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Provisions of Burden of Proof under Indian Evidence Act

9 min read

By Stuti Hasmukh Oswal

Published on: November 25, 2021 at 12:55 IST

Introduction

The term ‘Burden of Proof’ means when a person states something and considers it to be fact he or she needs to prove the statement made by him. This is an important concept integrated in the Indian Evidence Act, 1872. The concept of burden of proof is explained in Chapter VII of the Indian Evidence Act, 1872.

Section 101 of Indian Evidence Act

“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.”

The section states that if someone is desirous of obtaining a judgement or an order from the courts or authorities upon some facts which he thinks are true and correct that he is required to prove the same. Whoever is required to prove the said fact it is said that the burden of proof lies on that person. The following examples will help for understanding this concept better:

  • If Ram is of the opinion that Shyam has committed a crime and that he must be punished for the same, then it is upon him to prove that Shyam has committed the said crime.
  • Rita is of the opinion that a certain land belongs to her but Sita has occupied the same stating it is her land. If Rita decides to file a suit and obtain a decree stating that the land belongs to her then she is required to prove the same to the court. Hence, here the burden of proof is on Rita.

Section 102 of Indian 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.”

This section states on whom does the burden of proof shall lie. In a case or a suit, the burden of proof usually lies on the person who will suffer if the same is not proved. This means that it is necessary for a person to prove his case since he was the one who has filed a complaint/suit. Person filing such complaint or suit will have to bear the loss if he/she is unable to convince the court with the facts that they are stating. Illustration:

  • Sunil has filed a case stating that the land which is in possession of Anil belongs to him. Here, the burden of proof is on the one who will suffer if he/she does not prove the fact. Hence, if Sunil does not prove that the land belongs to him then Anil will continue to have possession of the land and Sunil will suffer by losing his land.

Section 103 of Indian 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 the proof of that fact shall lie on any particular person.” 

This section mainly talks about the burden of proof in relation to a particular incident or fact. If a person wishes that the court should believe the existence of a particular fact then it is upon him to prove the same. In simple words it means that if a person wishes the court to believe the story that he/she has narrated then he/she will require to prove the same to the court. Illustration:

  • Chirag says that at the time of his neighbour’s murder he was not at home and was at his uncle’s place. In this case it is upon Chirag to prove that he was at his uncle’s place.

Section 104 of Indian 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.

This section states that the burden of proof to prove a fact so that he can prove another fact or provide another evidence lies on the person who wishes to prove that another fact. This means that if  a person wants to produces certain evidence or prove something else which will require him/her to prove another set of fact or statement then he/she will be responsible to prove both of them. Illustrations

  • Nita states that Anita has made a dying declaration. In order to prove that Anita has made a dying declaration Nita will have to prove that Anita is dead. Hence, the burden of proof for both the fact lies on Nita.

Section 105 of Indian Evidence Act

Burden of proving that case of accused comes within exceptions.—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 Indian Penal Code, (45 of 1860), 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 circumstances.

This section states that the burden of proof lies on the accused in case where he states or defends saying that it falls under one of the exceptions. When a person is accused of an offense and the person pleads that there existed a circumstance then he has to prove the same. During such times it is presumed by law that there was absence of any such circumstance. Illustration:

  • Mr. Shetty is accused of murdering Mr. Gulati. Mr. Shetty pleads that it was not murder but self defense as Mr. Gulati was about to shoot him with his gun, then the burden of proof is upon Mr. Shetty to prove that upon grave and sudden provocation Mr. Shetty in his self defense killed Mr. Gulati.

Burden of proof in case of Civil Cases

When a person files a civil proceeding, it contains two things within it. The first one is the facts of the case and the second one being the legal reason. The burden of proof in such cases is upon the person who files such civil suit known as the plaintiff.

This means that if the plaintiff is unable to provide evidence and proof or is not able to convince the court that the facts are in existence or are true then even if the Defendant does not offer any defense or states anything he will win the case. Therefore, in such cases the defendants usually try to harm the plaintiff’s case in some way or the other rather that positively proving their side.

Burden of proof in case of Criminal Cases

Generally, the most important rule is that a person is innocent until proven guilty. Hence, it is the duty of the prosecution to convince the court the accused has committed a crime which means that the burden of proof lies upon the prosecution mainly. The burden of proof may change if and when the accused claims one of the exceptions to the crime, claims or states something.

