Relevancy of Burden of Proof in Indian Legal Provisions (w.r.t. Indian Evidence Act, 1872)

Introduction:

Every single idea thought, perspective, or notion in this Universe either comes with Knowledge about the circumstances or any sort of Hypothetical theory or Assumption based on the facts in context to the situation.

But Hypothesis and Hearsay are not admissible especially when it comes to Legal provisions like the Indian Evidence Act, 1872 mainly because the ideas and notions behind proving the grounds in such cases are not being backed by that person’s direct knowledge to prove his/her logic regarding witnessing of an event, rather it is the unverified information backed by probability or rumors about happening of such an event which cannot be proved.

Burden of Proof

Judiciary as a guardian and protector of human rights ensures that every citizen is treated as an equal without any partiality, bias, or fear in order to ensure peace, maintain order and balance as well as good governance in the country.

According to The Universal Declaration of Human Rights, 1948(UDHR), decreed by United Nations General Assembly, sets fundamental human rights to each and every person of all nations as per Article 10 deserves full equality and Right to a fair hearing and public hearing under an independent and unbiased tribunal and the same notion is enshrined under Article 21 of the Constitution of India, 1950 i.e.- Right to Life and Section 304 of the Code of Criminal Procedure.

The burden of Proofas a concept concerns the consideration of direct factual evidence which as a legal requirement determines the credibility and viability of such claim and is covered under Section 101-114B of The Indian Evidence Act. In order to pass a reasonable and fair judgment to presume the innocence or guilt of any party, the Indian Evidence Act, 1872(which lays down the procedure for relevancy and admissibility of Evidence) ensures that the evidence which directly acknowledges the certainty of occurrence of an event is only taken into consideration so as to prevent the miscarriage of justice to the innocent party.

The Burden of Proof acc. to Indian Evidence Act, 1872 (IEA)

Indian Evidence Act, 1872 considers basic elements to define the types of evidence that can be presented by either party, which includes:

• Admissibility: Admissibility is essentially the rules in the Act that allows/disallows particular evidence as admissible or otherwise before a judicial forum.
• Fact: Facts are the truth or reality of events; things or relation of things perceived as they were at the time of occurrence of an event or activity, and totally in contrast to interpretation.
• Relevance: Relevance is the connection that is legally pertinent with respect to time-period or circumstances of events.
• Fact-in-Issue: Fact in issue refers to those relevant facts, out which any sort of legal dispute, right, liability, or disability of either party are considered and decided by the Court.

In consideration of all these above-mentioned elements, the Indian Evidence Act, 1872 ensures that either party who claims or asserts that there is a legal dispute, right, liability, or disability arising out of the facts has the Onus or the obligation to prove the relevancy of such claim unless there is an exception in the provision.

Provisions of The Indian Evidence Act, 1872 concerning Burden of Proof

Section 101 IEA (Burden of proof)

Section 101 of the Indian Evidence Act talks about the establishment of the case where any party wants the Court to give judgment related to any right or liability, then that prosecution is claiming or asserting that that dispute exists. The prosecution is the one or that party is the one who needs to provide relevant facts in order to prove what he/she is saying as, or he/she has the burden of proof.

Illustration

Shivam wants a court to rule that Maahi should be punished for a crime that Shivam claims Maahi committed.

Shivam must show or prove to the Court that Maahi is the perpetrator of the crime.

Section 102 IEA (On whom Burden of proof lies)

Section 102 is concerned with the shifting nature of the Burden of proof and the party which fails to back their argument with relevant evidence loses suit or proceeding whether there is no evidence given by either side of the party on which burden of proof remains, fails to provide any kind of evidence that would support or help to prove his statement.

Illustration:

(a) Aditi sues Diksha for land that Diksha owns. According to Aditi, the land was left to Aditi by Devansh or Diksha’s father, in his will.

Diksha would be entitled to keep his possession if no proof was presented on either side.

As a result, Aditi has the burden of proof.

(b) Tushar claims Ojas murdered Prithvi

Ojas says that he was not there at the time of the murder. But Tushar claims that he has recordings to prove his statement. But Ojas says those recordings are fake and he can show the tickets and hotel card. And now if Tushar fails to counter Ojas, then he would lose the case.

