Burden of Proof

Meaning:
 BOP is the responsibility to establish a claim in legal proceedings.
 The Burden of proof is referred to as an obligation to prove one’s assertion.
 The burden of proof is the legal obligation of one party in a dispute to provide evidence
that supports their position.
 The burden of proof varies by the type of case and the jurisdiction.
 For example, in criminal cases, the prosecution must prove the defendant's guilt beyond a
reasonable doubt. In civil cases, the plaintiff must prove their case by a preponderance of
the evidence, which means they must show that the disputed fact is more likely than not.
The burden of proof is the responsibility of the party who must prove the existence of
facts that are the basis of their legal claim.
 This burden usually is upon the party asserting a fact rather than the one denying it, as
based on the Latin maxim ‘eiincumbit qui delicit con qui negat.’
 This legal principle is applied in both criminal and civil cases, and it is governed by
various sections of the BSA

 BOP can be categorized into two main types:

 the Burden Of Proof as a matter of substantive law or pleading (Section 104 of
BSA) and
 the Onus Of Proof or Onus Probandi (Section 105 BSA).
 Significance: The burden of proof is pivotal because it tells who must give evidence in a
legal dispute. It helps in providing fairness in the legal process by making it sure that
claims are substantiated by evidence. It also safeguards the parties from having to
disprove unsubstantiated claims.
 The Bharatiya Sakshya Adhiniyam,2023(BSA) comprehensively addresses the concept of
the Burden Of Proof in various legal scenarios.
o Section 104: Initial burden of proof
o Section 105: Shifting onus of proof
o Section 106-120: BOP in special circumstances
Key Components
1. Burden of proof: (Section 104)
Sec 104: Burden of proof.: 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, and when a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person. Illustrations.(a) A desires a Court to give judgment that
B shall be punished for a crime which A says B has committed. A must prove that B has
committed the crime.(b) A desires a Court to give judgment that he is entitled to certain land
in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A
must prove the existence of those facts.
Interpretation: The burden of proof lies on the person who wants the court to give judgment
on a legal right or liability. According to the provision, any person who desires to get a
ruling by any Court in his/her favour with regard to any legal right or liability on the
basis of certain existing facts must prove the facts he/she is asserting and the obligation to
prove the existence of the asserted facts is called as the burden of proof.

This section is based on a fundamental principle of legal proceedings – the party asserting a
legal right or liability must substantiate their claim by proving the existence of necessary
facts. It places the burden of proof on the person making the assertion. The party wanting a
favourable judgment as to any legal right or liability must prove the required facts to
establish their case.
o In criminal cases, this initial burden is upon the prosecution,
o In civil cases, it is upon the plaintiff to substantiate their claims.
This initial burden does not shift throughout the course of the trial.
Eg. - A desires punishment for B on a crime; A must prove B's commission of the crime.

2. Onus of Proof or Onus Probandi (Section 105 of BSA)

Sec 105: 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.
Interpretation: Section 105 refines the principle laid out in Section 104 by asserting that the
onus of proof rests on the party who would suffer if no evidence were presented. It states
that the burden of proof lies upon such a person who would fail if no evidence is produced
or fact is asserted by either of the parties to a legal proceeding. It states that the burden of
proof lies upon such a person who would fail if no evidence is produced or fact is asserted
by either of the parties to a legal proceeding.
This ensures that the party making a positive claim bears the responsibility of proving that
claim. This section deals with the concept of the Onus Of Proof or Onus Probandi, which
can shift during the course of a case. Initially, the plaintiff must establish a prima facie case,
giving sufficient evidence to support their claim. Once the plaintiff does so, the burden shifts
to the defendant to give rebutting evidence. This shift of onus can occur multiple times as
the case develops, but it invariably starts with the party making the initial claim. Section 105
emphasizes on the fundamental principle that the burden of proving a fact lies with the
party that will lose the case if no further evidence is provided by either side.
Unlike the burden of proof, which remains constant, the onus of proof can shift during
the trial based on the evidence presented by each party.
Key Points:
 Dynamic Nature: The onus of proof is dynamic and may shift from one party to
another depending on the evidence presented during the trial. The term ‘Onus of
Proof’ is the burden to produce actual evidence that can be shift from one to another
party and such shifting is the continuous process in the evolution of evidence.
Initially, it lies on the party who would be unsuccessful if no evidence at all was given
on either side. The burden of proof lies upon the person who has to prove a fact
and the burden remains constant which never shifts while on other hand onus
shifts from one to another
 Matter of Adducing Evidence: It primarily involves the presentation of evidence to
support specific assertions made by a party. This could include proving the
authenticity of documents, establishing the credibility of witnesses or demonstrating
the occurrence of certain events.
 Embodied in Section 102: Section 102 of the Indian Evidence Act addresses the onus
of proof, stating that it lies on the party who would be unsuccessful if no evidence at
all was given on either side initially.

