UNIVERSITY OF ASIA PACIFIC, BANGLADESH (UAP)

ASSIGNMENT TOPIC:

“A CRITICAL ANALYSIS OF BURDEN OF PROOF”

SUBMITTED TO

MD. ASADUZZAMAN, ASSOCIATE PROFESSOR

DEPARTMENT OF LAW & HUMAN RIGHT, UNIVERSITY OF ASIA PACIFIC

SUBMITTED BY

ANISUR RAHMAN

ID NO: 18211003

LLB (Hons.)

DEPARTMENT OF LAW & HUMAN RIGHTS

An Assignment Report Submitted to University of Asia Pacific (UAP) in Partial Fulfillment

of the Requirement for the Award of LLB (Hons)

April 25th 2022

Introduction

The phrase Burden of Proof originated from a Latin maxim ‘semper necessitas probandi
incumbit ei qui agit’ which means “the necessity of proof always lies with the person who lays
charges”.

The Law of Evidence is a basic piece of council which supplements the Court's procedures.
Evidence is the information that supports a claim or statement and allows the Court to reach a
fair judgement. Oral or documentary evidence should be presented to the Court to establish or
disprove both parties' respective claims. The rule of evidence compels each party to present the
best evidence available to prove their claim beyond a reasonable doubt. The law of the forum, or
the Lex fori, is claimed to be the law of evidence. The Burden of Proof is put on an individual
when the person is expected to show the presence of a reality.

The Indian Evidence Act of 1872 contains the legislation governing the Burden of Proof and its
associated provisions. These laws plainly say that the person who has asserted a face or is
making any claim bears the burden of proof unless and until the law establishes an exemption.
When a person has established the existence of a fact, he or she bears the burden of evidence.

There are usually two burdens in a criminal case. The prosecution has the first duty of proving its
case against the defendant at all costs, while the defendant has the second burden of presenting
persuasive and adequate evidence to establish reasonable doubts about the prosecution's case.

In the Evidence Act, the term 'burden of proof' is not defined. The prosecution must prove the
accused's guilt, and the accused should be presumed innocent, according to a fundamental
principle of criminal law.

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What is Burden of Proof?

The Indian Evidence Act of 1872 contains no definition for the word "burden of proof." The
requirement to prove a truth is known as the Burden of Proof. The literal meaning of the word
Burden of Proof (onus probandi) is that if the party on whom the burden is put fails to provide
proof, issue must be decided against him. The obligation to demonstrate a reality in a claim is
known as the Burden of Proof. Each side must present a fact that either supports or refutes the
case.

According to Phipson, the word "burden of proof" has two separate and usually misunderstood
meanings when employed in judicial proceedings -

1. Burden of Adduction (Production) of evidence

2. Burden of Plea or Persuasion

Burden of Adduction (Production) of evidence

The term 'burden of proof' refers to a party's responsibility to lead evidence to prove his
argument in the context of evidentiary burden. This is known as the 'burden of adduction
(production) of evidence,' the 'burden of proceeding with evidence,' or simply the 'evidential
burden.' A side who carries the evidentiary burden must identify, present or introduce sufficient
evidence to assist resolve a dispute.
As Tapper pointed out, evidentiary burden is simply:
"The responsibility to prove, if called upon, that there is sufficient evidence to raise a question as
to the presence or non-existence of a fact in dispute, with appropriate consideration for the
standard of proof required of the party under such obligation"

A person who is subjected to such an obligation is not obliged to prove anything in order to
persuade decision-makers of the authenticity of his side of the story in relation to the issue for
which he is responsible. In other words, evidentiary burdens do not imply a proof requirement.
The prosecutor may be somewhat freed of this responsibility in some rare situations specified by

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law for some incidental or circumstantial items in the accusation. This happens when the
accused, rather than the prosecutor, is in a better position to offer evidence that is either within
his own knowledge or reach. This is more properly referred to as reducing the prosecutor's
evidentiary burden.