Section 103 IEA (Burden of Proof as to particular fact)

Section 103 discusses the Burden of proof to any particular fact which lies on that person who wants Court to believe that his/her fact or what he/she is trying to say is that what he/she says is in existence.

Illustration

Aadhav accuses Nitish of extortion and wants the Court to believe that Nitish confessed to Sachin. The admission must be proven.

Nitish wants the Court to assume that he was elsewhere at the time in question. He has the Onus to prove it.

Section 104 IEA (Burden of proving fact to be proved to make evidence admissible)

Section 104 of the Indian Evidence Act says that it is necessary to prove anyone fact to prove another fact then the party needs to prove the second fact first.

Illustration

The party says that Manish gave a statement (dying declaration) before he died

So now the party first needs to prove that B died, if it is be proved that B died then only the dying declaration will be proved

Or in other words, the First-party needs to prove with primary evidence if he wishes the Court to consider the secondary evidence

Section 105 IEA (Burden of proving that case of accused comes within exceptions)

Section 105 explains that the person accused has the burden of proving that his/her case comes under the general exceptions or any other kind of exception mentioned in the provision. Section 105 is only applicable to criminal cases.

Illustrations

• Vishnu says Mridul murdered Meghna. Mridul says he was intoxicated, so now Mridul has the burden to prove that he was intoxicated during the commission of murder along with proving Intoxication is an Exception in the legal provisions.
• Animesh is accused of murdering Chetna. Animesh says he was in unsoundness of mind at that time so now Animesh has the burden to prove that he was not in a sense is at that time of the murder.
• Hemant is accused of murdering Pranesh. Hemant says that he did it sudden provocation now he needs to prove that he was provoked along with Sudden Provocation being an exception.

Section 106 IEA (Burden of proving fact especially within knowledge)

Section 106 refers to the party that needs to prove the fact which was in his knowledge no one else knows it. He was the only one who possesses the burden to prove the fact.

Illustrations

• Police find Vikas in the place where the theft took place things were not in their places the lock was broken. Police arrested Vikas saying he was trying to commit theft. Here, Vikas says that he is the lock-maker, and he was not breaking the lock. So, here Vikas has the burden to prove that he is the lock-maker, and he was not doing theft.
  The burden of Proof constantly keeps changing as per the Indian Evidence Act Sections 102 and 106.
• Madhan is charged for traveling without a ticket. Madhan says he has the ticket, so now he has the burden to prove that he had the ticket as no one knows it apart from him

Section 107 IEA (Burden of proving the death of person known to have been alive within thirty years)

Section 107 is concerned with the question coming in front of the court regarding whether a person is alive or dead. If a party raises a statement in the Court where it showed that he/she was alive for the past 30 years, then the party who is saying so has the burden to prove their statement.

If it is shown that the person was alive within 30 years, then the Court will also presume that the concerned person to be alive.

This presumption of the Court can be result by proving proof to show that the presumption does not exist, although this presumption is not a strong belief as this presumption is regarding a life. If any Party says or believes that the person concerned is not alive and is rather dead, then the party saying this needs to prove their argument or he/she has the burden of proving and showing how and when the death took place.

Section 108 IEA (Burden of proving that person is alive who has not been heard of for seven years)

Section 108 acts as a proviso for Section 107 as they are complimentary of each other, hence they are read together.

Section 108 talks about the presumption of death if any person is not to be seen by anyone for the past seven years or more then that person should be presumed dead by the court. But if any party comes in says that the person concerned is alive then the person saying so, needs to prove that that person is alive by showing any evidence of his existence. 

Section 108 only presumes about the death of any person not about the time of death of a person as the time of death must be proved by other evidence. The court cannot deny providing complainant appointment as deemed death civil death and natural death are same.

Illustration

The court presumes Shashi is not alive as she was not seen for the past seven years and then Ravinder claims to the Court and says that Shashi is alive, then here Ravinder has the onus to prove that Shashi is still alive.

Section 109 IEA (Burden of proof as to relationship in the cases of partners, landlord, and tenant, principal, and agent)

Under Section 109, if it is shown that both the parties are related to each other either as a husband, wife, landlord, and tenant then it will presume that this relationship existed at the time when the dispute took place. If any of the parties deny so, then such party has the burden to prove what he/she is saying is the truth.