In this case the burden of proof shall then lie upon the accused to prove such exception or claim. It is necessary for the prosecution to prove their case beyond reasonable doubt which means that the burden of proof upon the prosecution is quiet heavy and thus the accused or the defendant gets a good advantage.

Case Laws

  • M.S. Reddy Vs State Inspector of Police, A.C.B., Nellore[i] – Preliminary burden of proof falls upon the prosecution

In the above case it was held that the preliminary burden of proof falls upon the prosecution. It is unfair on the part of the defendant to be the one bearing the burden and it is important for the prosecution to establish its case upon its own findings. It gives an undue advantage to the prosecution if the defendants place their evidence first as this will only give a chance to the prosecution to poke holes and use strategies to get through things.

  • Savithri Vs Karthyayani Amma[ii] – Each party had to prove its allegations

In this particular case there was a question of execution of a will and it being executed by coercion. The court held that each party had to prove its allegations which means the one alleging that the will was executed by coercion has to prove the same.

  • Special Development Area Vs Pooran lal[iii] – Burden of proof lies on the complaining authority

In the present case a complaint was lodged stating that the person was carrying out unauthorized construction. A suit was filed upon which the court held that the burden of proof lies on the complaining authority and that it is for him to prove that the land belongs to him and that he is carrying out unauthorized construction.

  • Prakash Chandra Vs Managing director, ORTCO[iv] – It is upon him to prove the existence of the fact

This is a case where a person had filed a claim against the nationalization of the roads. In this particular claim the court held that if the person thinks show then it is upon him to prove the existence of the fact that it is not in the interest of the nation for road to get nationalized.

  • Mahboob Sab Vs Union of India[v] – The burden of proof was upon the person claim such a fact to be in existence

In this case a person was dead as he fell out from a moving train. A suit was filled upon which the defendants stated that the person was not a bonafide passenger as he did not have a ticket. The court held that the burden of proof was upon the person claim such a fact to be in existence and hence, the defendants were required to prove that the person was travelling without a ticket.

  • Ultratech Cement Ltd. Vs State of Rajasthan[vi] – It is upon the assessee to prove that it belongs to such exemption

In the above case where the issue is regarding the reimbursement of the subsidy that is availed beyond 50% of the tax payable and tax deposited together along with the interest the court held that it is upon the assessee to prove that it belongs to such exemption or such other exemption notification. 

  • Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors.[vii] – Burden of proof in relation with the electronic evidence being authentic and correct is upon the person producing the same

In this case the evidence was provided in electronic format. There was a question regarding the authenticity of the same. In the present matter the court held that the burden of proof in relation with the electronic evidence being authentic and correct is upon the person producing the same. The electronic document submitted is proving the fact that it was brought forth for shall also be taken care by the person upon who the burden of proof in relation with the electronic evidence lies.

Conclusion

The Indian Evidence Act, 1872 has explained the entire aspect in regard with burden of proof. Burden of proof varies in civil and criminal matters as their needs and requirements. The main principle is that a person who claims reliefs or any such orders or judgement from court, the burden of proof falls on that person unless the law specifically requires the other person to prove the fact’s existence or lead evidence. A person is deemed to be innocent until he is proven guilty by the court. Therefore, it is upon the Plaintiff to prove that the person has committed the offense.

Recently, the courts are receiving evidence majorly in electronic form. The sections are yet not that clear upon burden of proof with regards to such electronic evidence and proving the authenticity of such electronic evidence produced in the court.

ABOUT THE AUTHOR

Stuti Oswal is a 3rd year LLB student studying in AKK New Law Academy, Pune. She has also cleared her CS Executive and is now pursuing her Professional Level. “Do your best and leave the rest” is her mantra and she strongly abides by it. She is in love with the legal profession and aspires to explore as many areas of it as possible during her career.

Edited by: Aashima Kakkar, Associate Editor, Law Insider


[i] M.S. Reddy Vs State Inspector of Police, A.C.B., Nellore, Equivalent citations: 1991 (3) ALT 542, 1993 CriLJ 558

[ii] Savithri Vs Karthyayani Amma Appeal (civil) 4882 of 2007

[iii] Special Development Area Vs Pooran Lal, 1997 CriLJ 3484

[iv] Prakash Chandra Vs Managing director, ORTCO,  AIR 1980 Ori 122

[v] Mahboob Sab Vs Union of India  (AIR 2011 Kar 8)

[vi] Ultratech Cement Ltd. Vs. State of Rajasthan  (MANU/ SC/0530/2020).

[vii] Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. (MANU/SC/0521/2020)