A person go to court    "Burden of proof" is a fundamental principle of criminal jurisprudence. That guilt of accused is to be proved by the prosecution, and an accused should be presumed to be innocent.



1) Meaning of burden of proof : 

 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 question is which out of the two parties has to prove a fact. The answer is this question decides the question as to burden of proof. The burden of proof means the obligation to prove a fact. Every party has to establish fact which go in his favour or against his opponent and this is the burden of proof.

2) Burden of proof and onus of proof

 This phase "Burden of proof" or onus probandi is used in two different senses : 


a) the burden of proving all the facts or establishing one's case, and 


b) the burden of introducing evidence at the beginning or at any particular stage of the case.

Illustration - 

Suppose A files a Suit against B on a promissory note. B admits the execution of the promissory note, but denies having received any money from A. If A is to succeed , A will have to show that he lent the money to B,  that B executed the promissory note promising to repay the money to A ,and that the money has not been repaid. The burden of proof in the first sense mentioned above is on A. A has to establish his case. But we should introduce evidence ? A need not, because B has admitted the execution of the promissory note, and under section 118 of the Negotiable Instrument Act, the presumption is that B has received the money, and A can relay upon his presumption in his  favor, and since it is not B's case that he repaid the money, A will straightway succeed ;  because all the facts which he has to prove are proved. The first is proved by the presumption, the second by the admission of B and the 3rd because B not assert repayment. Therefore, if no evidence at all is introduced by either side, A succeeds. And if B wants to succeed he must introduce evidence rebutting the presumption drawn against him under the Negotiable Instruments Act. Therefore the burden of introducing evidence lies upon B.



3) Specific rules of Burden of Proof :  Section 104 to Section 143. 


Section 104 deals with the 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.

Illustrations

A wishes to prove a dying declaration by B. A must prove B’s death.

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

A must prove that the document has been lost.




a) Burden of Proof on Accused -

Section 105 deals with the Burden of proving the fact that in a criminal case, the case of the accused comes within one  or the other of the exceptions as to liability.

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.

Illustrations

(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.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under section 325.

The burden of proving the circumstances bringing the case under section 335 lies on A.


There is an Apparent contradiction between the Indian law as laid down in Section 105 and the English law .

b) Special knowledge - 

Section 106 deals with the burden of proving a fact within the special knowledge of a particular person : 

When any fact is specially 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 charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him.


c) Proof of Death -

Section 107 and 108 deals with the burden of proving the death of a person and proving that a person was alive, in certain circumstances. this sections say :


Section107: When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 108 : "Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."


Therefore, if a person was known to be alive within 30 years presumption is that he is alive, and if a person has not been heard of for 7 Years by those who would naturally have heard of him if he had been alive, the presumption is that the person is dead; but, no presumption can be drawn as to the time of death.


In Mohammad Sharif vs Bande Ali (1861) the appellants sought to redeem a mortgage made by their uncle. According to them, their uncle the original mortgagor, disappeared about 18 years ago, that he must be presumed to have been dead for the last 11 years,  that their father must be deemed to have succeeded his brother during that time and that after their father's death they, as this heirs, had the right to redeem the mortgage. It was held that the presumption which was permissible under section 108, does not go further than the mere fact of Death. If the period which has elapsed since the time that the person whose Death is in question was last heard of is more than 7 years, there is no presumption that such person is died during the first period of 7 years and not at any subsequent period.


If the time of death is in issue or is a relevant fact, it must be established by independent direct circumstantial evidence.


d) Burden in case of certain relations -

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 relationships respectively, is on the person who affirms it. 


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. For example, if a client sells his property to his advocate and then brings the Suit against him for setting aside the sale on the ground of fraud, the burden of proving the good faith of the Advocate in entering into the transaction is on the Advocate, because he stands in a position of active confidence towards his client. The client acts on the advice of his advocate, and therefore reposes confidence in him. Similarly, if a person who has just come of age sells his property to his father and later on sues him for sitting aside the sale on the ground of fraud, the burden of proving that the father acted with  good faith lies upon the father because the Son, not yet conversant with the affairs of the word, reposes confidence in the father and acta on his advice, the father stands in a position of active confidence or fiduciary capcity towards a son has just come of age.


e) Burden in case of terrorist -

 Section 111(a) states : 

" (1) Where a person is accused of having committed any offence specified in sub-section (2), in-

(a) any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contary is shown, that such person had committed such offence.