Illustration

Nikita and Aryan are landlord and tenant respectively then Court will prove that they had some truffle of relationship at the time of dispute and if B says that no they did not have the same type of relationship at the time of dispute took place then the burden of proof will shift to be to prove that what he is saying and if B says that the tenant was not paying rent to a then this would not be accepted as evidence for what he is saying.

Section 110 IEA (Burden of Proof as to Ownership)

This section talks about ownership. According to section 110, the court presumes that if any movable or immovable property is in the possession of any person, then that person would be known as the owner of that movable or immovable property. If any person denies the presumption of court by saying that no he did not have possession of the movable or immovable property, then that person denying it has the burden to prove what he is saying. 

Possession is known as “prima facie” proof of ownership and it is considered as evidence of complete title. Section 110 would not apply to the property which is obtained by fraud or by force. 

Illustration

If Anand has a cycle but the court is presuming that the cycle belongs to Babita and if Babita denies it, then Babita has the burden of proof to prove that the cycle does not belong to her. 

Section 111 IEA (Proof of good faith in transactions where one party is in relation to active confidence)

Section 111 says that if any transaction took place between parties in good faith, then if any of them is inactive confidence. Then the person in active confidence has the burden to prove that the transaction took place in good faith. Active confidence means a relationship in which one of the parties is securing or protecting the interest of others. 

Relation of active confidence is between father and son, advocate and client, doctor, and patient. This rule applies to executor, trustee, agent, attorney. Good faith means when the act is done with bonafide intention. If any act is done with full precaution, then that act would be considered an act in good faith. 

Section 111A IEA (Presumption as to certain offenses)

This section says that if any person was indulged in the offense or committed any offense which comes under IPC, section 121, section 121A and section 122 and section 123 or if he is indulged in a criminal conspiracy under section 122, section 123 of IPC, in the area which is disturbed or if he tries to surprise any public orders, like where people need to follow such guidelines and if he tries to disturb that or he did any offense which resulted in the extensive disturbance of public peace for 1 month and if it is showed that, that person was that at that time then the court shall presume that that person has committed that particular offense which is mentioned above. If that person denies it, then he has the burden of proof to prove that he was not the one court is presumed. 

Section 112 IEA (Birth during marriage, conclusive proof of legitimacy)

This section talks about legitimacy which is the conclusive proof of birth during the marriage. It says that if a child takes birth during the marriage of his parents, then it would be conclusive proof that the child is the legal child. It would be conclusive proof that the father of the child is the one with whom his/her mother is marrying. 

If any person talks place within 280 days after divorce and his mother did not remarry. So, it would be conclusive proof that the person who took birth is the child of that man only with whom his/her mother is marrying. Unless the party proves that the child is not his as he did not have any access to that woman or mother. Then the court will presume that the child of that man is the person with whom that child’s mother got married. 

Section 112 says maternity is not important to prove but paternity is. It is the presumption of law. The court will presume that such person to be the father of a child until unless ‘non-excess takes place.

During the Marriage

This section says that if a child takes birth during the marriage of parents, then the person who is marrying the mother would be considered as the father of that child. It would be conclusive proof. It does not matter if the child takes birth after one month of marriage or five months of marriage or nine months of marriage.

This whole thing can be rebutted by non-access. If the man says he did not have any access to that lady or woman, hence the child is not his. It does not talk about logic but law. if the person proves the non-access, then the paternity will not establish. But if he fails to prove non-access according to him and then in every case court will presume that person to be the father of that child. 

Earlier it was thought that non-access means no sexual intercourse and it was important for men to prove the non-sexual intercourse if they did not want paternity to be established. But later it changed and resulted that it is not necessary to prove non-sexual intercourse. Man, just had to prove that he did not get any such opportunity where he could be alone with the child’s mother. Now opportunity needs to be proved not sexual intercourse. 

Courts do not directly ask for DNA. As it is a kind of interference in the person’s personal life, and it disturbs the right to privacy. Generally, the court asks for no access in rare cases only court as for DNA tests. 

