Study Material Law of Evidence- II
B.A.LL. B (HONS) VI SEMESTER
Unit-1
Burden of Proof (General Rules)
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 phrase “burden of proof” has two distinct (and frequently confused) meanings:
(i) The burden of proof as a matter of law and pleading, the burden, as it has been called, of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed, at the beginning of the trial, by the statements of the pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever. This rule is embodied in Section 101.
(ii) The burden of proof as matter of adducing evidence. The burden of proof in this sense is always unstable, and may shift constantly throughout the trial. This aspect of the burden of proof is contained in Section 102. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.
This being the test, the burden of proof cannot remain constant, but must shift as soon as he produces evidence which prima facie gives rise to a presumption in this favour. It may again shift back on him, if rebutting evidence is produced by his opponent. This being the position, the question as to the onus of the proof is only a rule for deciding on whom the obligation rests of going further if he wishes to win.
As observed by the Guwahati High Court, in a criminal trial, the burden of proving the prosecution’s case lies squarely on the prosecution and this general burden never shifts. The defence version may even be false; nevertheless, the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving the case beyond ail reasonable doubt. (Md. Alimuddin v. State of Assam, 1992, Cri. L.J. 3287)
Chapter VII, S.101 to S.114 of Indian Evidence Act deals with the provisions of "burden of Proof".
The word 'burden of proof' has not been defined in Evidence Act. It is a fundamental principle of criminal jurisprudence that guilt of accused is to be proved by the prosecution, and an accused should be presumed to be innocent.
The expression burden of proof is explained in S.101 of Indian Evidence Act as, " 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 two parties has to prove a fact. The answer to this question decides the question as to burden of proof.
Meaning of 'Burden of Proof':
In short, the burden of proof means the obligation to prove a fact. Every party has to establish fact which go in his favour or against his opponent and this is the burden of proof. Evidence Act lays down some principle of burden of proof of general nature.
Principle of Burden of Proof:
Theoretically the basis is divided into two parts – A) Concept of onus probandi
B) Factum probans
Thus, together how to prove facts and who shall prove or who shall prove and to what extend? Burden of proof is constant. Onus shifts. It consists and means that what is to be proved is fixed. e.g. burden is constant and who shall prove that is to be decided.
This liabilities and responsibilities to prove the fact is known as onus (burden) which shifts from shoulder of one party to the shoulder of another party. Burden of proof is always constant because it has reference to ingredients and concepts while onus shifted from shoulder to shoulder.
The rule of burden of proof in civil and criminal cases is of different nature. In civil proceedings the party who alleges certain things must prove his case, but proving beyond doubt is not necessary. In criminal cases however the guilt of the accused is to be proved beyond reasonable doubts otherwise the accused gets benefits of doubt. Cardinal (Important) rules as to burden of proof - Section 101, 102 and S.103 of the Indian Evidence Act, Provides three types of cardinal rules as burden of proof.
S.101 of Indian Evidence Act explained Burden of Proof as under:
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to 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.
Illustration
(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.
Supreme Court in Jarnail Sen vs State of Punjab A I R 1996 SC 755 held that in Criminal Case, the burden of proving of the guilt of the accused beyond all reasonable doubt always lies upon prosecution, and therefore if it is fails to adduce the satisfactory evidence to discharge the burden, it cannot fall back upon evidence adduced by the accused person in support of their defence to rest its solely thereupon.
S.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.
Illustration
(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.
This section tries to locate the party on home burden of lies. the burden of proof lies upon the party whose case would fail. if no evidence is given on either side.
Case: Triro vs Dev raj A I R 1993 J&K 14.
In this case when there was a delay in filing the suit, the defendant had taken a plea of limitation period. the plaintiff was in position to know the cause of delay the burden of proving that the case was within prescribed limit was on the plaintiff.
S.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 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.
The principle of section 103 is that whenever a party wishes is the court to believe and act upon the existence of the fact, burden lies upon him to prove that fact .If party wishes to the Court to believe that his opponent has admitted a fact burden lies upon him to prove that the fact of admission.
Particular Cases with reference of burden of proof. Special Rules:
These principles are called rule of Convenience of burden of proof which are covered under section 104 to S. 113 and section 113a and 114a.
Section 104 onwards lay down such rule where burden of proof is laid by la on specified persons, that is why Section 101 to 103 are known as general rules relating to burden of proof while section 104 to 113 are known as special rules relating to burden of proof.
There are some exceptional cases where burden of proof is different from burden of introducing evidence.
