burden of proof.doc

7/27/2019 burden of proof.doc

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Q. What do you understand by Burden of Proof? On whom the does theburden of proof lie? State the rules of determining Burden of Proof in a suitor proceeding. When does the burden of proof shift to the other parties?Are there any exceptions?

eneral !oncept of Burden of Proof

The responsibility to prove a thing is called burden of proof. When a person is required to prove theexistence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many factsare alleged and they need to be proved before the court can base its judgment on such facts. The burden ofproof is the obligation on a party to establish such facts in issue or relevant facts in a case to the requireddegree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege thatall the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is anobligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove afact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section "#"defines burden of proof as follos ! When a person is bound to prove the existence of any fact, it is said thatthe burden of proof lies on that person.

The important question is ho is supposed to prove the various facts alleged in a case. In other ords, onhom should the burden of proving a fact lie" The rules for allocation of burden of proof are governedprimarily by the provisions in #ection $%$ to $%&. The rules propounded by these sections can becategori'ed as (eneral rules and #pecific rules.

eneral rules

$ule " % As per Section "#"&specifies the basic rule about ho is supposed to prove a fact. It says thathoever desires any )ourt to give judgment as to any legal right or liability dependent on the existence offacts hich he asserts, must prove that those facts exist. For example, A desires a )ourt to give judgmentthat * shall be punished for a crime hich A says * has committed. A must prove that * has committed thecrime. Another example ! A desires a )ourt to give judgment that he is entitled to certain land in thepossession of *, by reason of facts hich he asserts, and hich * denies, to be true. A must prove theexistence of those facts.

Facts can be put in to categories ! those that positively affirm something and those that deny something.For example, the statement, +A is the oner of this land+ is an affirmative statement, hile +* is not theoner of this land+ is a denial. The rule given in Section "#"means that the person ho asserts the

affirmative of an issue, the burden of proof lies on his to prove it. Thus, the person ho maes the statementthat +A is the oner of the land+, has the burden to prove it. This rule is useful for determining the onershipof the initial burden. Whoever ishes the court to tae certain action against the opposite party based oncertain facts, he ought to first prove those facts.

-oever, it is not very simple to categori'e a fact as asserting the affirmative. For example, in the case ofSoward 's (egatt& ")*+, a landlord suing the tenant asserted that the tenant did not repair the house. -ere,he as asserting the negative. *ut the same statement can also be said affirmatively as the tenant let thehouse dilapidate. In this case, (ord AB,-$ observed that In ascertaining hich party is asserting theaffirmative the court loos to the substance and not the language used. ooing at the substance of thiscase, the plaintiff had to prove that the premises ere not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to begin ho insubstance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of ProofThe term *urden of /roof is used in to difference senses ! the burden of proof as a matter of la andpleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtledistinction beteen burden of proof and onus of proof, hich as explained in the case of $anchhodbhai's Babubhai A,$ "/)0. The first one is the burden to prove the main contention of party requesting theaction of the court, hile the second one is the burden to produce actual evidence. The first one is constantand is alays upon the claimant but the second one shifts to the other party as and hen one partysuccessfully produces evidence supporting its case. For example, in a case here A is suing * for paymentof his services, the burden of proof as a matter of la is upon A to prove that he provided services for hich* has not paid. *ut if * claims that the services ere not up to the mar, the onus of burden as to adducingevidence shifts to * to prove the deficiency in service. Further, if upon providing such evidence, A claims


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that the services ere provided as negotiated in the contract, the onus again shifts to A to prove that theservices meet the quality as specified in the contract.

The next rule determines ho has the onus of proof.

$ule 0 %As per Section "#0&the burden of proof in a suit or proceeding lies on that person ho ould fail ifno evidence at all ere given on either side. The folloing illustrations explain this point !

,llustration " % A sues * for land of hich * is in possession, and hich, as A asserts, as left to A by theill of ), *0s father. If no evidence ere given on either side, * ould be entitled to retain hispossession. Therefore the burden of proof is on A.,llustration 0 %A sues * for money due on a bond. The execution of the bond is admitted, but * says that itas obtained by fraud, hich A denies. If no evidence ere given on either side, A ould succeed, as thebond is not disputed and the fraud is not proved. Therefore the burden of proof is on *.

