The Concept of 'Burden of Proof'


February 17, 2022
The Concept of 'Burden of Proof'
Section 106 of the Indian Evidence Act Section 106 advances the concept of a fair trial by making it easier to establish all conceivable facts and removing the burden of proving anything that is impossible and in the accused's favour. Additionally, it allows the accused to challenge the presumption of facts drawn from the sequence of events. However, it is observed that the prosecution exploits this clause and attempts to evade his responsibilities to establish the legal burden.
Listen to this article

Table of Contents

The Concept of 'Burden of Proof'

 

The Indian Evidence Act does not define the term "burden of proof." However, in simple terms, the burden of proof refers to the legal requirement or responsibility of the parties to establish the facts that will assist the court in reaching a decision in their favour. Therefore, the duty to prove a fact in a lawsuit is known as the Burden of Proof. The requirements under the burden of proof are covered in Chapter VII of the Indian Evidence Act.

Under the Indian Evidence Act, 1872, sections 101 to 103 deal with the burden of proof in general, whereas sections 104 to 106 deal with the situation where the burden of proof is placed on a specific individual. The concepts of "Onus Probandi" and "Factum Probans" include the underlying principles of the burden of proof. Onus Probandi is a general rule that requires a person asserting the positive to prove it. A person who maintains an affirmative stance has the onus probandi. The onus probandi is on the party seeking to strengthen his case with a specific fact that he is said to be aware of.

 

Factum Probans and Factum Probandum

Order 6, Rule 2 of the Civil Procedure Code, 1908,  states that the pleading shall only contain important facts that must be shown in a concise form Evidence is a relative term that refers to a connection between two facts: the fact in dispute (factum probandum), or statement to be proven, and the evidential fact (factum probans), or material corroborating the proposition. The former is inherently hypothetical; the latter is advanced as fact in order to persuade the court that the former is likewise true.

According to the fundamental premise of criminal law, the accused should be deemed innocent unless proven guilty beyond a reasonable doubt. The prosecution has the first burden of proving that the accused has committed a crime in a criminal proceeding.

In the case of the State of Rajasthan vs Sher Singh, 1994, it was held that it was unlawful to examine defence evidence before prosecution evidence in criminal proceedings.

In criminal trials, the prosecution bears the burden of proof. The prosecution must show beyond a reasonable doubt that the defendant is guilty until the prosecution proves otherwise. The court shall assume that the accused is innocent. It was held in the case of Md. Allmuddin v. State of Assam, 1992, that the defence version may even be false, nevertheless, the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving the case beyond all reasonable doubt.

In Jarnail Singh v. the State of Punjab, AIR 1996, it was established that if the prosecution fails to produce sufficient evidence to meet their burden, they cannot rely on the evidence presented by the accused in support of their defence.

In criminal trials, the prosecution bears the duty of establishing the defendant's guilt, and they must do it beyond a reasonable doubt. The plaintiff has the burden of proving his case by a majority of the evidence in civil cases. If the prosecution fails to prove the accused's guilt beyond a reasonable doubt, the accused is entitled to an acquittal. This was determined in the case of Ouseph v. State of Kerela, which was decided in 2004.

The burden of proof is defined under Section 101 of the Indian Evidence Act:

Anyone who wants a court to rule on a legal right or responsibility based on facts he claims must first show that such facts exist. The second Section of the statute specifies that when a person is required to show the existence of a fact, that person shall also bear the burden of proof.

As a result, a person seeking a favourable decision from the court must provide evidence in support of his case, according to this clause. The usual rule is that the party that asserts a truth bears the burden of proof, not the side that denies it.

Section 102 of the Indian Evidence Act:

 Who bears the burden of proof — In a suit or procedure, the person who would fail if no evidence was presented on either side has the burden of proof.

Section 103 of the Indian Evidence Act states:

 "The burden of proof as to any specific fact is with the person who asks the court to believe in its existence unless any law provides that the burden of proof rests with any particular individual."