Burden of Plea or Persuasion

The requirement of a party to persuade the presence or non-existence of a disputed issue of fact
to the satisfaction of judges with the requisite amount and quality of evidence and/or other
probative methods is known as the Burden of Plea or Persuasion.
It means, according to Tapper:
"A party's responsibility to fulfill the requirement that a fact in dispute be proved (or refuted) by
a preponderance of the evidence (in civil proceedings) or beyond a reasonable doubt (in criminal
cases)”. This is the actual Burden of Proof, which decides which side in a process bears the
burden of proving or disproving a particular fact(s) at dispute, or risk losing the case entirely, as
the case may be. This burden decides which party is required to present evidence of a certain fact
and persuade the court of that fact; it is also this burden that determines who would lose if the
court is not convinced that the fact has been shown. This Burden of Proof is also known as the
legal (persuasive) burden, the probative burden, or the risk of non-persuasion, and it determines
who loses on a factual point or the entire case.

Principles of Burden of Proof

 Onus Probandi

It means Burden of Proof. Generally, a party who claims affirmative has to prove it.

 Factum Probans

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 It is proving the fact
Difference between Burden of proof and Onus of Proof

Buren of Proof lies on the person who has to prove a fact and it never transfers, but onus
(burden) of proof transfer. It is transferring from shoulder to shoulder. Such a transferring is
continuous process in the evaluation of evidence.

The burden of proof is always on the individual who has to prove a fact, although the onus
(burden) of proof fluctuates. It's swaying from one shoulder to the next. In the appraisal of
evidence, such shifting is a constant process.
The Burden of Proof is discussed in the Indian Evidence Act, 1872, from Section 101 to Section
114, and Sections 101, 102, and 103 establish the standard laws that regulate the Burden of
Proof.

SECTIONS 101

According to section 101 of the Evidence Act

"Whoever wants a court to rule on a legal right or responsibility based on the existence of facts
that he alleges must establish that those facts exist."

Facts can be classified into two groups according to the Burden of Proof:

1) Those who affirm a fact and

2) Those who deny it.

According to section 101 of the Indian Evidence Act, 1972, the party who alleges the positive of
an issue in order for the court to render a judgment on those facts bears the burden of proof to
show those facts; proving the affirmative is simpler than proving the negative. The affirmative in

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question should be substantive rather than formal or grammatical.

The Burden of Proof is placed on a person when he or she is required to show the existence of a
fact.

Examples:

 If a person A wants the court to issue a judgment against a person B for committing a
crime, A must establish that B committed the offense.

 A has asked the court to grant him ownership of a piece of property that is now owned by
B, based on the facts he stated, which B has contested. In this situation, A must
demonstrate that the facts are correct.

The Supreme Court held in Jarnail v. State of Punjab1 that the prosecution bears the burden of
proving that the accused committed the crime beyond a reasonable doubt, and that if it fails to
establish concrete evidence to meet that burden, it cannot rely on the evidence presented by the
accused on defense in the case. To convict the defendant, the prosecution does not rely on the
accused's evidence.
In the case of State of Maharashtra v. Vasudeo Ramchandra Kaidalwar2, the Supreme Court said
that the term "burden of proof" has two meanings: legal burden and evidentiary burden. The
accused is presumed innocent until proven guilty in a criminal trial, and the prosecution bears the
burden of proof. The legal burden is to establish everything necessary against the accused, and it
never moves. Although the law may occasionally compel the accused to establish a fact in
dispute, it is not as onerous as the prosecution's burden.

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SECTION 102

Section 102 of the Code of Federal Regulations states that

"In a litigation or procedure, the burden of proof is on the party who would lose if no evidence
was presented on either side."

In other words, if no evidence is presented before the court from either party, the Burden of
Proof falls on the person who is most likely to fail in a matter filed before the court. This section
aims to identify the side who bears the burden of proof. It states that if neither side provides
evidence, the burden of proof is on the party who fails. As a result, this part concentrates on the
evidentiary burden, also known as the "onus of proof," whereas section 101 deals with the legal
burden, also known as the "burden of proof," as it relates to procedural law.

Examples:

 If A pursues B to court over a family conflict over land that B owns, and A claims that it
was bequeathed to A in a will made by C, B's father, and neither A nor B offers any
proof, B will keep the property.

 In a case where A sues B for money owed to him as a result of a bond, all parties have
consented to the bond's execution, but B claims that it was negotiated through fraud,
which A denies. If neither party can produce proof, the A would prevail since the bond
had been agreed to, but the case of fraud could not be shown. In that situation, B has the
burden of evidence.

In the scenario above, there was no legal obligation to establish that the bond was real; yet,

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because it was obtained by fraud, B, who stated it, had an evidentiary burden (or onus).

