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NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

HISTORY AND DEVELOPMENT OF STATUTORY LAW AND PRESUMPTIONS

PROJECT ON BURDEN OF PROOF

SUBMITTED BY HARIKRISHNAN.V REG NO: 592

ACKNOWLEDGEMENT
First of all, I would like to thank Prof. Jacob Joseph for helping me with the project and for standing with me during the test of times. I would also like to thank my parents for being with me.

BURDEN OF PROOF INTRODUCTION The expression Burden of proof means two different things .It means something that party is required to prove an allegation before judgement can be given its favour ; it also means `that on a contested issue one of the two contenting parties has to introduce evidence . The burden of proof is of importance where by reason of not discharging the burden which `was put upon it, a party must eventually fail.1 This burden will, at the beginning of trail, lie on one party, but during the course of the trail it may shift from one side to other . At the end of a case when both parties have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. Where in an eviction proceeding the fact of sub-tenancy was established though the sub-tenant had left the ground was not thereby wiped out , the court said that either party was free to prove his case and all questions as to burden of proof also becomes irrelevant when the entire evidence on the matter is already on record The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges."2 This is a statement of a version of the presumption of innocence that underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defense might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally. Chapter VII, Indian Evidence Act, 1872, which relates to the burden of proof, deals with a subject which requires a little explanation. This is a subject of presumptions.

1 2

Narayan v Gopal,AIR 1960 SC 100


Patterson v. New York, 432 U.S 197 (1977)

WHEN THE THEORY WAS IN GENESIS In times when the true theory of proof was in its infancy, numerous attempts were being made to construct theories as to the weight of the evidence which should supply the want of one founded on observation. The doctrine of presumptions was closely connected to this theory. Presumptions were inferences which the judges were directed to draw from certain states of facts in certain cases and there presumptions were allowed a certain amount of weight in the scale of proof. A/C to the English law, there are 4 kinds of Presumptions: 1. Conclusive presumptions-they provide that certain modes of proof shall not be liable to contradiction. 2. Presumptions which affect the ordinary rule as to the burden of proof that he who affirms must prove. 3. There are certain presumptions which, though liable to be rebutted, are regarded by English law as being something more than mere maxims. An instance of such presumption is to be found in the rule that recent possession of stolen goods unexplained raises a presumption that the possessor is either the thief or the receiver. 4. Bare presumptions of fact-chapter VII of the Indian evidence act, deals with this subject as follows; a. It lays down the general principles which regulate the burden of proof b. It then enumerates the cases in which the burden of proof is determined in particular cases by presumptions.

Burden of proof - Types of burden There are generally three broad types of burdens. A legal burden or a burden of persuasion is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact the party carrying the burden will succeed in their claim. For example the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offence and to disprove all the defenses. An evidentiary burden or burden of leading evidence is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie proof of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption A tactical burden is an obligation similar to an evidentiary burden. Presented with certain evidence, the Court has the discretion to infer a fact from it unless the opposing party can present evidence to the contrary. Standard of Poof The standard of proof is the level of proof required in a legal action to convince the court that a given proposition is true. The degree of proof required depends on the circumstances of the proposition. Typically, most countries have two levels of proof: the balance of probabilities (BOP), i.e preponderance of evidence in the US, beyond a reasonable doubt (commonly refered to as BARD), or just beyond reasonable doubt. In addition to these, the US introduced a third standard called clear and convincing evidence Burden of proof - Balance of probabilities Also known as "preponderance of the evidence", this is the standard required in most civil cases. The standard is met if the likelihood that the proposition is true is more likely than it not being true. Effectively, the standard is satisfied if there is greater than 50% chance that the proposition is true. Lord Denning in Miller v. Minister of pension described it simply as "more probable than not".

Burden of proof - Beyond a reasonable doubt This is the standard required in most criminal cases. This means that the proposition must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person (usually this means the mind of the judge or jury). There can still be a doubt, but only to the extent that it would be "unreasonable" to assume the falsity of the proposition. The precise meaning of words such as "reasonable" and "doubt" are usually defined within jurisprudence of the applicable country. In the United States, it is usually reversible error to instruct a jury that they should find guilt on a certain percentage of certainty (such as 90% certain). The difference between the criminal and civil standards of proof has raised some interesting cases. For example, O.J. Simpson was cleared in a criminal trial of murder, but, in a subsequent civil trial, due to the lower standard of proof, had substantial damages for wrongful death ordered against him.

