Burden of Proof

Burden of proof

The Law of Evidence is a critical piece of legislature which supplements Court’s proceedings. Evidence is the material that establishes a claim or an assertion and enables the Court to come to a just decision. Oral or documentary evidence should be produced before the Court to prove or disapprove respective contentions of both parties. The rule of evidence requires the respective parties to place the best evidence in hand to establish their assertion beyond the reasonable doubt. The Law of evidence is said to be the law of the forum or the Lex fori.[i]

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act, states that when a person is bound to prove the existence of a fact, the burden to provide evidence for the same lies upon him. Chapter VII of the Act deals with provisions under burden of proof. The term “burden of proof” isn’t defined in the Act, however it is the rudimentary principle of criminal that, that the presumption of innocence lies with the accused unless proven otherwise.  

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was made by A, the onus to provide evidence to support such assertion lies upon him.

Principles of Burden of Proof

The principle of Burden of proof is based on the concept of onus probandi (burden of proof) and factum probans (proving a fact). While the burden of proof remains constant, the onus for the same shifts from one party to another. The facts that are required to be proved are those which are not self-evident in nature. In the case of Jarnail Sen v. State of Punjab[ii] that in, if the prosecution fails to adduce the satisfactory evidence to discharge the burden, they cannot depend upon evidence adduced by the accused person in support of their defense

Initial Burden of Proof:

In criminal cases, the principle remains constant that the initial burden is on the prosecution to establish that the accused has committed a crime. If the prosecution fails to establish beyond reasonable doubt that the accused is guilty, the accused is entitled to an acquittal.[iii] If burden of proof is put on the shoulders of the wrong party, the Supreme Court states that this would vitiate the entire judicial system.[iv] Wherein, a landlord seeks eviction of the tenants on the grounds of bona fide personal need, the onus to establish the same is on him[v]. In the case of Banwari Lal v. Road transport, where good were lost by the carrier, the burden lies upon him to establish that there was no negligence on his part.[vi] 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.[vii] In the case of Triro v. Dev Raj,[viii] there was a delay in filing the case going beyond the limitation period, the onus to justify the delay was on the prosecution.

In matrimonial cases, the principle of burden of proof relating to civil cases is applicable. A party seeking divorce will have to prove the grounds for divorce such as desertion, cruelty or infidelity.[ix]

Section 102

This section attempts to locate the party, upon whom the burden of proof lays, the burden of proof lies upon the party whose stance will fail if no evidence is produced by either of the parties. The burden of proof lies on the party who affirms a fact rather than the party who denies it.[x] In the case of insanity or unsoundness of mind, the law presumes sanity until proven otherwise.[xi] In the case of Ram Raja Ram v. Dhruba Charan Jena, the party claiming no consideration under Section 118 of Negotiable Instruments Act must provide proof for the same.[xii]

Illustration: A sues B for possession of family heirloom, which A asserts was left by his family in the will, if no evidence is provided by either side, B will retain the family heirloom.

Section 103

The section imposes the responsibility of burden of proof upon the party that wishes the Court to believe and act upon the existence of a fact. This principles stays unaffected by the fact that a particular fact being asserted is negative or affirmative.

Illustration: A stole B’s car. B subsequently admitted the same to see. For the Court to believe the same, A will have to provide evidence that proves admission of theft of car committed by B.

Section 104

This section states that when admissibility of one fact depend upon the existence and admissibility of another fact, the party which wants to prove it will depend upon the fact that makes the subsequent fact admissible. 

Illustration: A wants to prove dying declaration of B, A must prove B is dead.

Section 105

This section refers to the exceptions provided to the accused that will serve as benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws’. The general principle requires the Court to presume innocence of the accused until proven otherwise and it is upon the prosecution to establish the guilt of the accused. Once the guilt is established, the onus then shifts to the accused who can take the defense of general exceptions in I.P.C.

In Pratap v Stare of U.P. where the probability that the accused had caused death in self-defense was held to be sufficient even though he had not taken his defense in the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the general exceptions can be discharged by showing a preponderance of probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who sets up the plea of self-defence, and in the absence of proof, it is not possible for the court to presume the truth of the plea of self defense.

The standard of proof upon the accused whilst claiming an exception under section 105 is comparatively lower than that upon a prosecuting party in similar circumstances. An accused may not have to bring forth evidence to prove innocence beyond a reasonable doubt. However, an accused when asserting that his particular circumstances fall within an exception under the said provision, he alone has the onus of proving the same.[xiii] 

Section 106

Under the said provision, any person who is said to be aware of a particular fact has the onus of proving such a fact is upon him. The section uses the term “Specially within knowledge” denoting that the possession of such knowledge also shifts the burden of proof upon the possessor.

An example would be the case of Eshwarai v. Karnataka[xiv] wherein a man and a woman were found in the bedroom of person who had been killed due to extensive injuries, the burden to prove the rationale of their presence was upon them. It was assumed that since they are present at the scene of the crime, they would specially have knowledge regarding the circumstances under which the death of the person was caused.