(2) The offences referred to in sub-section (1) are the following, namely -

(a) an offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);

(b) criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860).



f) Burden in case of Dowry Death -


Section 113(A) is as follows 

When the question is whether the commission of suicide by a women 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 has 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.

Explanation

For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

Section 113-B is as follows : 

When the question is whether a person has committed the dowry death of a women 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.

State of U.P v. Harimohan (2000) 8 SCC 598.
A housewife  was murdered in her in-laws' house. A letter written by her father two day's prior to the incident stated therein that she should be immediately taken back from the house of her in-laws or otherwise her brother-in-law, mother-in-law and husband  would murder her. The defence plea was that the letter was written much earlier. It was held that even if it was so it will not make any difference as admittedly, it was proved to have been written by the deceased before her death.  there Cruiser watches under section

Almgir Sani v State of Assam (2002) 10 SCC 277. The accused was charged under Section 302 and 304B IPC. He was acquitted of the offence under Section 302. The presumption under Section 113B was not automatically rebutted.


Explanation

For the purposes of this section, “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

g) Burden in certain cases of rape -


Section 114-A is as follows 

"In a prosecution for rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. "


In Vallicherukuru Village Panchayat v. Nori Venketarama Deekshitulu 1999 supp(2) SCC 228. It was held that the presumptions under these sections can be raised to fill up gaps in the absence of evidence, but cannot be used contradict evidence.



h) Proof regarding legitimacy - 


Section 112 is as follows :

"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 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 the marriage had no access to each other at any time when he could have been begotten."



The period 280 days mentioned in section is known as the period of the gestation. 

Section 113 in the following terms 

"A notification in the Official Gazette that any portion of British territory has before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification."

In Damodar Gordhan v. Deoram Kanji it was held :

The Governor-General-in-Council being precluded by the Act 24 and 25  Vict.c. 67 Section 22 from legislating directly as to the sovereignty or dominion of the Crown over any part of its territories in India, or as to the allegiance of Britisher subjects, could not, by any legislative Act, purporting to make a notification in a Government Gazette conclusive evidence of a session of territory, exclude enquiry as to the nature and lawfulness of that cession. 


The judgement is interpreted to have the effect of making the section ultra virus of Indian Legislature.


 The sections in the Act dealing with conclusive proof are

i) Section 4 where the phrase defined,

ii) Section 31 which states the effect of admission.

 iii) Section 41 which says that the judgements in rem are conclusive proof with respect to certain matters.

iv) Section 112 which deals with the legitimacy of a child born during wedlock.

i) Cases of suicide :

A new Section 113A has been added byAct 46 of 1983 with effect from 25th December, 1983. It provides that : 

 Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a women 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 has 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.

Explanation

For the purposes of this section, “cruelty” shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).

This section is respectfully submitted, will not be of much practical use, because, it is difficult to show that the deceased  had been subjected to cruelty by her husband or his relatives. The only way in which innocent wives can be saved from a unscrupulous husbands and relatives of such husbands, is for society to boycott the families of such husbands and their relatives. No one should offer their daughters in marriage to such husbands where wives have committed suicide.


Govt.of Delhi v.Nagesh Tyagi (2001) 5 Supreme 677.

A married women committed suicide within 7 years of her marriage. She left a suicide note referring to her being beaten by her husband and that such beating being the motive for suicide. The trial court framed changes under Section 113A of the Evidence Act. Therefore, in the present Case, High Court was not justified in the quashing the charge because a the trial court after considering the entire evidence and having regard to all the circumstances of the case may presume that the suicide watch abetted by her husband.



4) Conclusion -

The rule is in accordance with the principle that the burden of proof is upon the party who substantially assert the affirmative of the issue but not on the party who denies. The reason behind this rule is that who drags anther into the Court must bear the burden of proving the facts which he assert.

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