When the parties have laid evidence in support of their respective cases, the doctrine of burden of proof loses its significance. Its importance comes to an end and it simply remain a question of academic interest.
S.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 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.
Section 104 provide, the proof of fact on which evidence become admissible, Where the admissibility depends upon the proof of burden of another fact the party who wants to prove it will have to prove the fact on which admissibility depends.
S.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, (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.
The burden of proving the circumstances bringing the case under section 335 lies on A.
Section 105, thus provides that, if the accused claims that each case comes within any of the recognized exception the burden of proving that lies on him.
An important question often considered in this regard in judicial decisions, that whether the nature and extent of burden on the accused in a criminal case, the accused pleads benefit of exception is exactly the same as nature and extent of burden on the prosecution in a criminal case.
On this issue there is a consensus of opinion among the courts that the accused is not required lead evidence and to prove his defence beyond reasonable doubts and his ONUS/ burden is discharged, if he succeeds in mere balance of probability. If he succeeds in proving the probability (Preponderance of Probability).
Case Law: Woolmington v. Director of Public Prosecutions (1935 A.C. 462.)
This case actually reflects the change in law. In this case, Wool was charged for murdering his wife. He admitted before the court that she was killed by the bullet fired from the rifle which he was handling, but stated that he pressed the trigger involuntarily, while enduring to induce her to return and live with him otherwise threatening her that he will shoot himself.
Wool was convicted of murder by trial court and appealed to the court for appeal but his appeal was dismissed on the ground that it was necessary for the accused to satisfy the jury about his innocence in all of circumstances, but on further appeal to the house of Lords, Wool succeeded and he was acquitted.
Lord Sankey observed; that “if it is proved that the conscious act of the prisoner killed the deceased and nothing else appears in the case, there is evidence upon which the jury may find him guilty of murder”.
Throughout the sets of the English Criminal Law, one golden threat is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, and if at the end or in whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal, no matter what the charges or where the trial, the principle that the prosecution must prove the guilt of the prisoner is a part of common law of England and no attempt to whittle it down can be entertained.
In this case, the house of lords overruled the previous cases, the previous authorities which made him to satisfy the jury about his innocence, Woolmington laid down clearly that general burden to prove guilt of accused beyond reasonable doubt rest on prosecution and never shifts. Court held this rule as a part of Common Law of England.
Decision of Woolmington was approved by Allahabad High Court (full bench) in Prabhu v. Emperor- The court says that decision in the Woolmington case is not inconsistent with the law in India and Woolmington provides a valuable guideline to the correct interpretation of Section 105 in Indian Evidence Act.
Gist of Section 105: That it is not for the prosecution to anticipate all possible defences and then prove the non-existence of circumstances giving rise to possible defence. It is for the accused to put forward such a defence. This he can do when pleading a charge or by cross-examining of witnesses of prosecution or in answer to the question which court may put on the
accused, he may plead and may give evidence himself also. If on the basis of evidence given by accused, the accused is successful in plea of his defence then there is no difficulty on the court to decide in his favour. If no evidence is given by the accused, he can still ask the court to consider his plea of defence in that light and the prosecution fails he is entitled. If there is no plea, no cross examination and if accused evidence is disclosing some defective evidence in favour of accused it may be taken. Burden under 105 need not be discharged only by calling the evidence. Burden of proof means placing evidence before the court to prove the fact and this evidence may be proved either by one party or by another party and after all the burden laid on prosecution in criminal case is to be prove the guilt of accused person beyond reasonable doubt. Once a reasonable doubt is there, burden is on prosecution as laid down in Woolmington. Accused onus shall be deemed to be discharged a prima facie case in his favour or succeed in balance of probability.
S.106.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.
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 traveling on a railway without a ticket. The burden of proving that
he had ticket is on him.
(c) A does an act. The circumstances put by court by prosecution are such that a reasonable inference can be drawn that A has done this act with particular intention. If A plead that he had acted with different intention other than that circumstances suggest, burden of proof under S 106 will be upon him, because A’s intention will be a psychological act with in his knowledge.
(d) A is charged for offence of travelling without ticket and when asked he says that he bought but lost it accidently then the burden of proof that he had a ticket lies upon him because this fact as to from where he bought the ticket and how he entertained is specially with his knowledge.