Section 113 IEA (Proof of cession of territory)

After independence, this article does not have that much importance. This section talks about the proof of the cession of territory. It says that if in the Gazette of India, the notification which is passed, according to that, any portion of British territory before the government of India act 1935. Part III is given to any native state, ruler, or prince. Then it would be conclusive proof of any valid cession. 

This section is ultra vires obsolete. It is said that this section must be removed from the Indian Evidence Act.

Section 113 A IEA (Presumption as to abetment of suicide by a married woman)

This section talks about the suicide committed by women. it also looks that the husband or any relative of a husband had abetted her to commit suicide. It also looks that whether a woman faced cruelty from her husband or relative of husband within the seven years of marriage. Then, in this case, the court may presume that the husband or relatives of the husband within the 7 years of marriage. Then in this case the court may presume that the husband or relative of the husband abetted the woman. In such cases, the court has discriminatory power. It is upon the court to find out who abetted the woman either husband or relative of husband. Then husband has the burden to prove if he did not do so. In case the court thinks that relatives of the husband did that offense then relatives of the husband have the burden to prove that they did not abet. The court may ask for evidence if it does not want to presume as the husband or the relatives of the husband denying the acquisition. 

According to The Code of Criminal Procedure, 1 46 of 1983, section 113A was inserted in the Indian Evidence Act, 1862. This section comes into action only when things are beyond the reasonable doubt- 

· When the married women committed suicide. 

· She was abetted by her husband or relatives of her husband. 

· When she commits suicide within 7 years of marriage.

· She faces cruelty during the period of marriage.

Then only the court will presume that the husband of women or relatives abetted her to commit suicide. 

Cruelty is defined as the same which is defined in 498A of IPC. Section 113 A has a retrospective effect. The presumption of section 113A is only applicable to a husband not to a woman. Court will look after each and every circumstance before giving the decision. 

Section 113 B IEA (Presumption as to dowry death)

If a question comes in front of a court that husband murdered his wife for dowry, and it is shown that before her death she was used to be harmed by her husband and faced cruelty for dowry. Then in this case court shall presume that the husband has caused the dowry death. The court is obligated to presume. Section 113 B has the same definition of dowry death which is explained in section 304B IPC. According to section 304B, dowry death is punishable. Dowry’s death is non-bailable and a cognizable offense. 

Essential conditions where dowry death can be presumed:

If the question comes before the court that any person has committed dowry death or not, a presumption can be only raised if the person is tried for the offense of dowry death under 304B IPC. 

• If the woman has been harassed or faced cruelty by her husband or relatives. 
• That harassment/cruelty must have a connection with a dowry. 
• That cruelty or harassment must be soon before the death of that wife. 

According to the dowry prohibition act section 113 B was inserted in IPC and section 304B was inserted in section 113B of the Indian evidence act. 

Section 114 IEA (Court may presume the existence of certain facts)

Section 114 of Indian evidence discusses the common course of natural events, human conduct as well as normal public and private business. If in these circumstances, something has happened then the court may presume that the things must have happened in that way. The court has discretionary power. The court may presume the existence of any fact which the court thinks that the same has happened or is likely to have happened. Because it would have happened normally in the common course of natural events or normally in the human conduct or normally in the public or private business. 

This is not conclusive proof. Parties can deny it and prove otherwise as there are nine circumstances for sure which are so many. So, any party can go against anyone circumstance and prove other circumstances. These circumstances are inclusive, not exhaustive. 

 Illustration I

The presumption says that when a person is having stolen goods with him, the court either treats him as committed theft or he has received the stolen goods knowing that that particular thing was stolen. The burden of proof always lies on the prosecution. If that person says that he did not steal that good or he did not know that such a thing was stolen, then he has the burden of proof to prove it. He has to give reasonable means that how that stolen good came under his possession. If he successfully explains what he was trying to explain then the court will not presume that he committed theft, and he would be acquitted. 

The court is free to presume that such a person is guilty if such person cannot successfully explain from where such good came under his possession.

The court can not presume if a person proves such a thing beyond a reasonable doubt. 

• The ownership of the article in question. 
• The commission of theft
• Recent possession

If the prosecution successfully proves these elements, then the court will acquit him. Possession must be exclusive. 

