Indian Evidence Act- Burden of Proof (Section 102 to 114A)

Burden of Proof

Introduction

 

Chapter  7 of Indian Evidence Act deals with the concept of burden of proof. It deals with some principles regarding burden of proof. Burden of proof is essentially an obligation on a party to prove a fact.

What is burden of proof?  Which party is under obligation to prove a fact? Up to what extent party should prove a fact?

This chapter will answer some of the question.

Rules of Burden of Proof

Section 101- Burden of proof

 

In simplest term it means liability to prove some fact. Which fact?

If you assert something or deny something in court, then the responsibility of proving such assertion/ rejection is nothing but burden of proof.

A pleads that B should be hanged, because he murdered say X. Here A has to prove that B has carried out murder. B has intention to murder. If A successfully proves these facts, court might proceed with punishment.

Burden here is liability or responsibility on a party.

Section 102- On whom burden of proof lies

 

General rule is burden of proof will lie on that person who would fail when either party don’t prove a fact. 

For example, Ramesh have occupied piece of land ‘X’. Suresh Claims that he is the real owner of land, as father of Ramesh had gifted him. Who should produce a proof of this fact? Of course Suresh!  Because if no one gives any evidence Suresh will fail .

Let’s take another illustration. Suresh wanted to watch Avenger Endgame, and wanted 10000 Rs for it. He goes to Mukesh for money. Mukesh says, okay take money but give a promissory note stating that you will return the money within a year. After a year, Mukesh files a suit that he owe a money to Suresh with a proof of promissory note. But Suresh claims that though promissory note is real, but he didn’t take a money from Mukesh. Who will have a burden to prove that Suresh didn’t take a money?  To answer this, answer a question, Who will fail if nobody gives a proof ?  In this case Suresh will fail because he is claiming that he didn’t take money, and hence burden of proof of not taking money will lie on Suresh.

 

Section 103-Burden of proof as to particular fact

 

There are three things involved in this section

·        Particular fact

·        Burden of proof of that fact

·        Particular person

Section states that burden of proving a particular fact will lie on that person who believes in existence of that fact.

Illustration given under section is very lucid. A accuse B of theft in Mumbai. While prosecution, A states the fact that B admitted the theft to C. Now A wanted to prove that B has made an admission to C, and hence he is under obligation to prove to a court that admission was really made. Hence A has to call C as witness to adduce his fact.

What if in above case B claims that at the time of theft he was in Delhi. Here B is under obligation to prove the fact B was in Delhi. Plea of alibi!

Section 104-Burden of proving fact to be proved to make evidence admissible

 

Let’s first look at illustration.  A claim and wish to prove dying declaration of B in some dispute. He wants to make dying declaration admissible in court. In this case A first have to prove B’s death. So he might have to bring forward the death certificate or some other proof of B’s death.

Section states that facts required to make evidence admissible must be proved by a person who want to make evidence admissible.

 

Section 105-Burden of proving that the case of accused comes within exception

 

In IPC, there is chapter of exception under section 76 to 106. For example minor will be exception, murder in rage of insanity, attempt of murder in grave provocation  etc are covered under those chapter.

In case A kills B in rage of insanity, or when A lost his mind such that he didn’t know the nature of his act and later take a plea in court, then A has to prove that by reason of unsoundness of mind he did not know the nature of act. Absence of mens rea!

Section states that when person is accused of any offence, the burden of proving the existence of circumstance bringing the case within any of the general exceptions in the IPC, or within any special exceptions or proviso contained in any other part of the same Code, or in any law defining the offence is upon the person who claims such exception.

Section 106-Burden of proving fact especially within knowledge

 

Burden of proving facts which is under specific knowledge of person is on that person.

Illustration of person travelling in train is given. If TT comes to you and says you are travelling  without ticket, but you have ticket then it is upon you to prove that you really have ticket. The knowledge of having ticket is possessed by you and hence you must prove it.

Section 107-Burden of proving death of person known to have alive within thirty years

 

If person is found alive within thirty years, then to prove a death of such person is on a  person who claims that he is dead.

For example, A claims that  B is dead but B was alive within 30 years then A has to prove that B is really dead.

Here section presume that person alive unless proven otherwise.

 

Section 108- Burden of proving that person is alive who has not been heard of for seven years.

 

If we haven’t heard of person for seven years, he is assumed to be dead. If person’s close relative, his friends and anybody from his acquaintances haven’t heard are not able to contact it mean that person is dead. At least law assumes that.

When any party is a suit claims that such person is alive, then he has to prove and burden lies on him. Whenever party claims that person is alive about whom nobody heard for 7 years they burden of proving such person is alive is on that person.