The defendant had requested a limitation term in the instance of Triro v. Dev Raj3 because to the
delay in drafting the claim. The plaintiff's position was to learn the cause for the delay, and the
plaintiff had the duty of establishing that the lawsuit was filed within the time limit.

SECTION 103 (Burden of Proof as to particular fact)

Section 103 of the statute states that

"Unless any legislation provides that the burden of proof should be on any particular individual,
the burden of proof as to any particular fact lies on the person who asks the Court to believe in its
existence."

This clause indicates that the burden of evidence for any given truth rests with the individual
who wishes the court to believe in its existence, unless the law mandates someone else to show
it. This provision essentially states that anyone who asserts something in court must prove it.

Example

 If A sues B for theft and requests that the court accept B’s admission to C that he
committed the theft. A must prove that fact, and B must prove it if B rejects it.

The concept of section 103 is that the burden of proof is on the party who wants the court to
believe and act on the existence of a fact. If a party wants the court to think that his opponent has
conceded a fact, he must show that fact.

This section's premise emphasizes that if a party wants the court to accept and act on the basis of
the existence of a fact, he must show it. The 'rule of convenience of the burden of proof' is found

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in sections 104, 113, 113a, and 114a of the United States Code.

SECTION 104 (Burden of Proving the fact to be proved to make evidence admissible)

The person who intends to present such evidence bears the burden of demonstrating any truth
that must be shown in order for them to give evidence of any other fact.

Example

 If A wants to verify B's death pronouncement, A must first establish B's death. B plans to
use secondary evidence to establish the contents of the missing document.

A must show that the document is missing. This section explains how to prove a fact so that
evidence can be allowed based on the fact that the party proves, which must be in accordance
with the admissibility.

Section 104 lays forth the requirements for proving a fact on which evidence becomes admissible
where admission is contingent on the party wishing to show the fact on which admissibility is
contingent proving the burden of proof of another fact.

SECTION 105 (Burden of proving that case of accused comes within exceptions)

Section 105 of the Indian Penal Code (45 of 1860) states that the burden of proving the existence
of circumstances bringing the case within any of the General Exceptions, or any special
exception or proviso contained in any other part of the same Code, or in any law defining the

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offence, is on the accused, and the court shall presume the absence of such circumstances.

Example

 A, blamed for homicide, alleges that, by reason of unsoundness of mind, he did not
know the nature of the act. The So, burden of proof is on A.

 A, blamed for homicide, alleges that by grave and sudden provocation, he was
deprived of the power of self-control. So, the burden of proof is on A.

As a result, this provision establishes that the accused has the burden of proof if the allegations in
each case are within the admissible exception.

Only criminal cases are covered in this section. Both civil and criminal cases were covered in the
preceding sections. If an accused has been found guilty of an offence and asserts any of the
general exceptions listed in the Indian Penal Code, 1860, or any other defense given in any
legislation under which the offence committed falls, he must prove it. The court is required by
general principles to presume the accused's innocence until proven guilty, and it is up to the
prosecution to show the accused's guilt. Once guilt has been proven, the burden of proof shifts to
the accused, who might invoke the IPC's general exception defense.

A navy officer was found guilty of killing his wife's paramour in the landmark case of KM
Nanavati v. State of Maharashtra4. The accused was unable to show that the bullets were fired
unintentionally or in self-defense.

The Supreme Court decided in Dayabhai v. State of Gujarat5 that it is the prosecution's
responsibility to prove beyond a reasonable doubt that the accused committed the crime. If the
accused claims insanity, he must show it, and his burden of proof is lower than the prosecution's.
If the accused's evidence does not raise an absolute doubt, but rather a reasonable one, about the
elements of the crime, he may be acquitted.

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SECTION 106 (Burden of proving fact specially within Knowledge)

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

Example

A person who conducts an act with a purpose that is distinct from the conditions that the act
implies bears the burden of proof. In the event that A is accused with boarding a train without a
ticket, A bears the burden of proof.

It asserts that if a truth is particularly within a person's knowledge, he bears the burden of proof.
The Latin maxim 'Res ipsa loquitor' serves as the foundation for this section.
In the case of Eshwaraiah v. State of Karnataka6, it was decided that if a man and woman
were discovered hiding beneath the bed in the bedroom of a person who was lying dead of
injuries, they had the burden of proof to explain their presence as well as the circumstances of
the deceased's death.