Section 104 of the Indian Evidence Act states that the burden of proof is on the person giving the evidence to prove the facts that must be shown in order for the evidence to be admissible.

When it comes to establishing facts in order to make evidence of another fact acceptable, the burden of proof falls on the individual who wishes to offer the evidence.

Section 105 of the Indian Evidence Act

When an accused is charged with criminal conduct, the burden of proof is placed on the accused to establish the circumstances that gave rise to the accusation under any general exceptions provided by the Indian Penal Code or any other particular legislation. Under this Section, the prosecution's duty is limited to establishing the accused's guilt; once that is established, the burden transfers to the accused, who has the advantage of relying on general exceptions to the IPC or Criminal Procedure Code. This is one of the unique traits that only applies in criminal proceedings. As a result, according to Section 105 of the Act, the onus of evidence is on the accused to know about every incident that has occurred. Additionally, this is referred to as the reverse onus clause.

Section 106 of the Indian Evidence Act

Section 106 advances the concept of a fair trial by making it easier to establish all conceivable facts and removing the burden of proving anything that is impossible and in the accused's favour. Additionally, it allows the accused to challenge the presumption of facts drawn from the sequence of events. However, it is observed that the prosecution exploits this clause and attempts to evade his responsibilities to establish the legal burden.

 

Concept of Presumptions under the burden of proof

Presumptions are legal conclusions made by the court about the presence of particular facts. Presumptions are an exception to the usual rule that the party that asserts the existence of particular facts has the first burden of proof, but they eliminate this necessity. When certain facts are believed to exist, the party in whose favour they are presumed to exist is relieved of the burden of proof in that regard.

Documentary Evidence is subject to several presumptions. Presumptions may be divided into three types: factual presumptions, legal presumptions, and mixed presumptions. When a certified copy of an original document is presented to the court, the law presumes that the copy is a genuine copy of the original evidence, according to Section 79 of the Act. The court shall infer that a power of attorney issued before the court is by a real authorised person, according to Section 85 of the Act.

The presumption of innocence is a legal notion stating that everyone is presumed innocent unless proved guilty. Justice Thomas articulated the need of changing the perspective on this idea in the case of State of West Bengal v. Mohd. Omar (2002). According to him, the traditional approach of constantly placing the burden of evidence on the prosecution benefits only the accused of horrific crimes and creates fatalities for society. When a prosecutor successfully establishes specific facts of the case, the court must infer their existence and rely on such circumstances. In other words, after the court is satisfied with the prosecution's case, the burden of proof shifts to the accused since only the accused is aware of every occurrence committed.

 

Conclusion

As can be seen, the Evidence Act of 1872 is a well-codified statute that deals extensively with the issue of the burden of proof. The current innovations in electronic evidence and burden of proof, on the other hand, require additional clarity, particularly when it comes to judicial interpretation.

Many cases in our criminal justice system have not resulted in a successful conviction. The conventional approach of courts on the notion of presumption of innocence and the obligation to show mental aspect, according to experts, is to blame. As a result, it was determined that trends that violate any regulation must be reversed. However, it is critical to guarantee that these developments do not jeopardise the Judges' integrity and reputation as unbiased officials.