In the case of Jarnail Sen v. State of Punjab[1], if the prosecution fails to adduce the
satisfactory evidence to discharge the burden, they cannot depend upon the evidence
adduced by the accused person in support of their defence. In a legal case, the burden of
proof is discharged when the accused raises a reasonable doubt in the court's mind. This can
be done through the accused's own statement, evidence provided by the prosecution, or
evidence provided by the accused. However, the Supreme Court has ruled that if the
prosecution is unable to establish a chain of circumstantial evidence, the accused's
failure to discharge the burden is not relevant. The Supreme Court has also ruled that the
accused cannot be asked to discharge the burden of proof if the prosecution has not
established a prima facie case.
Differences between burden of proof and onus of proof
Now, let’s explore these differences between burden of proof and onus of proof further in
detail:
Scope of responsibility
 Burden of proof encompasses the entirety of the case, requiring the party to prove all
necessary facts and elements.
  Onus of proof, on the other hand, focuses on specific facts or assertions within the case
that require evidential support.
Allocation of responsibility
 The burden of proof lies upon the party who must prove a particular fact essential to
the case and it remains constant throughout the proceedings.
 Initially, the onus of proof lies with the party who would be unsuccessful if no
evidence were presented on either side. However, it can shift during the trial based on
the evidence presented by each party.
Legal codification
 The concept of burden of proof is explicitly outlined in Section 101 of the Indian
Evidence Act, emphasizing its importance in legal proceedings.
 Similarly, the concept of onus of proof is codified in Section 102 of the Indian
Evidence Act, highlighting its significance in evidentiary matters.
Here’s a tabulated summary outlining the key differences between the Burden of Proof and
the Onus of Proof:

Aspect Burden of Proof Onus of Proof

Responsibility to prove the Responsibility to present evidence for

Definition
entire case specific facts or claims

Relates to the entirety of the Pertains to specific facts or elements

Scope
case being presented within the case

Lies on the party who must Initially on the party who would be
Allocation
prove essential facts unsuccessful without evidence

Remains constant throughout Can shift based on evidence presented

Constancy
the proceedings during the trial

Legal Codified in Section 101 of the Codified in Section 102 of the Indian
Codification Indian Evidence Act Evidence Act

3. Particular Fact (Section 106 of BSA)

Sec 106: 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. Illustration. A prosecutes B for theft, and wishes the Court to believe
that B admitted the theft to C. A must prove the admission. B wishes the Court to believe
that, at the time in question, he was elsewhere. He must prove it.
This section stipulates that the burden of proving a specific fact lies with the person who
asserts that particular fact and seeks the court’s belief in its existence unless it is
provided by some law that the proof of that fact shall lies on any particular person. This is
distinct from Section 104, which concerns the overall burden of proving the entire case.
The general rule with regard to Onus probandi or burden of proof is that the obligation to
prove a certain fact lies upon the person asserting or claiming it or the person instituting the
criminal proceedings but this general rule of burden of proof has certain exceptions where
the obligation to disprove an asserted fact lies upon the opposite party. Such a burden to
disprove the facts asserted or claimed in any legal proceedings is known as the reverse
burden of proof.
4. Burden of proving Fact to be proved to Make Evidence Admissible (Section 107)
Sec 107: 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.
It places the burden of proving any fact necessary to enable a person to present evidence of
another fact on the party wishing to provide such evidence. Section 107 extends the burden
of proof to include facts necessary for presenting evidence. It stipulates that the burden rests
on the person wishing to introduce such evidence, ensuring a logical and coherent
presentation of facts.
Eg. A wishes to prove a dying declaration by B; A must prove B's death before proving the
dying declaration.

5. Burden of proving that the case of Accused Falls Within Exceptions (Section 108)
Sec. 108: 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 Bharatiya
Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part
of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall
presume the absence of such circumstances.
Interpretation: This section is a general exception to the general burden of proof concept.
In criminal cases, when an accused person’s defence depends upon proving the fact that his
case falls under general or special exceptions under the BNS,2023 or other laws, the burden
of proving the existence of such circumstances lies on the accused. The court presumes the
absence of such circumstances unless it is proven otherwise. The burden shifts from the
prosecution (which is the norm) to the accused to establish circumstances falling within
general or special exceptions, ensuring fairness in legal proceedings.

6. Burden of proving Fact Especially Within Knowledge (Section 109 of BSA)

Burden of proving fact especially within knowledge.
When any fact is especially 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 travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
When a fact is particularly within the knowledge of a specific person, that person
suffers the burden of proving it, emphasizing fairness in substantiating relevant facts.
Example: A person performing an act with an intention different from its apparent
character; the burden of proving that intention is on that person. (using a knife to open a
Jar rather than killing a person)

7. Burden of proving Death of a Person known to have been alive within 30 years
(Section 110 of BSA)
Burden of proving death of person known to have been alive within thirty years: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.
In cases where it is in question whether a person is alive or dead, if it’s shown that the
person was alive within the last 30 years, the burden of proving that person’s death lies
upon the party asserting that he is dead.

