When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. For Example: A alleges that B has murdered C, then the burden of proof lies on A to prove his allegations. Generally, in civil cases, the burden of proof lies on plaintiff and in criminal cases it lies on prosecution.
Chapter VII of the Indian Evidence Act is of the Burden of Proof. It contains Section 101 to 114A. The headings of section are as follows:
| Section | Particulars |
| Section 101 | Burden of Proof |
| Section 102 | On whom burden of proof lies |
| Section 103 | Burden of proof as to particular fact |
| Section 104 | Burden of proving fact to be proved to make evidence admissible |
| Section 105 | Burden of proving that case of accused comes within exceptions |
| Section 106 | Burden of proving fact specially within knowledge |
| Section 107 | Burden of proving death of person known to have been alive within thirty years |
| Section 108 | Burden of proving that person is alive who has not been heard of for seven years |
| Section 109 | Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent |
| Section 110 | Burden of proof as to ownership |
| Section 111 | Proof of good faith in transactions where one party is in relation of active confidence |
| Section 111A | Presumption as to certain offences |
| Section 112 | Birth during marriage, conclusive proof of legitimacy |
| Section 113 | Proof of cession of territory |
| Section 113A | Presumption as to abatement of suicide by a married women |
| Section 113B | Presumption as to dowry death |
| Section 114 | Court may presume existence of certain facts |
| Section 114A | Presumption as to absence of consent in certain prosecutions for rape |
The expression burden of proof has two distinct meanings: 1) the legal burden i.e., the burden of establishing case and 2) the evidential burden, i.e., the burden of leading evidence.
The Legal Burden or Burden Proper:
It is the burden of proof of a matter of law and pleading, the burden and also referred as establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is the burden of party to prove its case completely to the satisfaction of the Court. It is fixed, at the beginning of the trial, by the statements of the pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever. As a rule, the legal burden lies on the party who has set in motion the legal machinery by filing a case. This rule is embodied in Section 101.
The Evidential Burden or Onus of Proof:
It is the burden of proof as matter of adducing evidence. The burden of proof in this sense is always unstable, and may shift constantly throughout the trial. This aspect of the burden of proof is contained in Section 102. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side.
In Narain v. Gopal, AIR 1960 SC 100 case, the Court observed that the expression burden of proof really means two different things. It means (1) sometimes that the party required to prove an allegation before judgment is given in his favour and (2) it also means that on a contested issue one of the two contending parties has to introduce evidence.
In criminal cases burden of establishing the charge against the accused lies on the prosecution. Here it is not the accused who has to prove his innocence because he is presumed to be innocent till his guilt is proved. That is why prosecution has to prove his case and section 101 comes into operation. In civil cases burden of proof is on the party who asserts. But the standard of proof required in civil cases is not that the plaintiff must prove a fact beyond any shadow of doubt. In ascertaining which party is asserting affirmative, the court looks to the substance and not the language used.
Section 101 defines burden of proof. This section says on whom burden of proof lies. While as section 102 puts it in negative terms. The burden of proof lies on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Section 101 has to be read along with Section 102 of Evidence Act.
Section 101 IEA:
Burden of Proof:
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations:
(a) ‘A’ desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B 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 he asserts, and which B denies, to be true. A must prove the existence of those facts.
Thus, burden of proof means in the sense of proving the case and for this purpose, duty to prove all facts necessary for taking the judgement of court i.e., the sense of proving a case and provide whoever wishes the court to give judgement in his favour for any legal right or liability dependent on existence of some facts, law lies onus on him to prove that those facts exist.
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. Thus, the burden of proof in the sense of proving case as contemplated in Section 101 is constant one and never shifts.
In Ramjee Rai v. State of Bihar, (2006) 13 SCC 229 case, the Court said that the word ‘burden’ in the phrase burden of proof should not be taken as weight in physical sense because the Courts do not go by quantum or volume of evidence. The Courts make a qualitative and not quantitative appreciation of evidence.
In Raigarh Jute Mills Ltd. v. Eastern Railway, AIR 1958 SC 525 case, the Court held that Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts.
In State of Rajasthan v. Bhaananda Sharma, 1972 Cri.L.J case, the Court held that it is well established principle that in criminal case the accused must be presumed to be innocent until the prosecution establishes the charge against him beyond reasonable doubt. There is no burden on the accused to prove his innocence.
In Jarnail Singh v. State of Punjab, AIR 1996 SC 755 case, the Supreme Court observed that in a criminal case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon prosecution, and therefore if it fails to adduce the satisfactory evidence to discharge that burden. It cannot fall back upon evidence adduced by the accused person in support of their defence to rest its case solely thereupon.
In Subhra Mukherjee v. Bharat Coking Coal Ltd., AIR 2000 SC 1203 case, where issue was whether the document in question was genuine, sham or bogus. The Court held that the party who alleged it to be bogus had to prove nothing till the party relying upon document established its genuineness. This burden always keeps on shifting throughout the trial. Thus, though the form of issue may cast the burden on the defendant, it could not affect the burden of proof on the pleadings which is on the plaintiff.
Difference Between Burden of Proof and Onus of Proof:
| Burden of Proof | Onus of Proof |
| It is the burden of party to prove its case completely to the satisfaction of the Court. | It is the burden of proof as matter of adducing evidence. |
| It relates to entire case | It relates to specific fact that a party alleges. |
| It lies upon the person who has to prove a fact | It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. |
| It remains constant which never shifts | onus of proof shifts from one to another. |
| This concept is embodied in Section 101 of IEA | This concept is embodied in Section 102 of IEA |
In Addagada Ragavamma v. Addagada Chenchaamma, AIR 1964 SC 136 case, the Supreme Court held that there is an essential distinction between the burden of proof and onus of proof, the first one is the burden to prove the main contention of the party requesting the action of the court, while the second one is the burden to produce actual evidence.
Section 102 IEA:
On Whom Burden of Proof Lies:
In a suit or proceeding it lies on that person who would fail if no evidence at all were given on either side.
Illustrations:
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
According to this Section, burden of proof lies on the party whose case would fail if no evidence were given on either side. Actually, section tries to locate on whom burden of proof lies. Section 101 of Act provide regarding Burden of proof in the sense of proving the case i.e., onus probandi and Section 102 provide burden of proof in the sense of adducing evidence.
The burden of adducing evidence keeps on shifting from one to another party. It never shifts. It remains on plaintiff in civil proceeding and on prosecution in criminal proceeding.
In K. Kusuma Kumari v. Gandhi Surya Bhagwan, AIR 1982 AP 63 case, the Court held that in cases of insanity or unsoundness of mind, burden of proving that fact lies on the person who wants to rely on it. The law presumes sanity.
In C.P. Sreekumar M.S. (Ortho) v S. Ramanujam, 1 May, 2009 the Apex Court held that onus of proving medical negligence lies on the complainant. Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged to provide facta probanda as well as facta probantia.