Written By:
Kishan Dutt Kalaskar

Recommended Free Legal Advices
question markProperty Title Transfer 3 Response(s)
Dear Client, In India, joint ownership of property is typically categorised as "Tenancy in Common," which means that each co-owner has a distinct share in the property, and their share can be inherited or sold as they desire. In a "Tenancy in Common," each co-owner can specify their share of the property, and their shares will not automatically pass to the surviving co-owners upon death. In India, joint tenancy is possible, but it is not as common as tenancy in common. Joint tenancy can be established by specific agreements and clear language in property documents. It is crucial to have clear and unambiguous documentation when creating a joint tenancy with the right of survivorship. You may need legal assistance to draft such an agreement. Your lawyer can help you draft a deed that clearly outlines your intent and the terms of your co-ownership.
question markApartment maintainance charges 2 Response(s)
Dear Sir/Madam, Bombay high court judgment, which held that maintenance charges shall have to be equal amongst all members irrespect . of their carpet area or number of bedrooms. The same shall not be levied on the basis of per sqft. Bombay High Court Sunanda Janardan Rangnekar vs Rahul Apartment No. 11 ... on 10 August, 2005 Equivalent citations: 2006 (1) MhLj 734 Author: D Karnik Bench: D Karnik JUDGMENT D.G. Karnik, J. 1. By this petition, the petitioner challenges the judgment and order passed by the Divisional Joint Registrar, Bombay on 7th December, 2004 dismissing the revision. 2. The respondent No. 1 is a co-operative housing society (for short 'the society') having 29 members. There are 28 residential flats which are allotted to 28 members and one shop is allotted to the petitioner. The area of the flats varies between 479 sq.ft and 657 sq.ft. The area of the shop premises in occupation of the petitioner is about 160 sq.ft. i.e. to say that the petitioner's shop is smaller than the smallest flat in the building of the respondent No. 1 society. It appears that the society recovers from the members property tax, payable to the municipal authorities at the rate of Rs. 30.81 per sq.ft per annum of the area of the flat/shop. In addition thereto, the Society also levies and recovers from the members amount by way of society charges/maintenance at a flat rate of Rs. 8,000/- per annum (Rs. 2,000/- per quarter per flat). The society sought to recover from the petitioner society charges/maintenance at the rate of Rs. 32,000/-per annum (Rs. 8,000/- per quarter) for the shop occupied by him. According to the petitioner, this was illegal inasmuch as while only Rs. 8,000/-per annum were charged to the members occupying the residential flats Rs. 32,000/- per annum were sought to be recovered from her by way of society charges/maintenance which was highly discriminatory. As the petitioner's grievance was not addressed to she stopped making payment to the society. The society thereafter made an application for recovery of arrears of the dues with interest from the petitioner to the Asstt. Registrar of Co-operative Societies under Section 101 of the Maharashtra Co-operative Societies Act, 1961(for short 'the Act'). The petitioner opposed the said application contending that the payment was withheld on account of excessive demand. She also contended that was liable to pay to interest. On 23rd December 2002, the Asstt. Registrar issued a certificate of recovery in favour of the respondent No. 1 society in the amount claimed by it. Aggrieved petitioner challenged the recovery certificate by filing a revision before the Divisional Joint Registrar. By an order dated 7th December, 2004, the Divisional Joint Registrar dismissed the revision application. That order is impugned in this petition. 3. Learned counsel for the petitioner submits that while the society was issuing bills by way of society charges/maintenance charges at the rate of Rs. 8,000/- p.a. (Rs. 2,000/- per quarter) to each of the flat holder members, it was wrongly issuing the bills in the sum of Rs. 32,000/- p.a. (Rs. 8,000/- per quarter) to the petitioner in respect of the shop premises. She submits that no additional service whatsoever was provided by the respondent No. 1 society to the petitioner or to the shop allotted to the petitioner nor was any additional amount spent for the maintenance of the shop and therefore the society was not entitled to treat the petitioner differently from other members. Learned counsel for the society submits that the sum of Rs. 32,000/- per annum consisted of two parts viz. Rs. 16,000/- for society charges/maintenance charges and a sum of Rs. 16,000/- as non-occupation charges. As regards the charges for society charges/maintenance charges, he submits that a resolution has been passed by the general body of the society in its meeting dated 1st July, 2001 authorising the society to levy society charges/maintenance charges in respect of the commercial premises at twice the rate of charges for the residential premises and therefore the society was entitled to recover Rs. 16,000/- per annum instead of Rs. 8,000/- p.a. in respect of shop premises occupied by the petitioner. As regards the non-occupation charges of Rs. 16,000/- the counsel submits that the petitioner was not personally occupying the shop but had let it out and therefore the society was entitled to non-occupation charges under the bye laws of the society. 