Burden of proof - Clear and convincing evidence Clear and convincing evidence is the intermediate level of burden of persuasion sometimes employed in the US civil procedure. In order to prove something by "Clear and convincing evidence" the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than "proof beyond a reasonable doubt" which requires that the trier of fact be all but certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. BURDEN OF PROOF IN INDIAN EVIDENCE ACT (1872) Sections 101 to 114 of the Indian Evidence Act deals with Burden of Proof. Some of the important sections are explained below :Section 101 of the Indian Evidence Act states that Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.

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 burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. Moreover, it is but reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove his own case. In the application of this rule, regard must be had to the substance and effect of the issue, and not to its grammatical form, for in many cases the party, by making a slight alteration in the drawing of his pleadings, may give the issue a negative or affirmative form, at his pleasure. The party, on whom the onus of proof lies must, in order to succeed, establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversarys case. He must succeed by the strength of his own right and the clearness of his own proof. He cannot be heard to say that it was too difficult or virtually impossible to prove the matter in question as in the case of Shiv Charan Singh v. Chandra Bhan Singh 3or a mere suspicion is not a proof of benami as in the case of Drigpal Singh v. Wife of LaldhariOjha.4 Where a party accepts the burden which is laid upon it by the trial Court without any demur or protest and allows the case to proceed on the basis throughout the trial, it cannot, when it fails to discharge it, turn round and say in appeal that the burden should not have been placed upon it. The general rule that a party who desires to move the Court must prove all facts necessary for that purpose (ss. 101 to 105) is subject to two exceptions :He will not be required to prove such facts as are especially within the knowledge of the other party (s. 106) He will not be required to prove so much of his allegations in respect of which there is any presumption of law (ss. 107 to 113), or in some cases, of facts (ss. 104) in his favour.

3 4

AIR 1988 SC 637 : 1988(2) SCC 12 AIR 1985 pat 110

The expression Burden of Proof means two different things. It means sometimes that a party is required to prove an allegation before judgement can be given in its favour ; it also means that on a contested issue one of the two contending parties has to introduce evidence. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fall. This burden will, at the beginning of a trial, lie on the party, but during the course of the trial it may shift from one side to another. At the end of a case when both the parties have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.

The term onus probandi, in its proper use, merely means that, if a fact has to be proved, the person whose interest it is to prove it should adduce some evidence, however slightly, upon which a Court could find the fact he desires the Court to find. It does not mean that he shall call all conceivable or available evidence. It merely means that the evidence he lays before the court should be sufficient, if not contradicted to form the basis of a judgement and decree upon that point in his favour. Where there is an admission by a party the burden of proof shifts and it is for the party making the admission to explain it away. In the matter of proof, in a civil case, a defendant cannot take up the same stand as an accused in a criminal case. In civil cases, unlike criminal ones, it cannot be said that the benefit of reasonable doubt must necessarily go to the defendant. Even the preponderance of probabilities may serve as a good basis for decision. The Supreme Court has held that in a civil case involving allegation of charges of criminal or fraudulent character insistence on proving charges clearly and beyond reasonable doubt is wrong. In a tort action for malicious prosecution, if the plaintiff fails to prove that the criminal complaint was lodged against him without any reasonable and probable cause, his suit fails. There is no ritualistic formula nor a cut and dried test to law down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either candidate, that should be sufficient to vitiate the election while insisting on standard of strict proof, the court should not extend or stretch this doctrine to such an extent as to make it well knigh impossible to prove an allegation of corrupt practice. Such an approach

