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CHAPTER 8 Burden of Proof

Contents 8.1 General Rule 8.2 Meaning of Rule 8.2.1 In Civil Cases, Burden of proof on the Pleadings 8.2.2 In Criminal Cases, Burden of Establishing Guilt 8.2.3 On Whom Burden of Proof Lies 8.2.4 Burden of Proof as to Particular facts 8.2.5 Burden of proving fact to be proved to make evidence admissible 8.2.6 Burden of proving that case of accused comes within exception 8.2.7 Burden of proving fact especially within knowledge 8.2.8 Burden of proving death of person whom to have been alive within thirty years 8.2.9 Burden of proving that person is alive who has not been heard of seven years 8.2.10 Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent 8.2.11 Burden of proof as to ownership 8.2.12 Proof good faith in transactions where one party is in relation of active confidence 15 14 14 13 13 3 3 4 6 7 8 9 10 12

8.2.13 Birth during marriage conclusive proof of legitimacy 8.2.14 Court may presume existence of certain facts Key Terms Assignment Questions Short Questions

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CHAPTER 8 ) Burden of Proof

8.1General Rule The general rule is that he who asserts must prove.

Eg. If D has sold to P a horse with a warranty of soundness and P sues D for a breach of the warranty, it is for P to prove the horse unsound, for D at the outset to prove it sound. -

8.2 Meaning of Rule The expression burden of proof has two meanings:-

(1) The burden of proof as a matter of law and pleading that is the burden of establishing a case. )

(2) The burden of proof in the sense of introducing evidence. )

8.2.1 In Civil Cases, Burden of proof on the Pleadings The plaintiff or the defendant who, in substance, asserts the affirmative of an issue must prove it.

The burden of proof in this sense is fixed at the beginning of the trial and does not shift.

Section 101- Of the 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.

Illustrations

(a) 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 ) A B A B B

(b)A desires a Court to give judgment that he is entiled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, being true. A must prove the existence of those facts. ) A A B A B

Duty of accused in criminal case burden of proof guilt always on prosecution. In Sein Hla Vs. The Union of Myanmar Case, the judge decided that the above principle. That an accused person owes no duty to anybody and the

burden of proving his guilt remains through out the trial wish the prosecution who must prove such beyond all reasonable doubt.
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8.2.2 In Criminal Cases, Burden of Establishing Guilt

The burden of proof rests on the prosecution throughout.

Example-

On an indictment for murder the prosecution must prove (a) death as a

result of the voluntary act of the prisoner and (b) malice on the part of the prisoner. ) )

Burden of Adducing Evidence

In some cases the burden of proving certain issued rests specifically upon the accused,

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e.g-where the defense is insanity. where a special plea in Bar is raised.

8.2.3 Section 102- 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 given o neither side.

Illustration -

(a) 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, Bs father.Therefore the burden of proof is on A. )

(b) 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 Rulings. )

8.2.4 Section 103- Burden of Proof as to Particular facts -1

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 the proof of that fact shall lie on any particular person.

Burden of Proof as to particular fact

Illustration

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C.A must prove the admission.

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

8.2.5

Section 104- 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.

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Illustration (a) )

A wishes to prove a dying declaration by B, A must prove Bs death.

(b)

A wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.The burden of proving the death of the declarant is on the party who wishes to give secondary evidence of the contents of the document. )

8.2.6 Section 105- Burden of proving that case of accused comes within exception -

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him and the court shall presume the absence of such circumstance.

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Illustration (a)A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.The burden of proof is on A. )

(b)

A, accused of murder, alleges that, by grave and sudden provocation, he was

deprived of the power of self-control.The burden of proof is on A. )

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8.2.7 Section 106- Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations(a)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. )

(b) A is charted with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him. And the Court may place the burden on the party who has the best means of producing evidence on the point." )

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8.2.8 Section 107 - Burden of proving death of person whom to have been alive within thirty years. -

If there is proof that a man was alive 30 years ago, or less, the court presumes that he is still alive.

8.2.9 Section 108 Burden of proving that person is alive who has not been heard of seven years - If it is proved, however, that he has not been heard of for 7 years, the Court presumes that he is dead. There is no presumption as to the date of his death.

