“Burden of proof” isn’t exactly defined in the Indian Evidence Act, 1872. Chapter VII of the Indian Evidence Act deals with the burden of proof from sections 101 to 114A. In other words, the Evidence Act does not define the term ‘burden of proof’, but talks about its conceptual thing.
For understanding the concept of burden of proof, the general rule given in section 101 of the Indian Evidence Act is followed throughout the chapter.
Before burden, one should be clear about what is “proof”?
Proof is something, which is presented in such a manner that a prudent man believes it to be true.
In general, burden of proof means the obligation to prove the existence or non-existence of any fact. If no evidence is given by the party on whom the burden of proof lies, then the issue is settled against him.
The concept of burden of proof is based on the maxim– ‘Ei incumbit qui delicit con qui negat‘ which means the burden of proof lies upon who asserts, not who denies. Thus, the burden of proof lies on the one who asserts any fact. Let us take a brief look at the topic.
Burden of Proof – Section 101 Evidence Act – Explanation
Section 101 of the Indian Evidence Act deals with the burden of proof of the entire case. It says that whoever is a party to a case, if wishes any court to give judgement as to decide any legal right or liability based on the existence of any facts that the party asserts, then the party must prove the existence of such facts.
Hence, when a party so asserts the existence of any fact, it can be said that the burden of proof lies on that party because the assertion of such fact bound the party to prove it.
This can be understood with the help of an example:
John desires a court to give judgement that Rosy shall be punished for the murder of Smith, which John asserts (believes confidently) that Rosy has committed. John must prove that Rosy has murdered Smith.
It is concerned with the burden of proof of the entire case, which “never shifts“. It is also known as the burden of proof on pleading, which depends upon the facts as asserted or denied and is determined by the rules of substantive and statutory law or by the presumption of law and fact.
The following example will make it clear:
For example: X files a suit against Y, widow of Z, declaring that he is the owner of all the property left by Z being his adopted son. Y, the widow, denies the factum of adoption. In this case, A desires the court to give judgements to the effect that he is the owner of the property left by Z depending on the fact that he was adopted by Z. So, he must prove that he was adopted by Z.
Related: What Is the Burden of Proof Under the PMLA?
On Whom the Burden of Proof Lies – Section 102 Evidence Act – Explanation
Section 102 of the Indian Evidence Act deals with the burden of proof during a suit or proceeding that supports the evidence of the entire case, i.e. section 101.
As we already know, under section 101 of the Indian Evidence Act, the burden of proof lies on the party who brings the case. Now, it is the burden on the other party to prove their side as to the non-existence of such fact asserted by the party under section 101. If it fails to produce the adducing evidence in its favour, then the case would settle against the party.
Now let us understand sections 101 and 102 with an illustration:
A desires a court to give judgement that B has committed murder and punish him under section 302 of the Indian Penal Code, 1860. For this, A says that B has committed C’s murder, who is A’s brother. Now, as per section 101 of the Indian Evidence Act, the burden of proof is on A that B has committed the murder of C, and he must prove it.
Moving further and applying section 102, the burden is now shifted on B, and if no adducing evidence were given by B, B would be punished for the murder of C.
Therefore, the burden of proof is on B.
What Is Onus of Proof?
Section 102 of the Indian Evidence Act actually deals with the burden of adducing evidence which, in other words, is also termed as onus of proof, i.e. onus probandi. This burden has been described as of “shifting” nature.
When an individual gives the adducing evidence under section 102, it will support the prima facie case, i.e. section 101. Now the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.
State of Maharashtra vs Wasudeo Ramchandra Kaidalwar (1981)
The Supreme Court held that prosecution cannot take the benefit of evidence of the accused. They have to stand on their own legs. The guilt of the accused is to be established by the prosecution on its own evidence.
The court further stated that the burden of proof is a matter of law. It lies on the person who has to prove the facts which never shifts. Whereas the onus of proof is a matter of adducing evidence, and it keeps on shifting.
Burden of Proof in Criminal Cases
In criminal cases, the burden of proof is always on the prosecution. As a general rule, it must prove it beyond a reasonable doubt, which is by reason of the principle: “Let hundred guilty be acquitted, but one innocent should not be convicted.”
Burden of Proof in Civil Cases
In civil cases, the burden of proof is always on the plaintiff, and mere preponderance of probability is enough. It depends upon the balance of convenience.
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