This article has been written by Peuli Chakraborty, from AMEX Law College, University of Burdwan, WEST BENGAL

Table of Contents

Introduction

It has nowhere been codified regarding the concept of Burden of Proof, under the Indian Evidence Act, 1872. However, the concept of Burden of Proof refers the parties concern or duty to substantiate a matter of fact, based on which the court shall ultimately reach out to a conclusion. The concept of Burden of Proof has been set forth, under chapter 7 of the Indian Evidence Act, 1872.

The general rule includes, the burden of proof lies on the person, who’s the prosecution. However, when a person is charged with anything, that is pertaining to anu any crime, in that case, that person is supposed to assert his evidence, regarding the claim, brought against him, under any general exceptions, as vested under the Indian Penal Code or other special law. The prosecution here is required to establish the guilt and afterwards, the entire burden of proof lies on the libellee. This very provision applies only in case of Criminal Offences.

Let’s dig into the topic, in this article, where the burden of proof, lies on the accused or the censured.

Meaning of Burden of Proof

Basically, burden of proof denotes the liability or responsibility of the party, to prove the statement, as claimed by the party, with the help of ample evidence, in a legal proceeding. The person, claiming the statement, before the court of law, is accountable to prove his statement, as claimed by him ( the authenticity behind the statement).

In case of a civil trial, the burden of proof falls on the plaintiff and in case of a criminal trial, the prosecution is supposed to substantiate the rationale behind the contention.

Illustration –

• A alleges B, of committing murder of C, in a court of law. Now A, who claims B to have committed murder of C, is supposed to substantiate the accuracy behind his allegation, that B actually is guilty of committing murder.

Principles

Principle of Onus Probandi – it states that the party, making the affirmative claim, is required to substantiate it.

Factum Probans – Factum Probans refers to the evidence or the fact, that is put forward,

Onus Probandi dictates that the party making an affirmative claim must prove it. This burden rests on the side seeking to support their case with a specific fact they claim to know. Factum Probans is the actual evidence or proof presented to substantiate a claim in a legal proceeding.

Example – Factum Probans is a fact, offered in evidence, as a proof of another fact.

In addition to this, the concept of burden of proof is based on the maxim Ei incumbit qui delicit con qui negat, which refers that the the burden of proof lies on the person who’s asserting the fact to be authentic and not who negates or who is negating.

Burden of Proof ( in case of Criminal Litigation )

In a criminal proceeding, the burden of proof entirely lies upon the prosecution. The prosecution is supposed to assert that the accused is guilty. Furthermore, the case must be beyond a reasonable doubt ( as claimed by the prosecution ).

Burden of Proof ( in case of Civil Litigation )

In case of a civil litigation, the burden of proof lies upon the plaintiff. If the plaintiff somehow fails to assert the matter of fact or due to lack of sufficient evidence, on the part of the plaintiff, the defendant shall prevail.

Sec 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.”

In accordance with sec 101, The person, who wants to obtain a judgement, from the court of law, by the judge, as to any legal right or liability of regarding any fact, that the prosecution believes to be authentic in nature, the person, who thinks the fact to be authentic, is supposed to assert the same. The burden of proof, lies on that particular person, whoever wants to prove the claimed fact.

Example – If A is of the opinion, that B has committed the kidnapping of his daughter, then A is required to prove the same.

If Priya claims, that the immovable property belongs to her but Anushka has acquired it fraudulently, then Priya needs to prove that mandatorily, that Anushka has acquired it fraudulently.

Burden of Proof always lies on the prosecution. Prosecution in the sense, who claimed the fact to the true and genuine. He is supposed to substantiate the rationale behind his words, that the censured should be blamed. If the prosecution cannot substantiate the authenticity behind his statements, the case might get dismissed ( Jarnail Singh v/s State of Punjab).

Sec 102 – On whom burden of proof lies

The party, whoever alleges the other party, if, fails to produce a piece of evidence, supporting his statement, as raised before the court of law, the party of opposition then, shall prevail.

Illustration – if X alleges before the court of law, that Y broke into his house ( i.e he trespassed his house), while X’s wife was at home, then X is required to prove the authenticity behind his statement.

Triro and Dev Raj

Due to the impediment to constitute a suit, the limitation of the period was prayed by the defendant before the court. The plaintiff was supposed to assert the cause of impediment and assert if the case was within the given period.

Sec 103 – Burden of proof as to particular fact

When it comes to a particular fact, related to the main person, then the person must prove the truthfulness behind the statement.

