Notable principles for guidance on the burden of proof

In Collector of Customs, Madras and Ors. v. D. Bhoormall, MANU/SC/0237/1974, the Supreme Court observed as under:

"31. It cannot be disputed that in proceeding for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it "all exactness is a fake". El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.

32. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Batch v. Archer (1774) 1 Cowp. 63 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden.

IN THE HIGH COURT OF DELHI

W.P. (C) 3324/2019, CM No. 15291/2019, W.P. (C) 7334/2019, 

Decided On: 20.05.2020

Prithvi Singh  Vs. Asst. Commissioner (South), Govt. of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

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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

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Notes on Estoppel- S 115 of Indian evidence Act

S 115 of Indian evidence Act:-

When a person by his declaration,act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief,neither he nor his representative can be allowed to deny truth of that thing in a suit or proceeding between himself and such person or his representative.

Principle of S 115 :- In simpler language,a person can not be allowed to say one thing at one time and the contrary at another: He can not blow both hot and cold at the same time. It is not necessary

to prove that he acted with any fraudulent intention. He will be estopped if he himself was acting under a mistake or misapprehension.

This section does not apply where the statement relied upon is made to a person who knows the true facts and is not misled by the untrue statement .There can be no estoppel if true facts

are known to both the parties.
Read important judgments on estoppel
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Whether accused can be convicted on sole evidence of investigation officer in respect of recovery of counterfeit currency?

Mr.Sunil Kale (PW14) has stated that pursuant to the
information   given   by   the   accused   No.1­Ranjana   earlier   on
24/10/2009, she on   25/10/2009 led  the police  party  and the
panchas to the house of the appellant.  That, this witness took the
search of the house i.e. hut of the appellant and found currency
notes of Rs.27,341/­ and four fake currency notes of Rs.500/­
denomination. The suggestion that he had actually not taken the
accused No.1­Ranjana to the house of the appellant, as put to him
in the cross­examination, was denied by him.   Interestingly, no
panch witness in support of the alleged seizure of the counterfeit
currency   notes   from   the   house   of   the   appellant   have   been
examined.  No reason for non­examining the same has been given.
Thus, there is only the evidence of the Investigation
Officer ­ Sunil Kale (PW14) in support of the allegation against the
appellant.  There is no explanation even before this Court, as to
why the pancha witnesses to the alleged recovery have not been
examined.
 I have carefully considered the matter.  There is no rule
certainly not of law ­ that the sole testimony of the Investigating
Officer   would   never   be   enough/sufficient   to   prove   the   fact   of
recovery   of   incriminating   articles   from   the   possession   of   an
accused.   However, here the prosecution claims that the recovery
was effected in the presence of two independent witnesses and

none of these two witnesses has been examined.  Non­availability
of evidence is one matter, but availability of evidence and holdingthe same back, is quite another.   In the instant case, since no
explanation   at   all   has   been   given   for   not   having   examined
independent   witnesses   ­   in   spite   of   associating   them   with   the
search operation ­ it would be unsafe to place reliance on the
evidence of P.W.No.14.  It would be legitimate to presume, that the
pancha   witnesses,   if   had   been   examined,   would   not   have
supported the case of the prosecution and that, that is why they
were held back.
In these circumstances, the trial Court ought not to
have   convicted   the   appellant   only   on   the   testimony   of   the
Investigating   Officer.   This   is   particularly   so,   because   the
prosecution case, when viewed as a whole, suffers from several
other   infirmities   and,   therefore,   clearly   the   evidence   of   the

Investigating Officer cannot easily and blindly accepted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.863 OF 2012
Manjur Samsuddin Shaikh
V/s.
The State of Maharashtra
CORAM : ABHAY M. THIPSAY J.
DATED  : 30TH  JANUARY, 2015
Citation; 2015 ALLMR(cri) 4274

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Whether principles applicable to Pardanashin lady can be applied to illiterate widow/lady from rural area?

Evidence - Burden of proof - Sections 101, 102, 103 and 104 of Indian Evidence Act, 1872 - Present appeal filed for challenging order of execution of sale-deed - Whether Rules regarding Pardanashi lady would apply equally to ignorant and illiterate Appellant - Held, burden of proof and heavy onus lie upon Respondent who seeks to enforce agreement for sale - By seeking decree of specific performance when such document had been denied by Appellant who was illiterate widow lady of rural area - Principles applicable to Pardanashi lady had to be applied to case where Appellant was illiterate widow/lady from rural area - Not much difference in two types of ladies - Appeal allowed.
Equivalent Citation: 2013(8)ADJ617, 2013 (100) ALR 621, 2013 121 RD228

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 772 of 1979

Decided On: 04.04.2013

Tika Ram and Another Vs.Daulat Ram and Others

Hon'ble Judges/Coram:Sudhir Agarwal, J.

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Questions and answers on evidence law for Judicial service Exam

Que. No. 1 : What is evidentiary value of uncommunicated statements ?

Ans:- The term statement in Section 18 to 21 of Evidence Act has been used in its primary meaning namely something i.e. stated and communication is not necessary in order that it may be a statement.  Exh.No.6 is a copy of letter written to office of Municipal Board Bangalore being statement can be used as an admission u/s 17 to 21 of the Act even though it has not been communicated to office of Municipal Board. (A.I.R. 1973 My. 280 Veerbasavaradhya .v/s. Devotees of Langadagudi Mutt) 


Que. No. 2 : What is evidentiary value of admission made in written statement ?

Ans: As to admission of defendant No.1 to the effect that he has admitted claim of plaintiffs in written statement, same cannot be held to be binding on defendant No.2. It is no evidence against him. (Braham Raj Singh .v/s. Smt. Braham Raj  Devi A.I.R. 1982 HP 57)


Non filing of written statement by defendant would not amount to admission of all facts pleaded in the plaint by plaintiff. (Messrs Shri Krishna Gyanoday Sugar Ltd. .v/s. State of Bihar AIR 1975 Patna 123)  

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Complete study material on Evidence law

Oral & Documentary Evidence

CHAPTER-I

ORAL EVIDENCE

The facts judicially noticeable and facts admitted are need not to be proved. Oral and documentary evidence are not only media of proof. This chapter deals with the oral evidence only. It enacts two broad rules regard to oral evidence: firstly, that all facts except contents of documents may be proved by oral evidence, and secondly, that oral evidence in all cases must be direct and not hearsay.

The meaning of expression “oral evidence” is given along with the definition of the term “evidence” in Section 3 of Indian evidence act as-: “Evidence” means and includes -:

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) [1][All documents including records produced for the inspection of the Court] such documents are called documentary evidence.

Section 59 of the Indian evidence act reads as-: All facts, except the contents of documents, [or electronic records,][2]may be proved by oral evidence.

Principle: this section lays down that all facts may be proved by oral evidence, except the contents of a document. The section is rather loosely worded as it makes an unqualified statement as regards the exclusion of oral evidence to prove the contents of a document. The true position is that oral evidence can be led as evidence relating to documents under section 65.

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