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General Concept of Burden of Proof

The responsibility to prove a thing is called burden of proof. When a person is required to prove the
existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many
facts are alleged and they need to be proved before the court can base its judgment on such facts. The
burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to
the required degree of certainty in order to prove its case.
In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation
is nothing but burden of proof. Section 101 defines burden of proof as follows - When a person is bound
to prove the existence of any fact, it is said that the burden of proof lies on that person.
It essentially denotes as to who should prove the existence or non-existence of a fact which is
alleged by either party during the trial of a case.
The rules for allocation of burden of proof are governed primarily by the provisions in Section 101 to
105. The rules propounded by these sections can be categorized as General rules and Specific rules.
Reasonable Doubt v. Balance of Probabilites
In common law, two separate standards of proof are recognized- proof beyond reasonable doubt and
proof based on the balance of probabilities. The former is he standard adopted while dealing with
criminal cases while the latter is the standard in use in case of civil suits.
Burden of proof in civil and criminal cases: Difference
Civil suits
Generally speaking, in case of a civil suit the person who brings an action is said to bear the "onus" or
"burden of proof". Accordingly, if you are the plaintiff it will be up to you to introduce the evidence that
supports your case. If you fail to do so, the case will be lost. This required standard of proof is known as
the "balance of probabilities". In simple terms, the balance of probabilities will be met if you can
successfully establish that the claim you are making is more probable than not i.e. 50.1% versus 49.9%.
If the judge or jury believes the plaintiff and defendant equally, the plaintiff has failed to meet his burden
of proof and his claim must fail. In other words, the tie goes to the defendant. The defendant does not
have to prove anything. The defense is free to simply poke holes in the case of the plaintiff.
There are limited circumstances in which the defendant must prove a defense. This usually arises when
the defendant has raised what is known as an affirmative defense. Also, if the defendant attempts to
blame a third party, he is usually required to prove his case against that third party by a preponderance
of the evidence. Also, the principle of res ipsa loquitur can be seen as reversing the

burden of proof where it applies.


Criminal suits
The burden of proof lies on the prosecution to adduce evidence before the court and if it fails to
introduce any or sufficient evidence, it is an established principle that the acquittal will follow. However if
one considers the evidential burden, it constantly shifts during the trial.
A criminal case is a "proceeding" within the meaning of section 102 and the burden of proof in such a
proceeding lies on the prosecution. The elementary principle of criminal law, that in all cases the burden
of proof lies upon the prosecution to bring the guilt home to the accused, does not admit any exception.
In criminal cases the onusof proving the general issue never shifts and it lies upon the prosecution to
prove, by relevant evidence and beyond reasonable doubt, the guilt of the accused. It is not right for a
Criminal Court to convict an accused person because the defence theory appears to it to be
unreasonable or does not appear to it to have been established.

Silence of the accused cannot be substituted for proof of the prosecution. 32 An


accused person must always he presumed to be innocent until he has been found
to be guilty. The burden of establishing any special issue raised by the accused
rests upon him, but there is always the burden of the general issue as to guilt of
the accused person, which always rests upon the prosecution and never changes.

Itisonlywhenagoodprimafaciecaseismadeoutagainsttheaccusedsufficienttojustifyhis
convictionthattheburdenshiftsupontheaccusedtoprovethatheisnotguilty.
Where the Court is unable to say which of the two theories is the more likely one,
it is bound to take the view most favourable to accused42 and to give him the
benefit of the doubt.
If, however, the accused relies on any exception or proviso contained in any law
defining the offence the burden of proving that his case falls within a particular
exception of proviso is on the accused.44 But even then the accused is in a much
more favourable position then the prosecution, because he is not in general called
upon to prove it beyond a reasonable doubt, but it is sufficient if he succeeds in
proving in prima facie case.45
Burden of proof in case of exceptions
As has been discussed already, the legal burden of proof remains on the prosecution but under section
105 of I.E.A, the burden may shift on the accused to prove special circumstances when he takes the
support of an exception or a proviso. The most common illustration of that is insanity. The prosecution
has to prove all the elements of crime including mens rea. However the accused may rebut this by
pleading insanity but the burden of proof in this case is only one of balance of probabilities. Even if the
accused is unable to establish his insanity the evidence led by him may raise a reasonable doubt as to
the mens rea of the accused at the time of commission of the offense. This has been consistently
ratified by Supreme Court through plethora of judgments.

Onus in appeal

In civil appeals the onus of showing that the judgment under appeal is wrong is on
the appellant. If all that the appellant can show is nicely balanced calculations
which lead to the equal possibility of the judgment on either the one side or the
other being right, he has not succeeded. In criminal appeals, however, where
generally the onus on the prosecutor is heavier, the rule is slightly different and
the Court has to see whether the conviction is right. In an appeal from an order of
acquittal the onus on the prosecution is still heavier.