8. Section 111 BSA- Burden of proving that a Person Is Alive but who has not been
heard for the last 7 years
Section 111 further addresses the question of a person's life or death. If a person has not
been heard from for 7 years by those who would typically have heard of them if they were
alive, the burden of proving that the person is still alive shifts to the party who is asserting
their continued existence (ie. being alive) of that person.
9. Burden of proof as to Relationship in the cases of partners, landlord and tenant and
principle and agent (Section 112 of BSA)
Section 112 deals with questions regarding relationships such as partners, landlord and
tenant, or principal and agent. It specifies that if parties have been acting as such (as
partners, landlord and tenant and principal and agent), the burden of proving they do not
stand in those relationships anymore falls on the person affirming it.
Example: In a dispute over whether two individuals are partners, if their actions suggest a
partnership, the burden of proving otherwise lies on the person denying the partnership.

When it is questioned whether persons stand in specific relationships partners, landlord and
tenant, or principal and agent, the burden of proving that they do not hold these
relationships is on the party making such an assertion.

10. Burden of proof as to Ownership (Section 113 of BSA)

Section 113 extends the principles to cases where the question is about ownership. In cases
where possession of an item is established, ie, If a person is in possession of something and
is alleged to be the owner, the burden of proving they are not the owner rests on the person
denying ownership.
Example: If A is in possession of a necklace, and B claims A is not the owner, the burden of
proving ownership lies on B. if however, A is in possession of a necklace and A claims he is
not the owner, the burden lies on A to prove that.

11. Proof of Good Faith in Transactions when one party is in relation of active
confidence (Section 114 of BSA)
It deals with transactions involving parties in positions of active confidence. In cases where
the good faith of a transaction is in question, the burden of proving such good faith lies on
the party who is in the position of active confidence. Section 114 of the Bharatiya Sakshya
Adhiniyam (BSA) of 2023 states that the party in a position of active confidence has the
burden of proving the good faith of a transaction if there is a question about it.
Example: In a Transaction between a client and an advocate, if the client questions the good
faith of the transaction, the burden is on the advocate to prove the transaction's good faith.
A transaction between a doctor and a patient, if the patient questions the good faith of the
doctor, the burden lies on the doctor to prove that his actions were done in good faith.
Interpretation: The words “active confidence” indicate that the relationship between the
parties must be such that one is bound to protect the interests of the other.
12. Presumption as to Certain Offences (Section 115 of BSA)
(1) Where a person is accused of having committed any offence under sec 147 Waging, or
attempting to wage war, or abetting waging of war, against Government of India, 148
BNS Section 148 (conspiracy to commit offenses punishable under Section 147 or to
intimidate the Central or State Government through criminal force), 149(Whoever
collects men, arms or ammunition or otherwise prepares to wage war with the intention
of either waging or being prepared to wage war against the Government of India) or
150(Section 150 of the Bharatiya Nyaya Sanhita (BNS) of 2023 deals with the concealment
of information or actions that could aid in the execution of a plan to wage war against the
Government of India) of BNS 2023, and is present in
(a) any area declared to be a 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 contrary is shown, that such person had committed such
offence.
Interpretation: In any area where there is extensive disturbance of the public peace and
tranquillity, by reason of differences or disputes between members of different religious,
racial, language or regional groups or castes or communities, it may, by notification in the
Official Gazette, declare such area to be a disturbed area. In these disturbed areas, if a person
is accused of committing particular offenses and that person was present at the crime scene,
the law will presume their guilt unless proven otherwise.

13. Birth during valid marriage between parents is conclusive proof of Legitimacy of a
Child (Section 116)
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 child 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.
Interpretation
This section talks about the legitimacy of a child born during marriage. It
presumes legitimacy only if the child is born
a. during a valid marriage or
b. within 280 days after its dissolution of marriage, provided the mother remains unmarried.

This presumption is conclusive proof unless non-access between the parties is proven.

