Monday, 29 April 2019

Notes on Burden of proof (S 101-111 of Evidence Act)

The word "burden of proof" has not been defined in Indian Evidence Act.Burden of proof  in simple words means responsibility to prove a fact in a case or obligation to prove a fact.

Principles of burden of proof are mentioned below:
a) Onus probandi means burden of proof. Generally a party who alleges affirmative has to prove it.
b) Factum probans is proving the fact.

The phrase"burden of proof" has two distinct meanings:

1) 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 trial by statements of pleading, and it is settled as a question of law,remaining unchanged under any circumstances whatever.This rule is embodied in S 101.
2)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 burden of proof is contained in S 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,burden of proof cannot remain constant,but must shift as soon as he produces evidence which prima facie gives rise to a presumption in his favour.

Difference between burden of proof and onus of proof: Burden of proof lies on the person who has to prove a fact and  it never shifts,but onus of proof shifts.Such a shifting of onus is a continuous process in the evaluation of evidence.

Read important Judgments on Burden of proof : Click here


S 101 of Evidence Act: 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.


S 102 of Evidence Act: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.



S 103 of Evidence Act: 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 proof of that fact shall lie on any particular person.


Example: B wishes the court to believe that, at the time in question he was elsewhere. He must prove it.



S 104 of Evidence Act: 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.

Example: A wishes to prove dying declaration by B.A must prove B's death.


S 105 of Evidence Act: Burden of proving that case of accused comes within exceptions- When a person is accused of any offence, burden of proving existence of circumstances bringing the case within any General exceptions in IPC,or within any special exception or proviso contained in any other part of same code,or in any law defining the offence is upon him,and court shall presume absence of such circumstances.

Example: A accused of murder, alleges that by reason of unsoundness,he did not know the nature of act. Burden of proof is on him.


S 106 of Evidence Act:Burden of proving fact especially within knowledge - When any fact is especially within knowledge of any person, the burden of proving that fact is upon him.



Example: A is charges with travelling on a railway without ticket.Burden of proving that he had a  ticket is on him as said fact is especially within his knowledge.



S 107 of Evidence Act:Burden of proving death of person known to have been alive within thirty year - When the question is whether a person is alive or dead , and it is shown that he was alive within thirty years, burden of proving that he is dead is on person who affirms it.



S 108 of Evidence act: Burden of proving that person is alive who has not been heard of for seven years - Provided that when 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,burden of proving that he is alive is shifted to person who affirms it.



S 109 of Evidence Act: Burden of proof as to relationship in the cases of partners,landlord and tenant, principal and agent -

When the question is whether persons are partners,landlord and tenant, or principal and agent,and it has been shown that they have been acting as such, burden of proving that they do not stand, or ceased to stand,to each other in those relationship respectively is on person who affirms it.


S 110 of Evidence Act: Burden of proof as to ownership - When the question is whether any person is owner of anything of which he is shown to be in possession,burden of proving that he is not owner is on person who affirms that he is not owner.



S 111 of Evidence Act: Proof of good faith in transactions where one party is in relation of active confidence - Where there is a question as to good faith of a transaction between parties,one of whom stands to other in a position of active confidence,burden of proving good faith of transaction is on the party who is in position of active confidence.
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