SECTION 107 (Burden of proving death of person known to have been alive within thirty
years)

Section 107 of the Code of Federal Regulations states that,

"At the point when the inquiry is whether a person is alive or dead, and it is exhibited that he was

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alive in the span of thirty years, the individual who certifies it bears its obligation is dead to show
that he."

This provision establishes that a man is presumed to be alive for up to thirty years after he was
last seen or heard of. If the question at hand is whether a guy is alive or dead, and the one
claiming it bears the burden of proof, this will be inferred.

SECTION 108 (Burden of proving that person alive who has not been heard of seven years)

According to section 108,

"Provided, however, that where the question is whether a man is living or dead, and it is proven
that he has not been heard of for seven years by people who would naturally have known of him
if he were alive, the burden of showing that he is alive transferred to the person who confirms it."

This provision specifies that if a person has gone missing for seven years and has not been heard
from by individuals who would naturally know about him if he were living, he is deemed dead.
When the question of whether he is alive or dead comes up in court, this presumption applies. As
a result, if the court accepts the presumption, the party claiming the person's survival must prove
it. It's just a basic death assumption, not a time of death.

A man married in 1909 in the case of Chard v. Chard7. He last heard from his wife in 1917,
remarried in 1933, and then filed a petition for a nullity declaration for the 1933 marriage. The
court determined that the assumption of her death was not established because no proof of her
health or those who would have naturally heard of her was provided, and therefore the marriage
of 1933 was declared null and void.

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SECTION 109 (burden of proof as to relationship in the case of partner, landlord and
tenant, principal and agent)

According to section 109 of the act,

"At the point when the inquiry is whether people are accomplices, property manager and
inhabitant, or head and specialist, and it has been shown that they have been going about thusly,
the weight of demonstrating that they don't stand, or have stopped to remain to one another in
those connections separately, is on the individual who confirms it"

When it's unclear if two people are partners, landlords and tenants, or principals and agents, and
it's proven that they've been acting as such, the court assumes they're linked. If a person disputes
the relationship or states that it has ended, he bears the burden of evidence to show that they
were never connected or that they are no longer related.

Subsequently, the court assumes the current the state of affairs or in the progression of things.

SECTION 110 (Burden of proof as to ownership)

According to section 110 of the act,

"The burden of demonstrating that any person is not the owner of anything of which he is shown
to be in possession is on the person who claims that he is not the owner when the inquiry is
whether any person is the owner of anything of which he is shown to be in possession."

The clause merely indicates that the burden of proof is on the person declaring that he is not the
owner of something of which he is shown to be in possession if the inquiry is whether he is the

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owner of something of which he is shown to be in possession.

SECTION 111 (Proof of good faith in transaction where one party is in relation of active
confidence)

According to section 111 of the Act,

"Where there is a doubt as to the good faith of a transaction between parties, one of whom stands
in a position of active trust to the other, the party in a position of active confidence bears the
burden of establishing the transaction's good faith."

This provision states that if a person has the active confidence of another, he must behave in
good faith toward that person, and he has the burden of proving that he did so.

Example

 A lawsuit initiated by a client calls into question the good faith of a client's sale to an
attorney. The attorney bears the burden of showing the transaction's good faith.
 In a suit bright by the son, the good faith of a sale by a son who has reached the age of
majority to a parent is called into doubt. The parent bears the burden of showing the
transaction's good faith.

SECTION 111A (Amendment 1984)-Presumption as to Burden of Proof

This clause informs the court that if a person has been convicted of a specific crime in the past,
he is accountable for disrupting public order and pece in a place designated as a disturbed area.
Aside from the crimes listed, this covers criminal conspiracy, attempt to commit, and abatement.
Sections 121, 121A, 122, and 123 of the Indian Penal Code are among them.

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SECTION 112 (Birth during marriage, conclusive proof of legitimacy)

This section is about a child's legal status. The proverb 'pater est quem numtioe demonstrant'
means "the father is he, whom the weddings signify." Section 112 of the Evidence Act is
founded on this maxim. The following are the main points of this section:

 The kid should have been born when the mother was still single or within 20 days of a
terminated marriage.

 The parties to the marriage should have been able to communicate with one another.