14. Presumption of Abetment of Suicide by a married woman (Section 117 of BSA)

Section 117. When the question is whether the commission of suicide by a woman 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 had 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.
Interpretation
It tells about a presumption relating to abetment of suicide, mainly in dowry cases. If a
married woman dies by committing suicide within 7 years of marriage, and there’s evidence
of cruelty or demand for dowry by her husband or in-laws, the burden of proof is on the
accused to show that the suicide was not abetted.
Cruelty is defined as any physical, mental, emotional, and financial harassment that
endangers a woman's health or life.
Abetment as to Suicide by a Married Women- Section 113A deals with the presumptions
of abetment of suicide of a married woman either by her husband or any of his relatives. The
court has mentioned few essentials to check that whether a suicide executed by married
women is inconsistent with the essentials mentioned under the provision, and if they are
consistent to it then the court in such cases will presume that such suicide has been abetted
either by the husband or his relative. The essentials of this provision are:
(i) The incident of suicide was committed within a period of seven years from the date of her
marriage; and

(ii) According to section 85 of BNS, Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also be liable to fine

15. Presumption of Dowry Death (Section 118 of BSA)

Section 118. When the question is whether a person has committed the dowry death of
a woman 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.
In cases in which the death of a woman within 7 years of marriage due to cruelty or
harassment for dowry, Section 118 of BSA presumes it to be a dowry death.
16. Court may presume Existence of Certain Facts (Section 119 of BSA)
The Court may presume the existence of any fact which it thinks likely to have
happened, in the common course of natural events, human conduct and public and
private business, in their relation to the facts of the particular case.
Interpretation:
Section 119 of BSA outlines the powers of the courts in terms of presuming certain facts
that are likely to have happened, with due consideration being given to the ‘common
course of natural events, human conduct and public and private business’, as connected
to the facts of the specific case.
This Section has placed discretionary powers in the hands of the court to presume certain
facts from the existing circumstances of the case that can reasonably guide us towards a
valid conclusion. It is pertinent to note that it is not mandatory to do so. Presumptions can be
deduced from the prevailing facts and conditions through logical reasoning and a
balance of probabilities. Also, presumptions are conclusive evidence but they may be
rebutted by the evidence produced by the person on whom the onus lies. It is on the
court to carefully look through all the facts presented and take a reasonable and
informed decision.
Main elements of forming a presumption
Broadly, the Section outlines three main elements of forming a presumption. These are-
1. Common course of natural events
A presumption must be such that it conforms to the natural course of events, depending on
the facts and circumstances of the case.
2. Human conduct
It is the conduct that is natural to a human being, capable of rational judgment between what
is right and wrong. The expression of the conduct could be positive or negative,
characterized by the situation.
3. Public and private business
A presumption can flow out of the ordinary course of public and private business, where it
is presumed that an event will take place as is regularly conducted.
As per the illustrations mentioned, the court has the liberty to presume the following:
1. If a person is found in the possession of stolen goods immediately after the theft has
occurred, then that person is presumed to be either the thief or has received those
goods with the knowledge that they are stolen, unless he can prove otherwise.

17. Presumption of Absence of Consent in certain prosecution for Rape (Section 120 of
BSA)
In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya
Sanhita, 2023, 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.
It deals with the presumption of absence of consent in sexual assault cases. It is presumed
there was a lack of consent of a woman when sexual intercourse is proven, and the victim
says it was without her consent. The accused can contradict this by providing evidence.
Exceptions
1. Gauri Shanker vs Union Of India 1994
Supreme court of India said that if any person questions the validity of any legislation
claiming that it is unconstitutional, then the burden of proving that the legislation is
unconstitutional will lie of the person who makes such claim and the court will presume that
all legislations are made according to the constitution.

2. Kali Ram v. State of Himachal Pradesh (1973)

The accused Kali Ram was charged in the Court of Sessions Judge for an offense
under Section 302, Indian Penal Code for the murder of one Dhianu and his daughter Nanti.
He was also charged for the offense of robbery. The Sessions Judge convicted him and
sentenced him to death. On appeal, the High Court also confirmed his conviction and
sentence passed by Sessions Judge was based on three pieces of evidence, that is first the
evidence of a witness recorded by police over two months after the occurrence, secondly, the
letter written by an accused to the Deputy Commissioner making a confession of his guilt
and lastly an extra-judicial confession made to Sahi Ram who incorporated the letter to the
Station House Officer. Further, the accused filed a Special Leave Petition (SLP) before the
Supreme Court.
The issue arose in this case regarding the innocence of the accused based on the benefit of
the doubt. The Supreme Court in the above case rejected all the sentences given by the trial
court and the high court and gave the benefit of doubt to the accused.
Further, the Supreme Court in the above case was of the view that the system works on the
principle that any person is considered to be innocent unless he or she is proven to be guilty.
This means an accused is presumed to be innocent unless that presumption is rebutted by the
prosecution by producing evidence against the accused which makes him guilty of the
specific charge. Hence the court cannot find an accused to be guilty until proven by the
prosecution. The burden of proof is on the prosecution.
Another observation that the court opined was whenever there are two views, one favoring
the accused and the other against the accused, then the view which is favorable to the
accused shall be adopted. This principle is applied in special cases where the offense of an
accused needs to be proven on the basis of circumstantial evidence. Thus, it was accepted
that whenever the court finds reasonable doubt about the guilt of an accused, the accused
must get the benefit of such doubt.