How To Get Burden Of Proof Shifts To The Nature Of Crime?

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Burden Of Proof

Written By Hrishika Rawat

The Law of Evidence is a critical piece of legislature that supplements the Court’s proceedings. Evidence is the material that establishes a claim or an assertion and enables the Court to come to a just decision. Oral or documentary evidence should be produced before the Court to prove or disapprove respective contentions of both parties. The rule of evidence requires the respective parties to place the best evidence in hand to establish their assertion beyond a reasonable doubt. The Law of evidence is claimed to be the law of the forum or the Lex fori.

The concept of burden of proof is defined under Section 101 of the Law of Evidence Act, which states that when an individual is sure to prove the existence of a fact, the burden to provide evidence for the same lies upon him. Chapter VII of the Act deals with provisions under the burden of proof. The term “burden of proof” isn’t defined in the Act, however, it is the rudimentary principle of criminal that, that the presumption of innocence lies with the accused unless proven otherwise.

Illustration: A wants the Court to convict B of theft. Since the assertion of theft was made by A, the onus to provide evidence to support such assertion lies upon him.

Principles of Burden of Proof

The principle of Burden of proof is predicated on the concept of onus probandi (burden of proof) and factum probanda (proving a fact). While the burden of proof remains constant, the onus for an equivalent shift from one party to a different. The facts that are required to be proved are those which aren’t self-evident in nature. within the case of Jarnail Sen v. the State of Punjab (AIR 1996 SC 755)that is, if the prosecution fails to adduce the satisfactory evidence to discharge the burden, they can’t depend on the evidence adduced by the accused person in support of their defence.

Initial burden of proof

In criminal cases, the principle remains constant that the initial burden is on the prosecution to determine that the accused has committed a criminal offence. If the prosecution fails to determine beyond reasonable doubt that the accused is guilty, the accused is entitled to get a discharge. If the burden of proof is placed on the shoulders of the incorrect party, the Supreme Court states that this is able to help the whole judiciary.

Wherein, a landlord seeks eviction of the tenants on the grounds of real personal need, the onus to determine an equivalent is on him. within the case of Banwari Lal v. Road transport, where goods were lost by the carrier, the burden lies upon him to determine that there was no negligence on his part. The defence version may even be false; nevertheless, the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, goodbye because it doesn’t discharge its initial burden of proving the case beyond all reasonable doubt.

Section 102

This section attempts to locate the party, upon whom the burden of proof lays, the burden of proof lies upon the party whose stance will fail if no evidence is produced by either of the parties. The burden of proof lies on the party that affirms a fact instead of the party that denies it.

Section 103

The section imposes the responsibility of burden of proof upon the party that wishes the Court to believe and influence the existence of a fact. This principle stays unaffected by the very fact that a specific fact being asserted is negative or affirmative.

Section 104

This section states that when the admissibility of 1 fact depends on the existence and admissibility of another fact, the party which wants to prove it’ll depend on the very fact that creates the next fact admissible.

Section 105

This section refers to the exceptions provided to the accused which will function advantage of ‘the general exceptions of the Indian Penal code or of any of the special laws’. the overall principle requires the Court to presume the innocence of the accused until proven otherwise and it’s upon the prosecution to determine the guilt of the accused. Once the guilt is established, the onus then shifts to the accused who can take the defense of general exceptions in I.P.C.

In the case, Pratap v Stare of U.P. where the probability that the accused had caused death in self-defense was held that although he had not taken his defense within the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the overall exceptions are often discharged by showing a preponderance of probability. Under section 105 of the Evidence Act, the burden of proof is on the accused, who sets up the plea of self-defense, and within the absence of proof, it’s impossible for the court to presume the reality of the plea of self-defense.

Section 106

Under the said provision, a person who is claimed to remember a specific fact has the onus of proving such a fact is upon him. The section uses the term “Specially within knowledge” denoting that the possession of such knowledge also shifts the burden of proof upon the possessor.

In the case of Eshwarai v. Karnataka (Eshwarai v. State of Karnataka 1994 SCC 4), wherein a person and a lady were found within the bedroom of one that had been killed due to extensive injuries, the burden to prove the rationale of their presence was upon them. it had been assumed that since they’re present at the scene of the crime, they might especially have knowledge regarding the circumstances under which the death of the person was caused.

Burden upon affirmation

A general trend that the Indian Evidence act follows is that of shifting the burden of proof onto an individual who affirms a fact or assertion. an equivalent is visible in various provisions of the act. The rationale behind an equivalent is that if an individual asserts something, he can also prove an equivalent. Such instances are often found in sections 107 to 110. Section 107 states that if an individual who was alive within the last 30 years is claimed to be dead by another person, the person affirming an equivalent must prove the death.

Similarly, under section 108, one that hasn’t been heard from in 7 years and is therefore presumed dead, the burden of proving that the person is on whomsoever affirms it. things are analogous under section 109 which talks about establishing relationships between partners, landlords – tenants & principal – agents, and under section 110 regarding assertions of ownership. Whoever affirms it, must prove it.


The burden of proof is governed by the concept that whoever makes a claim must provide evidence or proof. This rule is subject to the burden of proof principles, which provide that the party who asserts or denies a claim bears the burden of proof. This means that whoever takes a case to court against someone else must be able to establish the fact he claims. The burden of proof on defendants in criminal prosecutions is based on the evidence.

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