Burden of Proof and Onus of Proof.

Initial Burden on one who takes affirmative of the issue

A party who wishes the court to give a judgement on the existence of a fact should prove the fact. K. Prasad v. G.Prasad, A.I.R. 2001 Pat. 1 A person who questions a gift deed on the ground of fraud has to prove that fact. In this case the legal heirs who would have otherwise inherited the donated property questioned it. Where a landlord seeks eviction on the ground of bonafide personal need, burden lies upon him to establish that he is genuinely in need of accommodation. S. Benezer v. Velayudhan, A.I.R. 1998 S.C. 746.

Onus and Burden Burden of proof lie on the person who has to prove a fact and it never shifts. Onus of proof shifts and it includes assertion of a proposition or fact which is not self-evident R. Somabhai v. Babubhai, AIR 1982 Guj. 308 Burden of proof as a matter on law and pleadings never shifts (section 101 whoever desires any Court to give judgement as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exists). Onus of proof as a matter of adducing evidence shifts (section 102 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).

premises had been sub-let by the tenant. The landlord proved that somebody other than the tenant was using the premises. The landlord had discharged his initial burden.

Civil Cases and preponderance of probability

The presumption of sub-letting arises when the premises are used by other persons other than tenant. A tenant will not allow anyone else to stay within the premises without consideration. The burden shifts on the tenant to show whether the premises are sublet or not.

Section 105 Ind. Evidence Act. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any general exceptions in IPC or special exception or proviso of IPC is upon him and the court shall presume the absence of such circumstances. Section 105 does not indicate the nature and standard of proof required.

Section 105, continued The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as a prosecution is required to prove in a criminal charge. V. Subhramani v. State of Tamil Nadu, AIR 2005 SC 1983 the accused can discharge the burden of proving right of private defence by showing the preponderance of probabilities. Shah Guman Mal v. State of AP, AIR 1980 SC 793 the accused was prosecuted for possession of smuggled gold under the Customs Act.

Case continued. The accused admitted that it was a foreign metal and that it was delivered to him by a certain person whose identity he failed to disclose. It was held that the accused knew who that person was and whether he had any license and burden lay upon him. From his refusal a presumption arose under section 114 that the matters were against him.

Defense can raise reasonable doubt in the minds of the Court

In criminal cases the defendant is not always required to prove the fact beyond reasonable doubt, raising reasonable doubt is enough. Following a serious dispute with his workers, the owner was on way back home by a jeep. Suddenly he saw two of his workers raising their hands to stop the jeep. They then tried to follow and close in on the jeep.

The case continued In the apprehension that that they might harm, the accused shot at them and they died. The Supreme Court held that the evidence on record did not establish that the jeep was pelted with stones and damaged, but it established a reasonable possibility of the apprehension of personal harm. The circumstances justified the exercise of private defence, but the limit was exceeded. M. Ramzani v. State of Delhi, AIR 1980 SC 1341.

Burden of proof of death of person Section 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. In R v. Lumley, 1869 LR 1 CCR 196, the prisoner, a woman was prosecuted for bigamy. She married a man in 1836, left him after seven years in 1843 and married another in 1847. Nothing was heard of her first husband after she left him.

Case continued The prosecution gave no evidence of his age, or of the fact that he was alive. But the judge felt that just because he was alive for four years before the marriage, there was the presumption that he was still alive and consequently the prisoner was convicted. On Appeal, the conviction was quashed. In an indictment for bigamy, it is incumbent on the part of the prosecution to prove that the husband or wife was alive at the date of the second marriage. The existence of the party at the antecedent date may not afford a reasonable inference that he is living at the subsequent date. The law makes no presumption either way.

Burden of proving that a person is alive who has not been heard of for 7 years Section 108 the burden is on the person who affirms it. M Sharif v. Bande Ali, ILR, 1911, 34 All. 36, M mortgaged certain property to the defendant in 1890. Thereafter he disappeared and nothing was heard of him again. He had no heir. His brother D, who should have inherited the property, died about 14 years after Ms disappearance.

Case contiued The heirs of D filed a suit for redemption of the mortgage and contended that as M disappeared 18 years ago, he must be presumed to have been dead for last 11 years, and D who was alive till a later date, must be deemed to have succeeded him as a heir. The Court held that there is no presumption that M died in the first 7 years or in the last 7 years. The presumption merely is that he was dead.

Proof of good faith in transactions. Section 111- where one party is in relation of active confidence the burden of proving the good faith is on him. Daya Shankar v. Bachi, AIR 1982 All. 376 The plaintiffs uncle, being childless, used to treat the plaintiff as his own son. He was eighty years old. him into a railway hospital.When he became sick, the plaintiff admitted

Case continued Within 8 days he executed a gift deed of his house in favour of the plaintiff. After a month his other heirs obtained another gift deed favouring them. He died 6 months later. The court laid down that the deed in favour of the plaintiff was executed in abnormal circumstances. The burden of proving good faith was cast upon him which he did not discharge. The deed of gift was set aside.