Burden upon affirmation:

A general trend that the Indian Evidence act follows is that of shifting the burden of proof onto a person who affirms a fact or assertion. The same is visible in various provisions of the act. The rationale behind the same is that if a person asserts something, he may also prove the same. Such instances can be found in sections 107 to 110. Section 107 states that if a person who was alive within the last 30 years is said to be dead by another person, the person affirming the same must prove the death. Similarly, under section 108, person who hasn’t been heard from in 7 years and is therefore presumed dead, the burden of proving that the person is on whomsoever affirms it. The situation is similar under section 109 which talks about establishing relationships between partners, landlords – tenants & principal – agents and under section 110 regarding assertions of ownership. Whoever affirms it, must prove it.

Presumption as to Burden of Proof

Section 111 to 114 lay down certain specific conditions that define the party upon which the burden of proof lies. These provisions envisage the exceptions to the doctrine of “Innocent Until Proven Guilty”.[xv] These enumerated conditions go against the doctrine by shifting the onus onto the accused to prove innocence, as opposed to the prosecution proving guilt. There are various examples in the Indian evidence act:

Section 111A

This sec. states that a person accused of the commission of certain offences under the Indian Penal Code such as conspiracies against the government etc. in a disturbed area is presumed to be guilty and must prove his innocence, thereby putting the burden of proof onto him.

Section 112

It lays down that in the event a child is born during the course of a marriage or within 280 days of its dissolution, he may be presumed to be the legitimate child of his father. This was characterized in the case of Smt. Dukhtar v. Mohd.Farooq[xvi] as the father would have the burden to prove that the child is not his or would owe the same obligations as he would to a legitimate child. 

Sections 113A & 113B

These create presumptions against the husband and his family in cases of allegations of harassment, cruelty and dowry death. The burden of proof is on the husband and his family to show innocence.

Section 114

It allows the court to presume certain facts such as that the possession of stolen property means that the person is the thief. Another example would be that when a person refuses to answer a question put to him in court, the presumption would be that if he had given the answer, it would be unfavorable for him. Various other cases have been enumerated in section 114 which allow for the court to presume the existence of certain facts and accordingly shift the burden of proof. These presumptions generally go against the generally established principles of burden of proof. The burden of proof is always upon the party against whom the presumption works.[xvii]

The general principle, when it concerns the burden of proof, is that the person who makes a particular assertion has the onus of proving the same. This is based on the rationale that the party who seeks to initiate action against another by the way of judicial dispute resolution must also be forced to prove why the other party must undergo the said process. The Indian evidence Act allows for the courts to shift the burden of proof onto the other party, in contradiction of the principle above, but only in specific instances. The threshold for proof also decreases in certain cases when that happens.

Frequently Answered Questions:

1. Under what circumstances the burden of proof is on the defendant?

In cases of Dowry death, custodial rape, absence of consent in rape, suicide of a married women, custodial death the burden of proof is upon the accused as opposed to the general principle that the burden of proof is placed on the party asserting a fact.

2. What is the doctrine of res ipsa loquitor?

The doctrine states that in case of negligence the onus to prove lack of negligence is upon the accused not on the claimant.

3. What is the burden of proving an exception?

In the case of Dayalalbhai v. State of Gujarat, the Court stated that the prosecution must prove beyond reasonable doubt that the accused has committed the offence, however the accused has an opportunity to rebut the claim by pleading insanity. Even if he fails to establish absolute insanity, if his statement creates doubts it will be enough to acquit the accused

Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje


[i] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad

[ii] AIR 1996 SC 755

[iii] Ouseph v. State of Kerala, (2004) 4 SC 446: A.I.R 2004 SC 2088

[iv] Rangammal v. Kuppuswami A.I.R 2011 SC 2344.

[v] SJE Benezar v. Velayudhan, A.I.R 1988 SC 746.

[vi] Banwar Lal v. Road Transport, A.I.R 1989 Pat. 303.

[vii] Md. Alimuddin v. State of Assam, 1992, Cri. L.J. 3287

[viii] Triro v. Dev raj A.I.R 1993 J&K 14

[ix] Dharam Dev v. Raj Rani, A.I.R 1985 Delhi 389.

[x] Madhusudan Das v. Naravanbhai A.I.R 1982 S.C. 114.

[xi] K. Kusuma Kumari v. Gandhi Surya Bhagvan, A.I.R 1982 A.P. 63.

[xii] Ram Raja Ram v. Dhruba Charan Jena, A.I.R 1982 Orissa 264.

[xiii] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad

[xiv] Eshwarai v. State of Karnataka 1994 SCC 4

[xv] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad

[xvi] Smt. Dukhtar v. Mohd.Farooq A.I.R 1987 SC.1049

[xvii] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad

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I am Anushka from O.P Jindal Global University, Sonipat, pursuing BA.LLB (2016). My major interest lies in Arbitration Law, International Law, Criminal Law, Intellectual Property Law and Corporate Law. Apart from legal interest, I am a dedicated social worker and President of Legal Aid based Ngo- Sarthak Disha Foundation. We focus primarily on women related issues and human rights issues. I am an ardent reader, my preference ranges from fiction to non fictional content. I dedicate majority of my time towards mooting, negotiation competitions and attending seminars on socio-political as well as environmental issues.