would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. In a criminal trial the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution and on its failure it cannot fall back upon the evidence adduced by the accused in support of his defence to rest its case solely thereon. In criminal cases it is for the prosecution to bring the guilt home to the accused. It is not correct to say that when the prosecution has adduced such evidence as the circumstances and nature of the case require, it is for the accused to establish his innocence for the reason that there is no burden laid on the prisoner to prove his innocence and it is sufficient if he succeeds in raising a doubt as to his guilt. In a criminal trial burden of proof squarely rests upon prosecution. Examining defence evidence first and then examining prosecution evidence is improper. In an accusatory system, such as that prevailing in India, it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence; it is not for the court to speculate as to how the crime has been committed. It is for the prosecution to determine what witnesses it should call in support of its case. Witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution. Prosecution cannot succeed just by showing that the defence raised is suspicious. Where the prosecution could not prove beyond a reasonable doubt that the accused was connected with the destruction of a film, the accused was given the benefit of doubt.. Recovery of articles by itself does not connect anybody with the crime. Connection of the accused with the articles must be proved beyond a reasonable doubt. Even total silence of the accused as to any defence on his part does not lighten the prosecution burden to prove its case satisfactorily. In M.S. Reddy v. State Inspector of Police, A.C.B., Nellore initial burden of proof lies on the prosecution. It cannot take advantage of weaknesses of the defence or the inconsistent stand taken by the accused. It must stand on its own legs basing on the evidence that has been let in by it. It is a well established principal of law that the accused persons are under no obligation to substantiate their defence version. They are simply to come forward with a probable and plausible version. As against this heavy burden on the prosecution the accused can claim the benefit of his defence just by showing a balance of probabilities. He has not to prove his defence beyond a reasonable doubt. The prosecution proved in a case that an official had accepted a sum of

money which was intended to be a bribe. The Supreme Court said that the accused must prove his justification and he can do so on a balance of probabilities and need not prove beyond reasonable doubt. Prosecution can not derive any advantage from falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt.

Proof of Death Section 107 and 108 deal with the burden of proving the death of a person and proving that a person was, alive in certain circumstances. The sections say: 107.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 108.Provided that when it is proved that he has not been heard of for seven years by those alive is shifted to the person who affirms it Therefore if a person was known to be alive within 30 years the presumption is that he is alive , and if the person has not been heard of for seven 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 Mohd Sharif v Bande Ali.5 , the appellants sought to redeem a mortgage made by their uncle. According to them their uncle , the original mortgagor, disappeared about 18n years ago , that he must be presumed to have been dead for last 11 years, that their father must deemed to have succeeded his brother during time and that after their fathers death , they, as their 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 mere fact of death. If the period which has elapsed since the time that the person whose death was last heard of is not more than 7 not in subsequent periods. If the time of death is in issue or is a relevant fact, it must be established by independent direct or circumstantial evidence
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(1861) ILR 34 ALL 36

Burden in case of certain relations Section 109 deals with the burden of proof as to the discontinuance of relationship in case of partners , landlord and tenant and principal and agent .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 cesed to stand , to each other in those relationships respectively, is on the person who affirms it . The presumption in these cases is that once the relationship is proved to have existed the relationship continues , and whoever affirms that such relationship ceased must prove it. Section 110 deals with the presumption of ownership as to the ownership drawn from possession and the corresponding burden of proof . When the question is whether any person is the owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms he is not the owner That is why it is said that possession amounts to nine points in law. The plaintiff claimed to be pattedars of the land in question. They proved long and peaceful enjoyment of the land. Though there was no proof of grant of patta and acquisition of the title , a presumption of ownership arise rose in favour of plaintiff.6 Section 111 deals with the burden of proving good faith in transactions where one party is in relation of active confidence towards the other. Where there is a question as to good fasith of a transaction between parties , one of whom stands to other in position of active confidence, the burden of proving the good faith of transaction os on the party who is in a position of active confidence.