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8.2.10 Section 109 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, the burden of proving that they do not stand, or have ceased to stand to each other in those relation ships respectively, is on the person who affirms it.

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Section 110 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, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

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Possession is a right which may be separated from ownership. A person having possession of property, although he is not the owner, has a right to such possession against everyone except a person who can show a better title to possess where possession by the defendant is proved or admitted, the plaintiff must prove his own title, if he is able to do so, the defendant if called upon to prove a better title.

8.2.12 Section 111 Proof good faith in transactions where one party isirelation of active confidence -

Where there is a question as to the good faith of a transaction between parties one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

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Illustrations(a) The good faith of a sale by a client to a legal practitioner is in question in a

suit brought by the client. The burden of proving the good faith of the transaction is on the legal practitioner. )

(b)The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. )

8.2.13 Section 112- Birth during marriage conclusive proof of legitimacy --

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days (280) day

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after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to he marriage had no access to each other at any time when he could have been begotten.

Note-* This section, which is based in the maxim pate rest quem nuptials demons trant (father is he whom the nuptials indicate) creates, in favor of a child both born during continuance of a valid marriage between his mother and the alleged father, a conclusive presumption of legitimacy, in the of evidence of non-access between the parents.

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8.2.14 Section 114- Court may presume existence of certain facts -The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.

IllustrationThe court may presume-

(a)that a man who is in possession of stolen goods soon after the theft is either or has received the goods knowing them to be stolen, unless he can account for his possession. )

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as to illustration (a). A shop-keeper has in his till a marked kyat soon after it was stolen, and cannot account for its possession specially, but is continually receiving in the course of his business; )

Illustration The Court may presume that-

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;

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eg. A crime is committed by several persons. A, B and C, three of the criminals are captured on the spot and kept apart from each other. Each given an account of the crime implicating D, and the accounts corroborate each other in such manner as to render previous concert highly improbable; B C D A,

Illustration ( c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration; )

eg

A, the drawer of a bill of exchange, was a man of business. B, the acceptor,

was a young and ignorant person, completely under As influence; B A A

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Illustration (d) that a thing or state of things, which has been shown to be in existence

within a period shorter than that within which such things or states of things usually cease to exist, is still in existence; )

e.g.

It is proved that a river ran in a certain course five years ago, but it is known

that there have been floods since that time which might changes its course;

Illustration (e) ) that judicial and official acts have been regularly performed;

e.g.

a judicial act, the regularity of which is in question, was performed under

exceptional circumstance; -

Illustration (f) that a common course of business has been followed in particular cases;

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e.g

the question is, whether a letter was received. It is shown to have been

posed, but the usual course of the post was interrupted by disturbances; -

Illustration (g) that evidence which could be and is not produced would; if produced, be

unfavorable to the person who withholds it; )

e.g.

a man refuses to produce a document which would bear on a contract of

small importance on which he is sued, but which might also injure the feelings and reputation of his family; -

Illustration (h) that if a man refuses to answer a question which he is not compelled to

answer by law,the answer , if given would be unfavourable to him;

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eg. a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked; -

Illustration (i) that when a document creation an obligation is in the obligation is in the

hand of the obligor, the obligation has been discharged. )

e.g. a bond is in possession of the obligor, but the circumstance of the case are such that he may have stolen it. -

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KEY TERMS Burden of proof Pleadings Bond Consideration Self-defence Incapable Credit

Warranty Affirmative Insanity Grave and sudden provocation

Proviso Landlord Tenant Guilt

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Assignment Questions 1. Explain the burden of proof.Illustrate your answer 2. Explain burden of proofing fact tobe proved to make evidence admissible. 3. What is the burden of proving that case of accused comes within exception? 4. Explain burden of proving fact especially within knowledge. 5. What is meant by burden of proof as to ownership? 6. Define proof good faith in transactions where one party is in relation of active confidence. 7. Explain birth during marriage conclusive proof of legitimacy.

Short Questions 1. What is meant by burden of proof? 2. On whom burden of proof lies in civil case? 3. Define burden of proof as to particular fact?