Birth during marriage, conclusive proof of legitimacy

Essential conditions for the presumption of legitimacy (section 112, Ind. Evid. Act) The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved, within 280 days after dissolution, the mother remaining unmarried. The parties to the marriage should have had access to each other at any time when the child could have been begotten.

Access or non-access must be proved satisfactorily

C. Venkateshwaralu v. Venkatanarayana, AIR 1954 SC 176. In this case the husband tried to show that he had provided separate residence to his wife and never visited her. The wife alleged that the husband used to frequently visit her. The husband was unable to prove his nonaccess and the child born by the wife was presumed to be a legitimate child.

Gautam Kundu v. State of West Bengal Gautam Kundu case, (1993) 3 SCC 418. The criminal law standard of proof beyond reasonable doubt could not be applied because it would create the risk of many a children being rendered homeless. The court considers that very rarely in Indian society a lady with children would claim that she is the wife of a person who is not her husband.

Goutam Kundu Case continued The Supreme Court held that Courts in India cannot order blood test as a matter of course. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising u/s 112. The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as bastard and the mother as an unchaste woman. No one can be compelled to give sample of blood for analysis.

Blood Group Test The Courts do not order any body to submit himself for blood group test. No one can be compelled to give sample of blood for analysis. Where the presumed father of the child prayed for blood test for the purpose of denying legitimacy and liability to maintenance, his prayer was not accepted. Gautam Kundu v. State of West Bengal, AIR 1993 SC 2295.

DNA Test Kanchan Bedi v. Gurpreet Singh, AIR 2003 Delhi 446. In an application for grant of maintenance to a minor child, the alleged father denied his parentage. He showed no concern for the minor child. The Court directed him to submit to DNA test. The Court said that there was no violation of a persons rights in directing him to take the test particularly when a childs right to maintenance was involved.

Section 114 Court may presume existence of certain facts.

The Court may presume that a man, in possession of stolen goods is either a thief, or has received the goods knowing them to have been stolen. An accomplice is unworthy of credit, unless he is corroborated in material particulars. A bill of exchange was accepted or endorsed for good consideration. That evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it.

Presumption of human conduct Moti v. State of UP (AIR 2003 SC 1897) In a case involving the murder of her husband, the wife of the deceased stated that the incident occurred after she cooked dinner and served the same to her father and husband whereas the mother-in-law of the deceased stated that the dinner was not cooked when the incident occurred. The Court presumed that in a village where there is no electricity, the villagers after finishing their work normally have their meals early. It was held that the evidence of the wife even after being contradicted, was worthy of acceptance.

Conclusive Proof There are three cases where conclusive presumption may be drawn, they are sections 41(judgements in rem relating to probate, admiralty, matrimonial and insolvency jurisdiction), 112 (legitimacy) and 113 (cessation of territory). In these cases enquiry is altogether excluded. It is undesirable to enquire into the paternity of the child whose parents have access to each other. In Kanti Devi v. Poshi Ram, AIR 2001 SC 2226, the Supreme Court held that even a DNA test that indicated that the person is not the father of the child would not be enough to rebut the conclusiveness of marriage as proof of legitimacy of child

Incapability of husband C. Kutty v. Subhramainan, AIR 1987 Ker. 5, The parties married in 1967. The husband underwent vasectomy operation on 8.01.1976. Both were living together and the wife gave birth to a child on 30. 8. 1978. The husband disputed the paternity of the child but failed to prove that when the child was conceived he was unable to procreate. The Court presumed the child to be legitimate.

Withholding Evidence {IIlustration (g)} Tulasa Priya v. A.P. State Council Of Higher Education, (1998) 6 SCC 284 In an admission test to medical colleges, a candidate was given wrong type of answerbook which was replaced by a correct one after sometime. The candidate only attempted 170 questions out of 200 and got 94.555% marks. She said that her answer book should be assessed on the basis of 170 questions.

Case continued The examination authorities alleged that the right type of answer book was supplied to her without any loss of time. The candidate requested that her first answer book should be produced to assess the loss of time which the Authorities failed to do. An adverse inference was drawn that against them that if the same was produced that would have substantiated hr version.