When a particular fact is within the knowledge of particular person, burden of proof is upon him. This section lays down the rule of common sense of convenience. In illustration burden of proof on prosecution mean reducing the trial to an obsolete. It would be very easy for the
accused to prove about the ticket. Section 101 lays down a rule that in criminal cases the burden of proof is upon the prosecution. Section 106 is not intended to relief the prosecution to its duty. It doesn’t intend to override the basic principle of jurisprudence that accept in very exceptional case that burden of proof in a criminal case is on the prosecution and it never shifts. On the contrary it is designed in Indian Evidence Act just for the purpose of convenience to meet those cases where it is impossible or at least very difficult for the prosecution to prove fact which are exceptional, specially within the knowledge of the accused and which he can prove without any difficulty and inconvenience.
Section 106 should be interpreted in a common sense way and in applying it balance and convenience must be taken in account. Section 106 is interpreted otherwise it may lead to a very misleading conclusion. For example, that in murder case the burden of proof lies upon accused that he did not commit murder. The legislature doesn’t intend to overrule the basic principle of criminal law.
The word Specially means the facts within affirmatively or negative which are exceptionally within the knowledge of the accuse and which he could prove without much difficulty. For example, Section 106 illustration d, the word Specially means the knowledge in the nature of something peculiar. It means facts exceptionally with in knowledge.
The person who is having special knowledge of the fact under Sec 106 has to appear as witness in the witness box and give evidence, if he does not turn up there may be an adverse presumption drawn against him.
Case: Eshwarai vs Karnataka 1994 SC.
In this case court held that where a man and woman were found hiding under the bed in a bedroom of the person who was lying dead of injuries the burden of proof lies upon them to explain their presence and also the circumstances in which the deceased met his death.
S.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.
Sec 108 is a proviso to Sec 107. Sec 107 deals with the continuation of the things or state of things. Once a thing or state of thing is proved to have existed the law presumed to its continuance that thing or state of thing ordinarily last or alive unless contrary is proved.
Sec 107 deals with the presumption of continuance of human life, while Sec 108 deals with the presumption of death. Sec 108 is an exception to Sec 107 and so where Sec 108 is attracted Sec 107 can have no application.
Case: Subhash Ram Chandra v. Union of India (AIR 1973 Bom 64)
S.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.
Principle:
Section 108 lays down that when it is proved that a man 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 lies on the person who affirms it. Whereas the presumption under section 107 is rebuttal, the presumption under section 108 is about to fact of death. In order to qualify the latter presumption, it has to be proved that the man in question has not been heard of for seven years by those persons who would naturally have heard of him, and they have taken all steps to trace him out and his whereabouts. Both presumptions under sections 107 and 108 come into play after a suit is instituted.
Presumption:
The presumption under this section is that if a person has been unheard of for a period not less than seven years, howsoever long the period of disappearance may be the only presumption and conclusion possibly would be that the person died when the question arose, that is the date of plaint, So long as the dispute is not raised before any Forum and in legal proceedings the occasion for raising the presumption does not arise.
No presumption as to time of death:
The presumption under this section only extends to the fact of death of a person but not that at what time the man died. “The exact time of death is not a matter of presumption but of proof of evidence.” In a case, where only a period of 4Vi years had elapsed, section 108 was not applicable; the presumption under section 108 could not be drawn. In Md. Sharif v Bande Ali their Lordships of the Allahabad High Court held that “the only presumption is that ‘M’ is dead.
There is no presumption that he died in the first seven years or in the last seven years. The presumption merely is that he was dead……… the burden of showing
that he was alive being thrown upon the defendant if it was necessary for them to do so.” The Supreme Court in other cases also, held that there is no presumption of the exact time of death and the date of death has to be established on evidence by the person who claims a right for the establishment of which that fact is essential.
Even, otherwise, court may, in the circumstances of each case, make a presumption even regarding time of death. Where the death of a woman was not in question under section 108 the court shall presume that she was dead having not heard of for the period of seven years, it is itself not the ground to presume that she had died seven year prior to the date of institution of suit.
Compassionate appointment:
The question relates to time limit of five years prescribed in relevant rules for seeing compassionate appointment. For the purpose of deciding the case, assumption made that five years to be removed after seven years under section 108 had expired and thus the request for compassionate appointment was beyond time-limit of five years prescribed in relevant rules.
Suggested Readings:
1. Indian Evidence Act, 1872 (Relevant Statutory Provisions) 2. Monir : Law of Evidence
3. Batuk Lal : Law of Evidence
4. Ratan Lal & Dhiraj Lal : Law of Evidence 5. Avtar Singh : Principle of Law of Evidence 6. Tandon : Indian Evidence Act
7. R. Dayal : Indian Evidence Act
