When to this section a person interested

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.


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(a) A desires a Court to give judgment that  shall be punished for a crime which A says  has committed.

A must prove that  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 be asserts, and which  denies, to be true.

A must prove the existence of those facts.


Burden of proof:

Section 101 lays down that a party who desires the court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. According to this section a person interested favourable judgment from the court must adduce evidence in support of his case. The general rule is that the proof of any particular fact lies on the party who alleges it and not on him who denies it.

The issue must be proved by the party who states on affirmative, not by the party who states a negative. Therefore, the burden of proving the fact lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. For example, where the landlord seeks eviction on the ground of bona fide personal need, burden lies upon him to establish that he is genuinely in need of accommodation. In a suit for declaration of title and possession the burden of proof is on the plaintiff to make out his little and possession. The plaintiff is, therefore, under obligation in the first instance to establish prima face case. In criminal case if a party wants the court to punish person for theft which he alleged, must prove the fact of theft. When a person alleges mala fide on the party of the authority it has to establish mala fides.

In a suit for mandatory injunction the burden would be on plaintiff to prove his case. He cannot plead that as defendant did not enter in witness box his evidence should be accepted. The court held that no adverse inference against defendant could be drawn merely because of his non-entering in witness box.

In a suit for declaration the sale deed was alleged to be forged and fabricated. The defendant disputed such allegations. Reframing issue as to whether the deed was valid burden was put on the defendant which was held to be not proper in absence of proof of fiduciary relationship.

Burden to prove that will was forged or that it was obtained under undue influence or coercion or by playing a fraud, is on a person who alleges it to be so. Similarly, the burden of proof as to existence of certain facts lies on person ascertaining any legal right or liability on the basis of those facts Burden of proving specific plea that signature had been obtained by coercion on balance papers, which were converted into an agreement, was obviously on defendant.

Affirmative facts and Negative facts:

According to general rule the burden of proving facts is upon the person who made the affirmative allegation. He is bound to establish prima facie case. In such a case the court looks to the substance and not the language. In election petition, the burden of proof lies on one who challenges election.” Whether a document in question was genuine or sham or bogus the party who alleged it to be bogus had to prove nothing till the party relying upon the document established it genuineness.

Generally, the issue of proving burden lies on the party who states an affirmative and not by the party who states negative. But “a negative allegation must not be confounded with the mere traverse of an affirmative one.” The meaning of negative rule is that if a given allegation whether affirmative or negative is very cogent part of his case the burden of proving such allegation lies upon him. Where there was heavy burden on the prosecution to prove every ingredient of offence and the defense had only to probabilise, there must be some materials to support the defense plea. Where both parties adduce evidence the question of proving burden loses its importance.

Onus probandi:

The term Onus probandi means “if a fact has to be proved the person whose interest it is to proved, it should adduce some evidence, however slight, upon which a court could find the fact he desires the court to find.” This kind of burden of proof is otherwise known as burden of adducing evidence. It does not mean that the party has to 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 judgment and decree upon that point in his favour. “The burden of adducing evidence rests on the party who would lose if no evidence is led by any of the parties.” For example:

A files a suit on the basis of a bond.  admits the execution of the bond but pleads that the bond was taken by practicing fraud upon him. In this case the execution of the bond is admitted and so if no evidence is led by  on fraud. A will get the decree.  will lose.

Section 101 deals with burden of proof on pleading whereas Section 102 deals with the onus of adducing evidence. The onus of adducing evidence is also known as onus probandi. It is also called “right to begin.” When the onus of proving guilt is on the prosecution, it must be proved beyond reasonable doubt and that onus never changes. The burden of proof of general exception is on the accused person. Such burden can be discharged by showing preponderance of probabilities.

Burden to lead evidence is shifting in nature:

The burden of proof arises from pleadings. It is determined by the substantive law and remains constant. It never shifts. But the burden of adducing evidence is shifting in nature. Once the maxim res ipsa loquitur is found to be applicable, the burden of proof would shift on the delinquent. According to Section 102 the plaintiff is bound to give evidence in support of prima facie case. If he fails or he leaves it imperfect, the onus will shift on the defendant. Then the defendant may either deny or adduce rebutting evidence to meet the case made out by the plaintiff. Thus evidential onus keeps shifting during the course of proceeding.

It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to another. Regarding shifting character of onus of proof the Supreme Court observed that where an agreement is challenged on the ground of its being a restraint of trade, the onus is upon the party supporting the contract to show that the restraint is reasonably necessary to protect his interest. Once this onus is discharged, the onus on showing that the restraint is nevertheless injurious to the public is upon the party attacking the contract.

Burden of proof—Examples:

Civil cases:

In civil cases it is not the rule that the benefit of doubt as applicable in criminal cases goes to the defendant. The preponderance of probabilities may serve as the basis of decision. A judge of a fact must find for the party in whose favour there is preponderance of proof.

Criminal cases:

In criminal cases the burden of proof lies on the prosecution. The guilt of the accused must be prove beyond reasonable doubt. It is well settled principle of criminal jurisprudence that move serious the offence, the stricter is the degree of proof. A higher degree of assurance. Thus, would be necessary to convict an accused. The conviction on the basis of conjectures and surmises and strongly placing the burden of proof on the accused, no clinching and convincing proof, conviction was set aside. In criminal cases the court always presume that the accused is innocent. It is not for the prisoner to prove that he is innocent. If there is a reasonable doubt as to whether the prisoner killed the deceased the prosecution has not made out the case the prisoner is entitled to an acquittal.

Matrimonial cases:

In matrimonial cases principle of burden of proof relating to civil cases are applicable. A party seeking divorce has to prove the fact of desertion and the same was without cause, even if the party going apart is not able to justify her conduct.

Vicarious liability:

The burden of proof of vicarious liability of the employer for the acts of employee lies on the plaintiff.

Benami Transaction:

The burden of proving that a particular sale is benami and the apparent purchaser is not a real owner, always rests on the person asserting it to be so.

Environmental cases:

The onus of proof lies on that person who wants to change the status quo. “It must be shown that there is no risk of harm to environmental or human health according to a ‘reasonable person’ test. The result is that if insufficient evidence is presented by him, the presumption should operate in favour of environmental protection.”