Court assumes civil death when person is not heard of 7 years, and you have to prove otherwise if you claim.

Section 109- Burden of Proof as to relationship in cases of partners, landlords and tenant, principle and agent

 

When in below cases

·        Whether A and B are partners

·        Whether A is landlord and B is tenant

·        Whether A is principle and B is agent

It has been shown from conduct or behaviour that there exists a relationship of above kind between A and B, and if somebody claims that such relationship does not exists then person who affirms this will have to prove that there is no relationship.

 

Section 110- Burden of proof as to ownership

 

Suppose A rented a house from B. A is now in possession of house. Now A is not vacating house and claiming that it is his house. B files a suit that he is real owner. Here B will have to prove that A is on rent and  he is the real owner of the house. Law is strange, beware! Always do rent agreement when you let house.

Possession is prima facie evidence of ownership and title. Law assumes that person who have possession is owner. But such possession should not involve element of force and fraud.

Section 111- Proof of good faith in transactions where one party is in relation of active confidence.

 

This section is also known as the “great rule of the court”. It is based on law of equity.

When question arises as to good faith in a transaction the burden of proof that good faith involved in a transaction is on a person who is in the position of active confidence.

For example in relationship of doctor-patient, lawyer-client, father-son, landlord-tenant and question arises about good faith burden of proof will lie on doctor, lawyer, father and landlord respectively because they are in active and commanding position.

Another example is of Pardahnashin lady. If you enter in transaction with such lady then you will be in active position and hence you will have to prove good faith.

Section 111-A Presumption as to certain offences

 

This section is very simple but very contentious also. It is typically for offences against state. Sections from IPC (121, 121A, 122, 123) have applicability of above rules.

It states that burden of proving innocence is on accused. Some offences listed above is against natural principle of justice which states “innocent till guilty” but above offences state that “guilty till proven innocence”.  These sections generally applied over terrorist affected area.

 Section 112- Birth during marriage, conclusive proof of legitimacy

 

If child is born out during marriage such child will be legitimate, meaning child of husband and wife only ! Yes we have law for it!

Even if child is born within nine months such child be legitimate.

 

There are two essential conditions

1.   The child should have been born during the continuance of valid marriage, or if the marriage was dissolved within 280 days after dissolution and mother should remain unmarried for such duration

2.   The parties to the marriage should have had access (means and opportunity  for a sexual intercourse) to each other at any time when the child could have been begotten.

In Kamti Devi Vs Poshi Ram , court defined the word “access”.  

 

Section 113-Proof of cession of territory (REPEALED)

 

Section 113A- Presumption as to abetment of suicide by a married woman

 

This section deals with presumption that when married woman committed suicide, there is a presumption that her husband or relative of husband are kind of responsible for it.

There are three important points in this section

1.   Question before court should be whether the commission of suicide by married  is the result of abetment

2.   Suicide must have taken place within seven years of the marriage

3.   There must be some evidence to show that her husband or his relatives had subjected to her to cruelty

Section 113B-Presumption as to dowry death

 

There are below essential elements to this section

1.   Harassment by husband /his relatives.

2.   Harassment  by husband for demand of dowry.

3.   Woman was subjected to cruelty just before the death

If above things are found then Husband is presumed to have committed the dowry death.

Dowry death is defined in section 304 B of Indian Penal Code.

Section 114-Court may presume existence of certain facts

 

Certain power is given to court to presume below things. Remember it’s may presume.

1)   If man is possession of stolen goods soon after the theft and he cannot account for the same with reasonable explanation, then court may presume such person to be thief. For example, if shopkeeper is in possession of some notes which have some marking on it, and other person claims such notes are lost then shopkeeper had to account from where he got the notes. Shopkeeper then had to rebut the claim that he received such notes in normal transaction of business.

2)   Court may presume that accomplice (partner in crime) is unworthy of credit and cannot be trusted, unless he is corroborated in material particulars

3)   Bill of exchange, accepted or endorsed was accepted or endorsed for good consideration

4)   Court may presume that judicial or official act have been regularly performed.

5)   Court may presume about the common course of business.

6)   If person withholds the evidence, court may presume that if produce such evidence will be unfavourable to him

7)   If question is asked to a person, and he is not answering that court may presume that if answered such answer would be unfavourable to that person

8)   Court may presume that document creating an obligation is in the hands of obligor, the obligation has been discharged.

Section 114A-Absece of consent in certain prosecution for rape

 

In certain cases of rape, court may presume the absence of consent.