4. In view of the rival submissions of the parties, two points arise for my consideration. i)Whether under the Act, Rules or bye-laws the society is entitled to recover society charges/maintenance for commercial premises at twice the rate charged for the residential premises? ii) Whether the society is entitled in law to recover non-occupation charges as claimed by it? Regarding Point No. 1. 5. Learned counsel for the petitioner submits that total number of members in the society are 29 out of which 28 persons occupy the residential premises and only the petitioner occupies one non residential unit. Therefore the residential flat holders have a brute majority in the society and petitioner's lone voice is not heard. Taking advantage of the brute majority the flat holders want to subsidise the charges for the maintenance of their flats by recovering higher maintenance charges from her - the holder of a commercial premises. The society has no authority in law to treat the members differently and levy the charges for the commercial premises at a rate twice the rate of the residential premises. Though the area of the shop is much smaller than the area of the smallest residential flat, the petitioner never objected for paying the society charges/maintenance at the same rate as that of the residential flat-holders. There should be equality in sharing of the burden of expenses for maintenance and common expenses which are recovered by the society as service charges or maintenance charges. They should be recovered equitably and equally from all the members. In support of these submissions learned counsel for the petitioner relies upon the decision of this Court in Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3) All. M.R. 570. 6. In case of Venus Co-operative Housing Society the flats of different sizes, 284 small flats with two bedrooms and 39 large flats with four bedrooms. The society passed a resolution levying the different maintenance charges as per the area of the flats and issued a circular to that effect to members. Disputants who were the holders of the larger flats challenged the circular as also the resolution by filing a dispute under Section 91 of the Act before a co-operative Court. The co-operative Court declared the resolution of the society to be illegal and not binding on the disputants. The decision of the co-operative Court was confirmed by the appellate tribunal. The order was impugned by the society by way of a Writ Petition. This Court held that the resolution of the society levying differential charges on the basis of the area of the flats was arbitrary, unreasonable, without any rational and without any source of power. It held that services of the society were enjoyed by all the members equally and there was no reason for the society to make the large flat holders pay more on the basis of the area of the flats. It held that though the supremacy of the general body cannot be doubted, even the supreme general body had to pass resolutions considering all facts and circumstances of the matter. The general body cannot pass arbitrary and unreasonable resolutions merely because it is supreme and it has a large majority in favour of any issue on the agenda. 7. In the present case the society is recovering differential amounts by way of a property tax on the basis of the area of the flats at the rate of 30.81 per sq. ft. per annum of the area. That has rightly not been challenged by the petitioner, as the property tax payable to Municipal authority would obviously vary according to the area of a flat. However, so far as the charges for the society services or maintenance are concerned, no material was adduced before the Asstt. Registrar to show that any additional services were provided to the petitioner or any additional maintainence was incurred by the Society on account of petitioner being a holder of commercial premises. In the affidavit in reply filed in this Court also, it is not even be alleged that any additional services are provided to the petitioner by reason of her being the holder of commercial premises. In my view, the society was not entitled to levy society charges/maintenance charges for commercial premises at twice the rate that of a residential premises. I am in respectful agreement with the view expressed by this Court in Venus Cooperative Housing Society v. J.Y. Detwani (supra) in this respect. Regarding point No. 2. 