$ule * %As per Section "#*, the person ho ants the court to believe in an alleged fact is the one ho issupposed to prove that fact unless it is provided by any la that the proof of that fact shall lie on anyparticular person. For example, A prosecutes * for theft, and ishes the )ourt to believe that * admitted thetheft to ). A must prove the admission. Another example ! * ishes the )ourt to believe that, at the time inquestion, he as elsehere. -e must prove it. Further, as specified in Section "#1, if a person ants thecourt to believe in a fact that assumes the existence of another fact, it is up to the person to prove the otherfact also. For example, A ishes to prove a dying declaration by *. A must prove *0s death. A ishes toprove, by secondary evidence, the contents of a lost document. A must prove that the document has been

lost.

Specific $ulesThese rules specifically put the burden on proving certain facts on particular persons !

$ule "! As per Section "#+, hen any fact is especially ithin the noledge of any person, the burden ofproving that fact is upon him. When a person does an act ith some intention other than that hich thecharacter and circumstances of the act suggest, the burden of proving that intention is upon him. Forexample, A is charged ith traveling on a railay ithout a ticet. The burden of proving that he had a ticetis on him.

$ules of Presumption %Section "#2and "#)say that if a person as non to be alive ithin 1% yrs thepresumption is that he is alive and if the person has not been heard of for seven years by those ho havenaturally heard from him if he had been alive, the presumption is that the person is death. *ut nopresumption can be dra as to the time of death. Sections "#/establishes the burden in case of some

relations such as landlord and tenant, principle and agent etc. Further sections specify the rules aboutburden of proof in case of terrorism, dory death, and rape.

xceptions %

xception " % The general rule in criminal cases is that the accused is presumed innocent. It is theprosecution ho is required to establish the guilt of the accused ithout any doubt. At the same time, theaccused is not required to prove his innocence ithout any doubt but only has to create reasonable doubtthat he may not be guilty. Section "#3 specifies an exception to this general rule. When an accused claimsthe benefit of the (eneral 2xception clauses of I/), the burden of proving that he is entitled to such benefitis upon him. For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accusedto prove that he as insane at the time of committing the crime.In the case of 4 5 -ana'ati 's State of 5aharashtra& A,$ "/+0) explained this point. In this case,3anavati as accused of murdering /rem Ahuja, his ife0s paramour, hile 3anavati claimed innocence on

account of grave and sudden provocation. The defence0s claim as that hen 3anavati met /rem at thelatter0s bedroom, /rem had just come out of the bath dressed only in a toel4 an angry 3anavati sore at/rem and proceeded to as him if he intends to marry #ylvia and loo after his children. /rem replied, +Will Imarry every oman I sleep ith"+, hich further enraged 3anavati. #eeing /rem go for the gun, enclosed ina bron pacet, 3anavati too ent for it and in the ensuing scuffle, /rem0s hand caused the gun to go offand instantly ill him.-ere, #) held that there is a presumption of innocence in favor of the accused as a general rule and it is theduty of the prosecution to prove the guilt of the accused beyond any doubt. *ut hen an accused reliesupon the general exception or proviso contained in any other part of the /enal )ode, Section "#3of the2vidence Act raises a presumption against the accused and also thros a burden on him to rebut the saidpresumption. Thus, it as upon the defence to prove that there existed a grave and sudden provocation. In


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absence of such proof, 3anavati as convicted of murder.

xception 0 % Admission! A fact hich has been admitted by a party and hich is against the interest ofthat party, is held against the party. If the fact is contested by the party, then the burden of proof rests uponthe party ho made the admission. For example, A as recorded as saying that he committed theft at thesaid premises. If A ants to deny this admission, the burden of proof rests on A to prove so.

xception * % Presumptions! )ourt presumes the existence of certain things. For example, as perSection "#26"#), court presumes that a person is dead or alive based on ho long he has not been heardof. Section "#/, presumes that hen to people have been acting as per the relationship of landlord !tenant, principle ! agent, etc, such relationship still exists and anybody ho contends that such relationshiphas ceased to exist has to provide proof. Section ""#presumes that the person ho has the possession ofa property is the oner of that property. As per Section ""*A, When the question is hether thecommission of suicide by a oman had been abetted by her husband or any relative of her husband and it isshon that she had committed suicide ithin a period of seven years from the date of her marriage and thather husband or such relative of her husband had subjected her to cruelty, the court may presume, havingregard to all the other circumstances of the case, that such suicide had been abetted by her husband or bysuch relative of her husband. As per Section ""*B, hen the question is hether a person has committedthe dory death of a oman and it is shon that soon before her death such oman had been subjected bysuch person to cruelty or harassment for, or in connection ith, any demand for dory, the court shallpresume that such person had caused the dory death.

Thus, hen the presumption of the court is in favor of a party, the burden of disproving it rests on theopposite party

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