Effect of non-production of witness State v. Abdul Aziz, ILR (1971) 21 Raj 209 The following factors should be considered. Whether the witness is in a position to give relevant and material evidence. Whether witness is within easy reach of the prosecution or defence The nature and intensity of the controversy raised by the defence on which the witness is supposed to testify Persuasiveness of the evidence which is on the record

It is not necessary to examine all the possible witnesses

A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534 In a matrimonial dispute both the husband and the wife were doctors serving in the same hospital. The wife made allegations of adultery with the nursing staff against her husband The husband did not examine any witness from the hospital staff to rebut the allegations. High Court drew an adverse inference against the husband Supreme Court held that the High Court erred in doing so without discussing the sufficiency of other evidence to sustain the allegation of cruelty by the husband against the wife.

Withholding of documents (civil) GK Srivastav v. State of Bihar (AIR 2005 SC 3123) A public servant accused of accepting bribe claimed to be on leave on the relevant day. He failed to produce the casual leave register of the department

Case continued He produced the application made for casual leave on that particular date and he had examined an officer of the department as witness to prove the absence on that date. An adverse inference was drawn against him for non-production of the said register. The Supreme Court held that there was no reason to discard his application for casual leave and the evidence of the departmental officer and the Courts below erred in drawing an adverse inference against him.

Estoppel Section 115 When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed to deny the truth of the thing in a suit or proceeding. Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553, property was sold by A pretending to be the owner when he was not the owner. Subsequently he became the owner of the property by succession and wanted to avoid the sale on the ground of his lack of title at that time. He was held to be estopped from doing so.

Representation Sarat Chunder Dey v. Gopal Chander Laha, (189192) 19 IA 203. A muslim died leaving a wife, son and daughter. The property was in the wifes possession. She claimed to have gift deed of her husband in her favour which was invalid. She mortgaged the property and the mortgagees interest was purchased by the defendant Sarat Chander. Subsequently the son and daughter sold their shares in the property to Gopal Chunder. Gopal Chunder sued to recover possession of the property from mortgagee Sarat Chunder.

Case continued. The defendant claimed an estoppel against him. The mother had no right to mortgage the share of property of the son and the daughter and it was void. The defendant claimed that the son and the daughter should not be permitted to say the mortgage is void. They had allowed the mother to be in possession and the son acted on her behalf in executing the mortgage. That was a representation that the mother had the right of the mortgage. The mortgagee acted on the representation. The Privy Council held that the son and plaintiff were estopped but there was no estoppel against the daughter.

Section 41 TP Act Principle of section 41 of TP Act is similar to principle of section 115 of Ind. Evid. Act. When an owner transfers property with apparent ownership and right of disposition thereof, he would be estopped from claiming the title against a person to whom the original transferee disposed of the property and who took it in good faith and for consideration. B. D. Chakravarty v. N.C. Pal, ILR (1901) 29 Cal 306. In 1894 the appellant agreed in writing to give the respondent a lease of a plot of land for the purpose of erecting buildings from year to year at an annual rent of Rs180.

Case contd. The respondent took possession. In 1903 he wished to build a pucca house upon the land and in answer to inquiries the appellant wrote a letter stating that the lease is a permanent lease though the rent was liable to enhancement. Acting upon that letter the respondent build the house. The appellant knew of the building and received a bonus in respect of it In 1916 the appellant sued to eject the respondent from the land.

Case continued. It was held that whether or not the letting was a permanent one upon the construction of the agreement, the statement in the letter was the representation of fact and the appellant was estopped from denying that the letting was of that character though subject to enhancement of rent.

Estoppel of tenant and licensee Section 116 Estoppel of tenant binds him till he is in possession. A tenant is not permitted to deny the title of his landlord. An estoppel arises as soon as the relationship of landlord and tenant is created. Harbans Singh v. Tekamani Devi, AIR 1990 Pat. 26 The tenant after having accepted the landlord, cannot afterwards say that he was not entitled to grant the tenancy. The Tenant is free on the expiry of the tenancy to question the title of the landlord.

Inadmissible statements and discovery R. v.Warickshall, (1783) 1 Leach 263 Whether a confession is admissible or inadmissible, any fact, the knowledge of which has been obtained through it, may still be proved by the prosecution. Also mentioned in Kuruma v. R, (1955) AC 197. R. v. Sadler, (1970) 2 All ER 12 The rules regarding confession and admission have no application to the discovery of material evidence which has itself probative value. Emperor v. Ganu Chandra Kashid, (931) 34 Bom LR 303. Where the acused states to the police, I will produce the share which I received in such a and such dacoity the statement is divisibe into the following parts.

Section 27 Ind. Ev. Act (1) an admission that there was dacoity, (2) an admission that the accused took part in it, (3) and admission that he got part of the property, (4) a statement as to where the property is, The first 3 parts are not admissible in evidence, having regard to the provisions of Ind. Ev. Act, but the 4th part is admissible.

Section 136 Party seeking to put a document in evidence must show under which section it is admissible. Section 141 Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. The prohibition of putting leading questions in examination in- chief and reexamination is not absolute. The Court may allow it under Order XVIII, Rule 11, CPC.

