Q. What do you understand by Burden of Proof?

On whom the does the burden of

proof lie? State the rules of determining Burden of Proof in a suit or proceeding.
When does the burden of proof shift to the other parties? Are there any exceptions?
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. 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.
General 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 person. 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.
Exceptions 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
defence's 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 defence 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.
Thus, when the presumption of the court is in favor of a party, the burden of disproving it
rests on the opposite party.