CHAPTER 6 ONUS OF PROOF

Burden of Proof:

e subject of burden of proof has been dealt with in Sns.101 to 114 of the Evidence Act. One of the cardinal principles of the Evidence Act is that the Onus probed is on him who desires The Court to find a fact in his favour. This is called the burden of proof. This has two distinct meanings, As a matter of law and pleading,

ii) Burden of establishing a case. In the trial the first is fixed and remains unchanged, but the second will be shifting from one party to the other as soon as evidence is adduced by one to establish a fact. The Evidence Act has made provisions to state on whom the burden of proof-lies.

i) A person who wants the court to give a judgment as to his legal right or liability on certain facts Must prove the existence of those facts; that is, the burden of proof lies on him who substantially 'asserts The affirmative of the issue'. The proving of negative is beset with many difficulties due to lack of direct proof. Hence the affirmative is to be proved. Eg. A desires the court to convict B of theft under Sn. 380, I.P.C. A must prove that B has Committed the crime.

ii) The onus lies on that person who would fail if no evidence at all, was given on either side. 'A' sues B for Rs.3, 000-00 on a promissory note. The execution of the promissory note is admitted But B says that there was fraud. A denies this. The burden to prove fraud is on B. . If no evidence is given on either side, A would succeed as the fraud is not proved.


iii) The onus on any particular fact lies on him who wishes the court to believe in its existence (Any Law may suitably provide on whom the burden shall lie).

Eg. A prosecutes B for robbery. A wishes the court to believe that B admitted robbery to C. A must Prove the admission.This is called the great rule of the court; the person who makes a bargain must prove his good faith, E.g. Trustees, Attorneys etc. The risk of abuse by such person is always there. Hence, the rule is that he must prove 'good faith' in his dealings. A, a client sues his advocate B to set aside a sale. B must show that he has acted in good


iv) When it is necessary to prove any fact, in order to make evidence of any other fact admissible, the Onus of proving it, is on the person who wants to give such evidence.

v) The burden of proving the circumstances to come within the general exceptions in the I.P.C. is on The accused. A is accused of murder. He alleges that he was of unsound mind. The burden is on A.

vi) Special Knowledge: When any fact is especially within the knowledge of any person, the burden Of proving is on him. A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket Is on him.

vii) Life and Death of a person: If a person is. Known to be alive within 30 years, the onus of proving that he is dead is on the Person who affirms it. Is a person is not heard of for seven years, there is a presumption of law that he is dead. However, if a person asserts that he is alive, he must prove it.

viii) Relationships: When there is existence of a relationship such as partnership, agency, tenancy, the burden of proving that there is no such relationship is on him who so asserts. A, B & C are partners of a firm. D, a distributor asserts that there is no firm. D must prove that.

ix) Active confidence: If one party to a transaction 'A' stands in a position of active confidence to B The burden of proving good faith is on A.


x) Sn. 112: Irrebuttable Presumption: The fact that any person was burn during the continuance of a valid marriage between his mothers And any man, or within 280 days after divorce (the mother remaining unmarried) shall be conclusive proof that the son is legitimate. The burden is on the husband to show that he had no access to his wife at all and very strong proof is required by courts to establish this. Eg. Husband living abroad for over one year. Here, H had no access to his wife, when the child Would have been begotten.Sn. 113: Cession of territory by Govt.: The official gazette notification is conclusive proof.

xi) ‘May’ or ‘shall.' Presume: Court makes a presumption of any fact according to the common Course of natural events, human conduct etc. The burden is shifted on to the other party.



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