Leading Questions Section 143 Leading question may be asked in cross-examination. LP v. Inspector General of Police, (1954) All LJ 316 The reason why leading questions are allowed to be put to an adverse witness in cross-examination is that the purpose of a cross-examination being to test the accuracy, credibility and general value of evidence given, it sometimes becomes necessary for a party to put leading questions in order to elicit facts in support of his case, even though it may be entirely unconnected with facts testified to in an examination-in-chief.

Section 145 A witness may be cross-examined as to any statements as to relevant facts made by him on a former occasion, in writing, without showing the writing to him or proving the same. Md. Abdul Azeez v. State of AP, 2003 CrLJ 4410 In a proceeding u/s 498A of IPC against husband instituted by the wife, the wife alleged that the husband pressurised her to bring money from her parents for construction of additional accommodation. Certified copy of the deposition of the complainant filed by her in earlier maintenance case, cannot be used in evidence in view of section 145 Ind. Evi. Act, as omission of said allegation in maintenance case cannot be used for the purpose of contradiction since matter of demand of money was irrelevant in said maintenance proceeding.

Section 146 Witness can be asked questions to test his veracity, or to discover who he is, or to shake his credit. As long as the cross-examiner confines his questions to the points of testing veracity of a witness or discovering the status in life, there seem to be n o limits to his power of putting questions. The moment he undertakes the task of impeaching the character of the witness, section 147 to 150 protect the witness and impose restraints upon assertions levelled against him. Deb Narayan Halder v. Anushree Halder, AIR 2003 SC 3174 In a proceeding for maintenance by the wife, the cross-examining counsel made a suggestion of to the witness, the landlady, produced by the husband.

Case continued The suggestion was that the husband he was in love with her daughter-in-law and that is why he used to go her house which was stoutly denied by the witness. It was held that putting such a question to the witness, when there was no such complaint in the application and the respondent side had stated nothing to this effect, should not have been permitted, particularly when it reflected not only on the character of the husband but also on another lady who was not a party to the proceedings.

Section 148 The section deals with the exercise of discretion of the court, while deciding whether a witness should be compelled to answer a question in cross-examination or not. Rex v. Clarke, (1817)2 Stark 41 On an indictment for rape, or for an indecent assault, the prosecutrix cannot be asked in cross-examination whether she had connection with another person not the accused, and if she denies it, evidence cannot be called to contradict her.

Section 149 The questions which are contemplated under section 148, ought not to be asked unless the person asking the question has reasonable ground for thinking that the imputation which it conveys is well founded. Deepchand v. Sampathraj, 1970 CrLJ 260 Defamatory questions were put by the lawyer to a witness in cross-examination, on the clients instructions and the imputation conveyed by those questions were per se defamatory. It was held that there was no reasonable basis for putting those questions and the client was liable under section 500 IPC, though the lawyer could take protection under the 9th exception to section 499, IPC.

Section 150 If the Court is of opinion that any question was asked without reasonable grounds, it may report the circumstances of the case to the High Court or other Authority to which the barrister, pleader, vakil, or attorney who asked the questions is subject in the exercise of his profession. Section 151 Indecent and scandalous questions are not allowed by the Court unless they relate to facts in issue. State of UP v. Raghubir Singh (1997) 3 SCC 775 The fact in issue was not concerning the paternity of a child rather it was concerned with the issue whether the child /son was kidnapped by the accused and murdered. It was held that the Court should not have allowed indecent and scandalous imputations on the moral character of the witness, the mother of the victim.

Section 152 The section empowers the Court to forbid question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form. Fatima Rizwana v. State, (2005) 1 SCC 582 In a case concerning commission of offenses relating to pornographic materials, evidences as to the subject-matter which could cause embarassment to the lady witnesses/ accused , etc., the Supreme Court held that Presiding Officer could make adjustments, arrangements in the procedure so as to minimise embarassment to himself/ herself and the witnesses.

Section 155 The credit of a witness may be impeached by the adverse party, or the party who calls him, (a) by the evidence of persons who testify that they believe him to be unworthy of credit, (b) by proof that the witness has been bribed, (c ) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Dinkar Bandhu Deshmukh v. State AIR 1970 Bom 438 Opinion evidence, as a general rule is not admissible. Section 155(1) is an exception to that rule. To draw an inference against the credibility of a witness without anybody going into the witnessbox in the manner contemplated by secton 155 (1) would not be legitimate.

Rama Reddy v. VV Giri Rama Reddy v. VV Giri, AIR 1971 SC 1162 Even tape recorded evidence can be used for the inference against the credibility of a witness, although the standard of proof differs as it falls under the category of documentary evidence.