Effective access between the mother and the father is required for the child's legitimacy to be
presumed. When the kid was conceived, both sides to the marriage had access to each other.

"However, the existence and non-existence of possibility for marital intercourse cannot be the
same." Non-access can be proven by direct or indirect evidence, but the proof of non-access must
be clear and adequate, since the law favors the assumption of legitimacy.

The Delhi High Court declared in Teeku Dutta v. State8 that no party may be subjected to a
scientific test (such as DNA) without his agreement just because the other party requested it.
This would be a violation of the other party's right to privacy. Such a directive can only be
granted in exceptional circumstances.

SECTION 113 (Proof of cessation of territory)

A government notice of the cessation of territory to any other state, it states, is solid

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confirmation of the act. The cessation should have occurred prior to the passage of the
Government of India Act, 1935.

SECTION 113A (Presumption as to abatement of suicide by a married women)

Presumptions are obligatory because they are reasonable and aid in the direction of the case and
the avoidance of needless problems. They are divided into two categories: rebuttable and
irrefutable. Evidence can overturn rebuttable presumptions, but irrefutable ones are definitive.
This provision establishes a presumption of a married woman's complicity in suicide. The
following conditions must be satisfied in order to elicit the presumption:

 The question before the court should be whether a married woman committed suicide as a
result of her husband's or relatives' complicity.

 The suicide must have occurred within 7 years of the marriage date.

 Proof that her spouse or his relatives were harsh to her.

If all three elements are satisfied, the court will assume that the husband or his family helped her
commit suicide, and it will be up to the husband or relatives to establish that she committed
herself of her own volition.

SECTION 113B (Presumption as to dowry death)

The dowry death is defined under Section 304B of the Indian Penal Code, and this section deals
with dowry death presumptions. If the requirements of section 304B of the Indian Penal Code are
fulfilled, the burden of proof shifts on the accused to refute the inference. In section 113B of the
evidence law, the word "soon before" indicates that there must be a proximate relationship

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between acts of cruelty or harassment and death. There is no set formula for establishing a suc ha
connection, and the court must analyze the facts of each case on its own.

SECTION 114 (Court may presume existence of certain facts)

This section indicates that the court may infer the presence of certain facts relating to the natural
flow of events, human conduct, public and private business, as long as the circumstances of the
case are connected to those facts.

Example

• A suspicion of guilt has been established based on unexplained possession of recently stolen
items. A gold ring, handkerchief, and money bills were retrieved at the request of the accused in
the case of Mohanlal v. Ajit Singh9, a case of murder and robbery, and they all carried his
fingerprints. It was not only a proof of robbery, but also presumptive evidence of the allegation
of murder, according to the court.

• In the case of Chito Mahtoo v. Lila Mahtoo10, it was decided that if a property is
demonstrated to be ancestral, it is considered to be so until it is shown otherwise. Unless
otherwise stated, it will presume that everything will continue to be the same.

SECTION 114A (Presumption as to absence of consent in certain persecution of rape)

When sexual intercourse is proven against the accused in a rape case under section 376 of the
Indian criminal code, the court will honor the woman's allegations if she alleges it was non-
consensual sex.

The court decided in Nawab Khan v. State11 that if the individual having the sexual intercourse

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notifies the court that it was non-consensual sex, the court will presume there was no consent. If
the accused asserts that there was consent, the accused bears the burden of evidence.
CONCLUSION

The burden of proof is governed by the concept that whomever asserts a claim must provide
evidence or proof. This rule is subject to the burden of proof principles, which provide that the
party who claims or rejects a claim has the burden of proof. This means that whomever takes a
lawsuit to court against someone else must be able to establish the fact he alleges. The burden of
proof on defendants in criminal proceedings is based on the evidence presented to the court,
which establishes that he committed the offense as alleged. An accused can only be deemed
guilty based on the facts presented to the court by the plaintiff in line with the case's burden of
proof.

REFERENCES

https://open.lib.umn.edu/criminallaw/chapter/2-4-the-burden-of-proof/
https://www.legalserviceindia.com/legal/article-7916-the-concept-of-burden-of-proof.html
https://www.lawinsider.in/columns/burden-of-proof
https://www.mondaq.com/india/court-procedure/618426/burden-of-proof-under-the-
indian-evidence-act-1872
www.google.com

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