ONUS PROBANDI

The term Burden of proof is derived from the latin term Onus Probandi. The phrase is used in
two distinct meanings in the Indian Evidence Act, 1872
1. the burden of establishing a case and
2. the burden of introducing evidence .

The term Onus probandi means “if a fact has to be proved the person whose interest it is to
proved, it should adduce some evidence, however slight, upon which a court could find the
fact he desires the court to find.” This kind of burden of proof is otherwise known as burden
of adducing evidence. It does not mean that the party has to call all conceivable or available
evidence. It merely means that the evidence he lays before the court should be sufficient, if
not contradicted to form the basis of judgment and decree upon that point in his favour. “The
burden of adducing evidence rests on the party who would lose if no evidence is led by any of
the parties.”

For example:
A files a suit on the basis of a bond. В admits the execution of the bond but pleads that the
bond was taken by practicing fraud upon him. In this case the execution of the bond is
admitted and so if no evidence is led by В on fraud. A will get the decree. В will lose.

Section 101 deals with burden of proof on pleading whereas Section 102 deals with the onus
of adducing evidence. The onus of adducing evidence is also known as onus probandi. It is
also called “right to begin.” When the onus of proving guilt is on the prosecution, it must be
proved beyond reasonable doubt and that onus never changes. The burden of proof of general
exception is on the accused person. Such burden can be discharged by showing
preponderance of probabilities.

In Anil Rishi vs Gurbaksh Singh, (2006) 5 SCC 558 it is held that in terms of Section 102 the
initial onus is always on the plaintiff and if he discharges that onus and makes out a case
which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if
any, which would disentitle the plaintiff to the same.

The Supreme Court in the Landmark case of Addagada Raghavamma & Anr. v. Addagada
Chenchamma & Anr., 1964 AIR 136 held that there is an essential distinction between
burden of proof and onus of proof; burden of proof lies upon the person who has to prove a
fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous
process in the evaluation of evidence.