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General Concept of Burden of Proof
The responsibility to prove a thing is called burden of proof. When a person is required to prove the existence or
truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged and they need
to be proved before the court can base its judgment on such facts. The burden of proof is the obligation on a party to
establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For
example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such
conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In
general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but
burden of proof.

He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support
his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off
to another party.

SECTION 101 DEFINES BURDEN OF PROOF as follows - 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 important question is who is supposed to prove the various facts alleged in a case. In other words, on whom should
the burden of proving a fact lie?

The rules for allocation of burden of proof are governed primarily by the provisions in Section 101 to 105. The rules
propounded by these sections can be categorized as General rules and Specific rules.

Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says that 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.

For example, 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.
Another example - 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.

Facts can be put in two categories - those that positively affirm something and those that deny something.

For example, the statement, "A is the owner of this land" is an affirmative statement, while "B is not the owner of this
land" is a denial. The rule given in Section 101 means that the person who asserts the affirmative of an issue, the burden
of proof lies on his to prove it. Thus, the person who makes the statement that "A is the owner of the land", has the
burden to prove it. This rule is useful for determining the ownership of the initial burden. Whoever wishes the court to
take certain action against the opposite party based on certain facts, he ought to first prove those facts.

However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs
Legatt, 1836, a landlord suing the tenant asserted that the tenant did not repair the house. Here, he was asserting the
negative. But the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, Lord
ABINGER observed that in ascertaining which party is asserting the affirmative the court looks to the substance and not
the language used. Looking at the substance of this case, the plaintiff had to prove that the premises were not repaired.
Thus, the court should arrive at the substance of the issue and should require that party to begin who in substance,
though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and
the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden

of proof and onus of proof, which was explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the
burden to prove the main contention of party requesting the action of the court, while the second one is the burden to
produce actual evidence. The first one is constant and is always upon the claimant but the second one shifts to the
other party as and when one party successfully produces evidence supporting its case. For example, in a case where A
is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services
for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing
evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services
were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as
specified in the contract.

The next rule determines who has the onus of proof.

Rule 2 - As per Section 102, 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. The following illustrations explain this point

Illustration 1 - 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.

Illustration 2 - 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.

Rule 3 - As per Section 103, the person who wants the court to believe in an alleged fact is the one who is
supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular

For example, A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the
admission. Another example - B wishes the Court to believe that, at the time in question, he was elsewhere. He must
prove it. Further, as specified in Section 104, if a person wants the court to believe in a fact that assumes the existence
of another fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying declaration
by B. A must prove B's death. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove
that the document has been lost.

Specific Rules - These rules specifically put the burden on proving certain facts on particular persons
Rule 1 - As per Section 106, when any fact is especially within the knowledge of any person, the burden of proving that
fact is upon him. 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. For example, A is charged with traveling on a railway
without a ticket. The burden of proving that he had a ticket is on him.

Rules of Presumption - Section 107 and 108 say that if a person was known to be alive within 30 yrs. the presumption is
that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if
he had been alive, the presumption is that the person is death. But no presumption can be draw as to the time of death.
Sections 109 establishes the burden in case of some relations such as landlord and tenant, principle and agent etc.
Further sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.

Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It is the prosecution
who is required to establish the guilt of the accused without any doubt. At the same time, the accused is not required
to prove his innocence without any doubt but only has to create reasonable doubt that he may not be guilty. Section
105 specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of
IPC, the burden of proving that he is entitled to such benefit is upon him. For example, if an accused claims the benefit
of insanity in a murder trial, it is up to the accused to prove that he was insane at the time of committing the crime.

In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC explained this point. In this case, Nanavati was accused
of murdering Prem Ahuja, his wife's paramour, while Nanavati claimed innocence on account of grave and sudden
provocation. The defenses claim was that when Nanavati met Prem at the latter's bedroom, Prem had just come out
of the bath dressed only in a towel; an angry Nanavati swore at Prem and proceeded to ask him if he intends to marry
Sylvia and look after his children. Prem replied, "Will I marry every woman I sleep with? which further enraged Nanavati.
Seeing Prem go for the gun, enclosed in a brown packet, Nanavati too went for it and in the ensuing scuffle, Prem's
hand caused the gun to go off and instantly kill him.

Here, SC held that there is a presumption of innocence in favor of the accused as a general rule and it is the duty of the
prosecution to prove the guilt of the accused beyond any doubt. But when an accused relies upon the general exception
or proviso contained in any other part of the Penal Code, Section 105 of the Evidence Act raises a presumption against
the accused and also throws a burden on him to rebut the said presumption. Thus, it was upon the defense to prove
that there existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of murder.

Exception 2 - Admission - A fact which has been admitted by a party and which is against the interest of that party, is
held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made
the admission. For example, A was recorded as saying that he committed theft at the said premises. If A wants to deny
this admission, the burden of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain things. For example, as per Section 107/108,
court presumes that a person is dead or alive based on how long he has not been heard of. Section 109, presumes that
when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relationship
still exists and anybody who contends that such relationship has ceased to exist has to provide proof. Section 110
presumes that the person who has the possession of a property is the owner of that property. As per Section 113A,
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative
of her husband and it is shown that she had committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume,
having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such
relative of her husband. As per Section 113B, when the question is whether a person has committed the dowry death
of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the
dowry death.