Illustration – A informs the court, that B is guilty of causing grievous injuries to C and he ( B ) mercilessly beat C, on Saturday afternoon, in Kolkata. However, B, in reply to that statement, says, that he wasn’t even present in Kolkata, on Saturday, since he was in Chennai, at that particular time.

Here A needs to prove that B caused the injuries and B needs to prove his statement too, that he was in Chennai at that time.

Sec 104 – Burden of proving the fact to be proved to make evidence admissible

If a person wants to present certain evidence or if he wants to substantiate something, due to which, he’ll have to prove another statement.

Illustration –

F, in the court of law, claims that G made a dying declaration. In order to prove the dying declaration, F needs to prove that G had actually died.

Sec 105 – Burden of proving the case of accused comes within exceptions

This sec acts as exception to the general rule of substantiating by the prosecution. Basically it states that, in case of a criminal proceeding, when the accused is guilty of committing a criminal conduct, the burden of proof gets switched towards him ( the accused ), to substantiate, whether the allegation falls under any of the general exceptions of the Indian Penal Code, 1860 ( general exceptions, sec 76 – 106 ). In this scenario, the prosecution is supposed to establish the guilt of the accused just and afterwards, the burden of proof lies upon the accused, to assert, that the allegation falls within any of the general exceptions.

It must be included, that, sec 105 is applicable, in case of any criminal proceeding and the onus of proof, here, lies on the accused.

Illustration –

X is charged under sec 354B of the Indian Penal Code. He informs the court, that, on account of unsoundness of mind, he didn’t have the idea regarding the seriousness of the act. Here the burden of proof, falls on X.

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.

KM Nanavati v/s State of Maharashtra

Nanavati was alleged of committing murder of Prem. The general defence of grave and sudden provocation was claimed by Nanavati. Apex court here emphasized the concept of presumption of innocence, untill proven guilty, unless and until the prosecution proves the guilt of the accused. However, as soon as the general exception has been claimed by the accused, the burden of proof was shifted to the blamed at once.

However, the accused miserably failed to assert the general exception, as claimed him ( i.e the sudden provocation) and consequently got convicted under sec 302 of the Indian Penal Code.

Sec 106 – Burden of proving the fact especially within the knowledge

If any person claims knowing certain facts or things, then he/she is required to assert that.

Illustration –

Reena is Charged with not carrying about a ticket, while travelling on the train. Reena, in this case, is required to prove, that she actually booked a ticket but somehow, she lost it.

Eshwaraiah and Anr. v/s State of Karnataka ( 1994 )

A man and a woman were discovered to have hidden under a bed of a bedroom. The bedroom was of that person who was discovered dead, on that particular bed with grievous injuries. Now, both the man and woman is supposed to prove how come they got under the bed and due to what reason the deceased person’s demise took place.

The predominant principle or the general rule is the prosecution substantiating the guilt, as claimed by him, against the accused. The elementary principle is presumption of innocence, until proven guilty. This principle is meant for the accused person and the rationale behind it, that the accused shall not be proven guilty, unless and until the prosecution substantiates the claim and allegation to be sterling.

However, if the accused points out an exception, then the burden of proof immediately shifts to the accused.

Nevertheless, the prosecution is supposed to prove his statement, without reasonable doubt. If there is an existence of any apprehension, in that case the censured, might get prevailed.

On the flip side, sec 106 expounds that, for any fact which is specially within the knowledge of any person, the burden of proving the fact lies upon a particular person.

Basically, it elucidates, if any person is aware of any fact or that is within his knowledge, he is supposed to prove the fact himself ( without reasonable doubt) and not any other person, who doesn’t know it.

For instance, the defendant is in possession of a property in dispute. In this scenario, the defendant is duty bound to prove that he had acquired the property lawfully and the burden of proof is upon him.

As a consequence, sec 105 along with sec 106, fall within the purview of exceptions to the general rule of burden of proof, as enumerated under the Indian Evidence Act, 1872.

Conclusion

The concept of Burden of Proof predominantly deals with the prosecution. As analysed in the above mentioned elaboration or interpretation, that the burden of proof entirely rests on the prosecution. However, there is a converse elaboration, where the accused is supposed to assert the matter of fact and elucidate, the unsophistication behind the statement. This concept is invoked when it comes to general exceptions. The prosecutor is supposed to prove the matter of fact, beyond any reasonable doubt and if such thing takes place, the case might get shifted in favour of the accused/defendant. This is due to the Indian Judicial system, that is in compliance with the principle of presumption of innocence, until proven guilty.