8. Learned counsel for the society submits that under bye-law No. 45 of the bye-laws of the Society, a member is required to take previous permission of the managing committee before letting out and giving or giving on leave and licence basis or caretaker basis his premises or any part thereof. Clause (2) of bye-law No. 45 provides that no member shall be permitted to sub-let or give on leave and licence based or caretaker basis any part of the premises unless he makes an application in the prescribed format and in the application gives an undertaking that he would pay non-occupancy charges to the society at such rate as is decided in the meeting of the general body of the society. He therefore submits that the Society was entitled to levy non-occupancy charges of Rs. 16,000/- per month as claimed by it. 9. Learned counsel for the petitioner submits that in the bills issued by the society, it has not claimed any non-occupancy charges but had claimed the entire amount is claimed as society charges/maintenance charges and there is no basis for the contention that Rs. 32,000/- were divided into two parts viz. Rs. 16,000/-as society charges and Rs. 16,000/- as non-occupancy charges. He further challenges the validity of the bye-law and in any event submits that the charges were not claimed on the basis of this bye-law. He further submits that in any event as per the order dated 1st August, 2001, issued by the Government by virtue the powers conferred on it under Section 79-A of the Act, the Government has directed that the non-occupation charges cannot exceed 10% of the service charges. The learned counsel, therefore, submits that the service charges could not be 100% of the society charges and would have to be restricted to 10% of the service charges/maintenance charges. 10. I have perused the copy of the application made by the respondent No. 1 society to the Registrar for issuance of a certificate under Section 101 of the Act. In the said application, the society has not claimed non-occupation charges at all but has claimed the amount under two heads i.e. society maintenance charges and service charges. Thus, the contention of the learned counsel for the petitioner that Rs. 16,000/- per annum represent non-occupation charges is not borne out from facts pleaded in the application. Assuming the bye-law No. 45 to be valid it says that the society is required to fix the non-occupancy charges in the meeting of the general body. There is no pleading and there is no material on record to show that the general body meeting, the society had resolved to levy any non-occupancy charges. The directions issued by the Government under Section 79-A of the Act are binding on the society and their validity is not challenged before me. Under the said directions non-occupation charges cannot be levied at a rate more than 10% of the service charges. In law, non-occupation charges would mean charges for not personally occupying the premises i.e. either keeping the premises unused or locked or letting out or giving on license the premises. In view of the Government order issued under Section 79-A of the Act the non-occupation cannot exceed 10% of the maintenance charges applicable to the concerned flat/unit. The society was therefore not entitled to recover the charges as claimed by it in the recovery certificate. 11. Neither of the authorities below appear to have applied their mind to these aspects. In the circumstances, their adjudication has to be set aside and is accordingly set aside and the matter is remanded back to the Asstt. Registrar for deciding it afresh in the light of the observations made by this Court. 12. Rule is made absolute to the extent mentioned above.
question markConcept of Ancestral property in Christian religion 2 Response(s)
Dear Client, The succession rules amongst the Indian Christians are governed by the Indian Succession Act, 1925 which contemplates only those relationships that arise from a lawful marriage. There is no concept of ancestral property among Christians. All types of properties owned by an Indian Christian can be willed away by him/her by executing a Will or sale/gift. However, the law treats both types of properties (ancestral & self-acquired) very differently. So, you must identify a property as either self-acquired or ancestral (acquired by great-grandfather), Where an intestate has left a widow and if he has left lineal descendants, that is, children and children's children, 1/3 of his property shall belong to the widow, and the remaining 2/3 shall go to the lineal descendants. If the intestate has no lineal descendants but has left persons who are of kindred to him, ½ of his property shall belong to the widow and the other ½ shall go to those who are of kindred to him. If the intestate has left none who are of kindred to him, the whole of the property shall belong to the widow. In order to succeed under Section 37 of the Indian Succession Act, a person must be a lineal descendant, which means that he must be connected with the deceased by way of lineal consanguinity as his descendant in the direct line. Being grandchildren, they have the right to claim a share in the said property. Reach out to an Advocate for guidance and steps.
question markJammu High Court delivered 2 Response(s)
Dear Sir, Which ever is beneficial to you may be cited without disclosing the other. Normally, the latest judgement will be considered as valid judgement.