.Burden in case of terrorists Section111- A states Where aperson is accused of having commited any offence specified in sub section (2), in-

Chief Conservator of Forests v Collector , (2003) 3 SCC 472

a) Any area declared to be a disturbed area under any enactment , for the time beign in force , making provisions for the suppression of disorder and restoration and maintenance of public order, or b) Any area in which there has been , over the period of more than one month extensive disturbance of public peace. And it is shown that such person had been at a place in such area at atime 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 an offence 2.The offences reffered to in sub-section(1)are the following namely (a) an offence under sction 121, section 121-A, section 122 or section 123 of the Indian penal code (b)criminal conspiracy or attempt to commit , or abetment of, an offence under Section 122 or Section 123 of the Indian Penal Code.
The burden of establishing the case is on A under section 101 . The burden of introducing evidence under section 102 is also on A , because , if no evidence is adduced , the presumption of innocence will operate in favour of B , and the admission being a particular fact , asserted by A, A must introduce evidence to prove it, there being no rule of law anywhere throwing the burden on B. Burden in case of dowry death Section 113 deals with this in this section if a women committed suicide within a period of seven years of marriage it is presumed that the the women committed suicide due to the pressure of her husbands family here the burden of proof is on the husbands family to prove that the lady has not committed the sucide de to their pressure.

Burden in certain cases of rape Section 144-A is as follows In a prosecution for rape under clause (a) or clause (b) or clause (c)or cluse (d) or clause (g) of sub section (20 of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of woman alleged to

have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent In Vallicheruku Village Panchayath v Nori Venketrama Deekshitulu 7, 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. Burden of proof in criminal cases The burden of proof in criminal cases rests over the prosecution. This rule is a part of the Comon law in England which is followed in this country. Section 3 of the Indian Evidence act indicates the Standard of proof.When it is said that a person accused of a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. He cannot be convicted when there is the least fair doubt in the minds of the Courts. The prosecution cannot be permitted to take advantage of the weakness in the defence version. The prosecution have to prove the guilt of the accused de hors this weakness.8it is the duty of the prosecution to prove the accuseds guilt. It is the golden thread in the web of the English Criminal Jurisprudence and it is still the basic principle of our criminal law.As observed by his Lordship Sinha.J.,(as he then was) in C.S.D. Swami v. State 9 :it is the established principle of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged and that the burden never shifts on to the accused to disprove the charge framed against him.10 It is not fior the accused to prove his innocence. It is always for the prosecution to bring out evidence or circumstances to prove the guilt of the accused person.11It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt , the accused can discharge his onus by establishing a mere preponderance of probability.12 Falsity of the defence may be by circumstance, sometimes a strong circumstance, to be taken into consideration in establishing the guilt of the accused but conviction cannot be based only
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1999 Supp (2) SCC 228 VithobaCamproMangueshkar v. State ,A.I.R. 1967 Goa 18 at p.21:1967 Cr.L.J.191 9 A.I.R 1960 S.C.7 10 See ChackoMathai v. State of Kerela ,A.I.R.1964 Ker. 222 at p.224:1963 K.L.T 4501963)1 Ker.458 11 ShangarasinghLadha Singh v. State ,A.I.R 1964 Punj.400 at p.4011964)2 Cr.L.J.338 12 Pratapv.State of Uttar Pradesh ,A.I.R 1976 S.C 966 at p.969

on the falsity of defence. It is always for the prosecution to prove its case and this may be by adducing either positive evidence or by establishing such circumstances against the accused that the Court is driven to the conclusion that it was the accused and the accused only who could be guilty of the crime.13 It is not for him, who is free and who has not transgressed the law, to show why he should remain free and why his freedom should not be qualified;it is for him who wishes to take away that freedom or wishes to qualify it, to establish circumstances which, by the force of law, would operate either in defeasance of, or in derogation of, that freedom.14 The nature of burden of proof that lies on the prosecution was considered in the case of Sarju Prasad v. State of Bihar.15It was held by the Supreme Court that where the accused person caused an injury to the complainant with a knife in a vital region but no vital organ was cut, the act of the accused person would not by itself be sufficient to take his case out of the purview of Sec.307, I.P.C.,but in order to bring the offence home to the accused , the prosecution must establish that his intention or knowledge was one of the three kinds as mentioned in Sec.300 ,I.P.C. IT was further held that the State of mind of the accused had to be inferred from the surrounding circumstances, including motive which would be a relevant circumstance. From what has been stated above, it is abundantly clear that the mere circumstance that a knife had been used as a weapon of attack on vital part of the body as in Sarju Prasads Case, 16 or a firearm was used to cause injuries to the victim 17 would not ne sufficient to establish that the accused had commited an offence punishable under Sec.307,I.P.C.Further evidence has to be led by the prosecution to establish the intention of the accused to cause death or his knowledge as envisaged under Sec.300.I.P.C.The burden of proof is on the prosecution and not on the Accused. The cardinal principle to be observed in the trial of a criminal case is that the accused should always be considered to be an innocent person till the criminal acts alleged against him are affirmatively and satisfactorily proved. This presumption of innocence continues all throughout the trial and till the disposal of the case in the final court of Appeal. The approach
13 14

