through deception or force. The term “possession” in this clause must be construed as an actual current possession rather than a legal one.
Under this clause, a presumption may be raised in relation to both mobile and immovable property, as well as by the government. But in cases where there is a statutory presumption of ownership in favour of the government, it will not be applicable.

PROOF OF GOOD FAITH IN TRANSACTIONS (Section 111)

According to this clause, the duty of demonstrating the good faith of a transaction lies with the party who is in a position of active confidence with the other party whenever a doubt regarding the transaction’s good faith arises between the parties.

When two parties enter into a transaction while on equal footing, it is presumed that both parties have good faith; however, when they are on unequal footing and one party is in a position of active confidence over the other, it is their responsibility to demonstrate that both parties have good faith.

PRESUMPTION AS TO CERTAIN OFFENCES (Section 111-A)

Under this provision, where a person is accused of committing an offence under

(a) Section 121 (Waging or attempting to wage War or abetting Waging of war against the Govt. of India),

(b) Section 121-A (Conspiracy to commit an offence of waging or abetting to wage a War against the Govt. of India),

(c) Section 122 (Collecting arms etc., with the intention of waging war against the Govt of India) and

(d) Section 123 (Concealing with intent to facilitate design to Wage War) of the Indian Penal Code in any:

1. 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

2. area in which there has been, over a period of more than one month, extensive, disturbance of public peace, and when it is shown that such person had been at a place in such area at the time 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, the court shall presume that such person had committed such offence unless contrary is shown child. The same presumption arises where the marriage was dissolved and the child was born within 280 days after dissolution, the mother remaining unmarried in the meantime.

The essential conditions for the presumption to arise are:

1. The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved, within 280 days after its dissolution, the mother remains unmarried.

2. The parties to the marriage should have had access to each other at any time when the child could have been begotten.

PRESUMPTION AS TO ABETMENT OF SUICIDE BYA MARRIED WOMAN (Section 113-A)

By virtue of this clause, the court may assume that a woman’s suicide was encouraged or that she was exposed to cruelty by her husband or any of his family if it occurs within seven years of the date of their marriage. The husband or his kin is required to provide evidence to overcome the assumption.

In Arvind Kumar v. State of M.P, where the deceased wife committed suicide by setting herself on fire because of harassment, humiliation and torture caused by the accused husband for bringing insufficient dowry, the fact that the accused though present in the house at the time of the incidence made no attempt to save the victim by not calling the doctor and not bothering to call a doctor, the presumption provided under Sec. 113-A would be applicable.

PRESUMPTION AS TO DOWRY DEATH (Section 113-B)

When the question arises whether a person has caused the dowry death of the woman, if it is shown that prior to the death of such woman, she had been subjected by such person to cruelty or harassment for or in connection with the dowry demand, the court shall raise a death.

An adverse presumption that the accused was responsible for the dowry death in question may be raised against him if the court determines that there are sufficient circumstances to demonstrate that the victim of the dowry death was subjected by the accused to cruelty or harassment prior to her marriage. The phrase “shall presume” in Section 113B requires the court to raise the presumption that the accused is to blame for the dowry death. The burden of proof is to disprove the presumption referred to in the Section and demonstrate that there are no circumstances that would indicate the putative victim of dowry death.

PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE (Section 114-A)

The new rule has the effect of giving the court a presumptive answer when determining whether sexual activity between a man and woman occurred with or without consent when the woman testifies in court that it did not occur with her consent. The onus of demonstrating consent is now placed on the accused. He commits a crime if he is unable to demonstrate that there was consent.

In re: State of Assam, Bipul Medhi The onus would then shift to the accused to demonstrate that his sexual act with the prosecutrix was with her consent when sexual intercourse between the accused and the prosecutrix is established to have occurred and the prosecutrix in such a case claimed in her testimony before the court that she had not consented to the sexual act.

The following conditions have to be satisfied in order to raise an adverse presumption against the accused for rape as to the absence of consent:

1. The fact of sexual intercourse between the accused and the victim must be proved.

2. The question must be before the court whether such inter-course was with or without the consent of the alleged victim.

3. The statement of the victim before the court that she had not consented.