The Indian Evidence Act does not define the term "burden of proof." However, in
simple terms, the burden of proof refers to the legal requirement or
responsibility of the parties to establish the facts that will assist the court
in reaching a decision in their favour. Therefore, the duty to prove a fact in a
lawsuit is known as the Burden of Proof. The requirements under the burden of
proof are covered in Chapter VII of the Indian Evidence Act.
Under the Indian Evidence Act, 1872, sections 101 to 103 deal with the burden of
proof in general, whereas sections 104 to 106 deal with the situation where the
burden of proof is placed on a specific individual. The concepts of Onus Probandi
and Factum Probans
include the underlying principles of the burden
of proof. Onus Probandi is a general rule that requires a person asserting the
positive to prove it. A person who maintains an affirmative stance has the onus
probandi. The onus probandi is on the party seeking to strengthen his case with
a specific fact that he is said to be aware of.
Factum Probans and Factum Probandum
Order 6, Rule 2 of the Civil Procedure Code, 1908, states that the pleading
shall only contain important facts that must be shown in a concise form Evidence
is a relative term that refers to a connection between two facts: the fact in
dispute (factum probandum), or statement to be proven, and the evidential fact (factum
probans), or material corroborating the proposition. The former is inherently
hypothetical; the latter is advanced as fact in order to persuade the court that
the former is likewise true.
According to the fundamental premise of criminal law, the accused should be
deemed innocent unless proven guilty beyond a reasonable doubt. The prosecution
has the first burden of proving that the accused has committed a crime in a
In the case of the State of Rajasthan vs Sher Singh, 1994, it was held that it
was unlawful to examine defence evidence before prosecution evidence in criminal
In criminal trials, the prosecution bears the burden of proof. The prosecution
must show beyond a reasonable doubt that the defendant is guilty until the
prosecution proves otherwise. The court shall assume that the accused is
innocent. It was held in the case of Md. Allmuddin v. State of Assam
, 1992, that
the defence version may even be false, nevertheless, the prosecution cannot
derive any advantage from the falsity or other infirmities of the defence
version, so long as it does not discharge its initial burden of proving the case
beyond all reasonable doubt.
In Jarnail Singh v. the State of Punjab
, AIR 1996, it was established that if
the prosecution fails to produce sufficient evidence to meet their burden, they
cannot rely on the evidence presented by the accused in support of their defence.
In criminal trials, the prosecution bears the duty of establishing the
defendant's guilt, and they must do it beyond a reasonable doubt. The plaintiff
has the burden of proving his case by a majority of the evidence in civil cases.
If the prosecution fails to prove the accused's guilt beyond a reasonable doubt,
the accused is entitled to an acquittal. This was determined in the case of
Ouseph v. State of Kerela
, which was decided in 2004.
The burden of proof is defined under Section 101 of the Indian Evidence Act:
Anyone who wants a court to rule on a legal right or responsibility based on
facts he claims must first show that such facts exist. The second Section of the
statute specifies that when a person is required to show the existence of a
fact, that person shall also bear the burden of proof.
As a result, a person seeking a favourable decision from the court must provide
evidence in support of his case, according to this clause. The usual rule is
that the party that asserts a truth bears the burden of proof, not the side that
Section 102 of the Indian Evidence Act:
Who bears the burden of proof - In a suit or procedure, the person who would
fail if no evidence was presented on either side has the burden of proof.
Section 103 of the Indian Evidence Act states:
"The burden of proof as to any specific fact is with the person who asks the
court to believe in its existence unless any law provides that the burden of
proof rests with any particular individual."
Section 104 of the Indian Evidence Act states that the burden of proof is on the
person giving the evidence to prove the facts that must be shown in order for
the evidence to be admissible.
When it comes to establishing facts in order to make evidence of another fact
acceptable, the burden of proof falls on the individual who wishes to offer the
Section 105 of the Indian Evidence Act
When an accused is charged with criminal conduct, the burden of proof is placed
on the accused to establish the circumstances that gave rise to the accusation
under any general exceptions provided by the Indian Penal Code or any other
particular legislation. Under this Section, the prosecution's duty is limited to
establishing the accused's guilt; once that is established, the burden transfers
to the accused, who has the advantage of relying on general exceptions to the
IPC or Criminal Procedure Code.
This is one of the unique traits that only
applies in criminal proceedings. As a result, according to Section 105 of the
Act, the onus of evidence is on the accused to know about every incident that
has occurred. Additionally, this is referred to as the reverse onus clause.
Section 106 of the Indian Evidence Act
Section 106 advances the concept of a fair trial by making it easier to
establish all conceivable facts and removing the burden of proving anything that
is impossible and in the accused's favour. Additionally, it allows the accused
to challenge the presumption of facts drawn from the sequence of events.
However, it is observed that the prosecution exploits this clause and attempts
to evade his responsibilities to establish the legal burden.
Concept of Presumptions under the burden of proof
Presumptions are legal conclusions made by the court about the presence of
particular facts. Presumptions are an exception to the usual rule that the party
that asserts the existence of particular facts has the first burden of proof,
but they eliminate this necessity. When certain facts are believed to exist, the
party in whose favour they are presumed to exist is relieved of the burden of
proof in that regard.
Documentary Evidence is subject to several presumptions. Presumptions may be
divided into three types: factual presumptions, legal presumptions, and mixed
presumptions. When a certified copy of an original document is presented to the
court, the law presumes that the copy is a genuine copy of the original
evidence, according to Section 79 of the Act. The court shall infer that a power
of attorney issued before the court is by a real authorised person, according to
Section 85 of the Act.
The presumption of innocence is a legal notion stating that everyone is presumed
innocent unless proved guilty. Justice Thomas articulated the need of changing
the perspective on this idea in the case of State of West Bengal v. Mohd. Omar
According to him, the traditional approach of constantly placing the
burden of evidence on the prosecution benefits only the accused of horrific
crimes and creates fatalities for society. When a prosecutor successfully
establishes specific facts of the case, the court must infer their existence and
rely on such circumstances. In other words, after the court is satisfied with
the prosecution's case, the burden of proof shifts to the accused since only the
accused is aware of every occurrence committed.
As can be seen, the Evidence Act of 1872 is a well-codified statute that deals
extensively with the issue of the burden of proof. The current innovations in
electronic evidence and burden of proof, on the other hand, require additional
clarity, particularly when it comes to judicial interpretation.
Many cases in our criminal justice system have not resulted in a successful
conviction. The conventional approach of courts on the notion of presumption of
innocence and the obligation to show mental aspect, according to experts, is to
blame. As a result, it was determined that trends that violate any regulation
must be reversed. However, it is critical to guarantee that these developments
do not jeopardise the Judges' integrity and reputation as unbiased officials.
Award Winning Article Is Written By: Mr.Kishan Dutt Kalaskar
Authentication No: FB39138915347-24-0222