On whom does the burden of proof lie in the following cases like (1) The burden of proof as to a particular fact and (2) …

Question: On whom does the burden of proof lie in the following cases:

1. The burden of proof as to a particular fact

2. The burden of proving fact to be proved to make evidence admissible

3. The burden of proving that case of the accused comes within exceptions

4. The burden of proving fact especially within knowledge. [U.P.C.J. 2018]

5. The burden of proving the death of a person known to have been alive within thirty years

6. The burden of proving that a person is alive who has not been heard of for seven years

7. The burden of proof as to relationship in the cases of partners, landlord or tenant, principal, and agent

8. The burden of proof as to ownership.

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Answer

1. The burden of proof as to a particular fact

‘The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”

Illustration (a): A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.

Similarly, a person who signed a loan document admitted the loan and if he says that he signed a blank paper, the burden would lie upon him to prove that fact.

The present section provides the proof of someone particular fact and not the whole of the facts. In a criminal case, the whole of the facts, however numerous and complicated, which go to make the prisoner’s guilt must be proved by the prosecution. But if the prisoner wishes to prove a particular fact, e.g., at the time of the crime he was away, he must prove it.

If the prosecution wishes to prove the case not by oral and independent testimony but by the isolated fact of the prisoner’s admission he must prove it. So the burden of proof of a particular fact is upon the party who alleges the affirmative of such fact.

2. The burden of proving fact to be proved to make evidence admissible

As per section 104 of the Indian Evidence Act, “The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.”

Illustrations:

1. A wishes to prove a dying declaration by B. A must prove B’s death.
2. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

Whenever it is necessary to prove any fact, in order to render evidence of any other fact admissible, the burden of proving that fact is on the person who wants to give such evidence. The burden of proof in the sense of adducing evidence applies not only to matters which are the subject of express allegation in the pleading but also to those that relate merely to the admissibility of evidence or to the construction of the documents. Therefore a party desiring to adduce hearsay evidence or secondary evidence of a lost deed must first establish the conditions necessary to its reception.

3. The burden of proving that case of the accused comes within exceptions

According to Section 105, the burden of proof is upon the accused of showing existence, if any, of circumstances which bring the offence charged within any of the special as well as any of the general exceptions or proviso contained in I.P.C. or any law defining the offence. Further, the court shall presume the absence of such circumstances.

Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A

The fundamental principle of criminal jurisprudence is that an accused is presumed to be innocent, and the burden lies on the prosecution to prove the guilt of the accused beyond a reasonable doubt. This general burden never shifts, and it always rests on the prosecution. Sec. 105 is an important qualification of this general rule.

In Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, it observed:

“Section 105 does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution; it is sufficient if he proves his case by the standard of ‘preponderance of probabilities’ envisaged by Section 5 as a result of which he succeeds not because he proves his case to the guilt but because the probability of the version given by him throws doubt on the prosecution case and, thus, the prosecution cannot be said to have established the charge beyond a reasonable doubt.”

The onus of an accused person may well be compared with the onus of a party in a civil case. Further, if the prosecution proves beyond reasonable doubt that the accused has committed the offence, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon the evidence adduced in the case either by the prosecution or by defence a reasonable doubt is created in the mind of the court, the benefit of it should go to the accused.

4. The burden of proving fact especially within the knowledge

As per section 106 of the Indian Evidence Act,

“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

Illustration: (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden )f proving that intention is upon him.

Section 106 applies only to the parties to a suit or proceeding. Section 106 is an exception to Section 101. It is designed to meet certain exceptional cases in which it would be impossible or very difficult for the prosecution to establish facts that are especially in the knowledge of the accused.

If a person is found in possession of a stolen property immediately after the theft and he claims that there was no intention to receive stolen property, he must prove that fact, for that fact is especially within his knowledge.

Similarly, in the case of a plea of alibi, since only the person raising the plea knows that where he was at the time, the burden lies on him to prove that fact. This section also come into play in the cases of custodial or dowry death, and, negligence of carriers of goods. The principle stated in the section is an application of the principle of res ipsa loquitur.

Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond a reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts from which the reasonable inference can be drawn regarding the existence of certain other facts unless the accused by virtue of special knowledge regarding such facts offered an explanation which might drive the court to draw a different inference [Sucha Singh v. State of Punjab (2001) 4 SCC 375].

It is to note that if facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt. It would be relevant while considering the totality of the circumstantial evidence.

5. The burden of proving the death of a person known to have been alive within thirty years

As per section 107 of the Indian Evidence Act,

“When the question is whether a person 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.”

It has been laid down under Section 107 of the Evidence Act that if a person is proved to have been living within 30 years it shall be presumed that he is alive and the burden of proving he is dead lies on that person who affirms that he is dead.

6. The burden of proving that a person is alive who has not been heard of for seven years

Section 108, on the other hand, provides that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is living is shifted to the person who affirms it. Sec. 108 is an exception to the rule contained in Section 107.

There is a general presumption of continuity of things. Section 107 provides that when a person is shown to have existed within the last 30 years, the presumption is that he is still alive and if anybody alleges that he is dead, he must prove that fact. This presumption is, however, not a very strong one.

According to Section 108, if a person is not heard of for 7 years, the presumption is that he has died, and, if anybody alleges that he is still alive, he must prove that fact. Thus, seven years’ absence creates a rebuttable presumption of death.

There is a simple presumption of death and not of the time of death, for which independent evidence is needed. The onus of proving that death took place at a particular time within the period of 7 years lies on the person who claims a right for the establishment of which that fact is essential.

As observed in the case of LIC of India v. Anuradha (2004) 10 SCC 131:

The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in the issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death.

There is no presumption as to the facts and circumstances under which the person may have died. Further, the presumption would arise only on a lapse of seven years and would not apply on expiry of six years arid 364 days or any time short of seven years. The presumption can be raised only when the question is raised in court, tribunal or before an authority who is called upon to decide whether a person is alive or dead, not otherwise.

7. The burden of proof as to relationship in the cases of partners, landlord or tenant, principal, and agent

According to Section 109, where certain persons are shown to have acted as partners, or as landlord and tenant, or as principal and agent, the law presumes them to be so related and the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so.

When the existence of a person of personal relation or state of things is once established by evidence it shall be presumed that the person or relation or state of things continued to exist as before till the otherwise is proved. Here the presumption arises from the probability of the continuance of things once proved to exist.

This section declares that once it is shown that a person stands in a relationship of partners of a firm, landlord and tenant, or principal and agent, it shall be presumed that they continue in such relationship unless it is proved that they had ceased to stand so. Thus, there is a presumption against a change of status quo, namely that any existing state of things will continue as it is.

8. The burden of proof as to ownership

The burden of Proof as to Ownership is dealt with under Section 110 of the Indian Evidence Act. It states when a person is in possession of anything as owner, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. This section gives effect to the principle that possession is the prima facie evidence of a complete title. The possession contemplated is the actual physical possession. Further, Sec. 110 is not limited to immovable property and applies to moveable property as well.

In Chief Conservator of Forest v. Collector (2003) 3 SCC 472, the plaintiff claimed to be pattedar of the land in question proving long and peaceful enjoyment of the land. It was held that though there was no proof of conferment of patta and acquisition of title, a presumption of ownership arose in favour of the plaintiff and in absence of any evidence on behalf of the Government, rebutting the presumption, the claim of the plaintiff must be upheld.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X