Ganguram v. State of Rajasthan , 1964 Raj .L.W 279 at p. 284 I.I.R.9 All 460 15 A.I.R 1965 S.C 843 16 Ibid 17 Vide Sec.324,I.P.C

of the Court of Appeal should be therefore to assess the entire evidence and the materials before him to see if the case against the accused has been affirmatively proved beyond all reasonable doubts. Burden Of Proof in Civil Cases The plaintiff has the right to begin unless where the defendant admits the facts alleged by the plaintiff and contents that either in point of law or on some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks, in which case, the defendant has the right to begin. The other party shall then state his case and produce his evidence, if any, and may then address the court generally on the whole case. Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce evidences on those issues or reserve it by way of answer to evidence produced by the other party. In the latter case, the party beginning may produce evidences on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning. The party beginning will then be entitled to reply generally on the whole case. However, where the party beginning elects, in any such case, to adduce, in the first instance, evidence on all the issues, he will not be entitled to call fresh evidence to rebut the evidence adduced subsequently by the opponent, on the issues as to which the burden of proof lay upon such opponent. In other words, he cannot split the case. In a case in which the burden of proof on all issues lies on the party beginning, he must adduce all the evidences in the first instance, a prima facie case, and after the case has been shaken by the defendants evidence, call fresh evidence to confirm such a prima facie case.

In the matter of proof, in a civil case, a defendant cannot take up the same stand as an accused in a criminal case. In civil case, unlike criminal ones, it cannot be said that the benefit of reasonable doubt must necessarily go to defendant . Even the preponderance of probabilities may serve as a good basis for decision. The Supreme Court has held that acivil case involving allegation of charges of criminal or fraudulent character insistence on proving charges clearly not beyond reasonable doubt is wrong. In a tort action for malicious prosecution , the plaintiff failed to prove that a criminal complaint was lodged against without any reasonable cause . His suit failed

Deposit of money in wifes name does not amount to gift. It is a resulting trust . If anybody says it was a gift he must prove it . Where the question was of proving corrupt practice of undue influence under Representation of the People Act , 1951, the supreme court said There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence but if all the circumstances taken together led to irresistible interference that the voters were pressurised , threatened or assaulted at insistence of either candidate , that should be sufficient to vitiate the election while insisting on standard of strict proof , the Court should not extend or stretch this doctrine to such an extend as to make it well knigh impossible to prove an allegation of corrupt practice, Such an approach would defeat and frustrate the very laudable and sacrosanct object of the act in maintain purity of electrol process Where an assessee of property tax pleaded that the contractual rent should not be regarded as standard rent and that therefore rateable value had not been properly fixed, the onus of proof was on the assessee. Where a person claiming tenancy produced a certified copy of admission of his tenancy given by landlord, burden of proof lay to landlord to disapprove .In determining whether a temple/trust is public or private the burden of proof lies with the person asserting that the temple/trust is private. In a claim of damages for breach of contract, the burden is on the complainant to show the basis on which the damages claimed by him have been quantified. Conclusion Burden of proof is finally states about the aspect wherein the person who says need to prove the fact or rather one who alleges needs to prove the same. This has been beneficial in many ways as it helps the other side to understand the alligations on him/her without having the sole and the major burden of disapproving it. It has been adapted by the Indian Legal System in a very successful way till this date.

BIBLIOGRAPHY 1. The Law of Evidence, Ratanlal & Dhirajlal, Eastern Book House 2. Law of Evidence ,Vepa P. Sarathi 3. www.wikipedia.com 4. www.britanica.com 5. www.worldlii.com 6. www.westlaw.com
7. www.legal-dictionary.thefreedictionary.com 8. www.legal-explanations.com