Illustration II 

Accomplice is not defined In the Indian evidence act. A person who is a guilty associate in crime is known as an accomplice. He is the person who was with the person who committed any offense. 

For example, Stefan, Elena, and Damon committed theft together. If Elena is presented before the court, then she would be considered an accomplice. 

Types of an accomplice;

• One who planned to commit a crime. 
• A person who helped or was inactive role to commit a crime. 
• One who helped criminals to hide or flee or erase evidence or threaten the witness. 

Accomplice is unworthy of credit. The court cannot rely on the evidence which is provided by the accomplice unless his collaboration is not done with material particular. Here court may presume that the evidence provided by the accomplice is unworthy of credit. 

Section 133 of the Indian evidence act says the opposite of section 114 of the Indian evidence act. It says that a conviction done on the evidence which is provided by an accomplice is not illegal. 

That is the reason why it is said that the testimony of the accomplice should be corroborated with other evidence. As it is not safe to rely fully on accomplice testimony without the evidence. It does not matter what section 133 of Indian evidence says. 

Corroboration of accomplice testimony with evidence is important. It is not important to have direct evidence, circumstantial evidence can be used for corroboration. 

Illustration III 

This illustration talks about presumption as to the bill of exchange. Here court may presume that the bill of exchange that is accepted has been accepted for good consideration. But, when the court is presuming so, it must keep in mind other things too.  

This section can be compared with section 118 of the negotiable instrument act. Which is related to all kinds of instruments that the court may presume. If any instrument is transacted, then it would be presumed that such a thing was done for good consideration. Section 188 of the negotiable instrument act only applies to instrument parties. The court has discretionary power in the case of section 114 of the Indian evidence act. But as per section 118 of the negotiable instrument act, the court is bound to presume. 

Illustration VI 

This illustration talks about the presumption related to the continuity of anything. For example, it is shown that Aditya possesses a cycle, then the court may presume the continuity of that thing in the possession of Aditya until his possession is disapproved. 

This section allows the court to presume. The court can presume not only in a forwarding situation but also in a backward situation. 

Illustration V 

This illustration talks about the presumption of the performance of an official or judicial act. Here court can presume that all the official and judicial acts are performed regularly. If any question arises on the regularity and it is proved that these acts were performed in exceptional cases. Then in such a case court can not presume that it was followed regularly. 

Illustration VI 

This illustration talks about the presumption of transactions in the usual course of business. Here the court can presume that the parties when they were performing the transaction of the usual course of business, they were following the common course of business. 

This section has a connection with section 16 of the Indian evidence act. Where section 16 says that if any act is done, then the inference would be drawn that it would have been done in the general cause of business. 

For example, if the letter is posted with the correct address and is not returned by a dead letter issue, then the court may presume that in the course of business, the letter has been received at that particular address. If the letter is posted as well as the registered post, then the presumption will be strong. 

Illustration VII 

It talks about the presumption of withholding evidence. It says that if any person is having any evidence and he has to provide that in court, but he did not give it in court. Then here court will presume that the evidence person is holding is against him. That is why he is not giving it in court. 

Illustration VIII 

This illustration talks about a refusal to answer. This illustration says that if any person is compelled to answer by law and he denies answering that question, then here court may presume the reason why that person is not answering, as his answer can go against him. But during the committal proceeding, if any accused refuse to disclose in his defense, then inference cannot be drawn against him. 

Illustration IX 

This illustration talks about presumption as to document in hand of obligator. Here it says that if a document that can create obligation is with the obligator, then here the court may presume them the obligation has been discharged. 

Conclusion

Indian Evidence Act ever since its enactment and commencement has entirely revolutionized the Judicial system by providing a systematic form of a set of rules and regulations that concern the types of evidence which must be provided by either party to prove that there is a legal dispute, right, liability or disability and such party asserting such claim has to prove their point with admissible facts relevant to the fact-in-issue. 

When such arguments or verified information are generally backed by that person’s direct knowledge to prove his/her logic regarding witnessing of an event, then only under such cases the Judge can pass judgment in the matter ensuring a fair trial to the parties without any partiality, bias, or fear to ensure peace, maintain order and balance as well as good governance in the country. 

The burden of Proof is the consideration of direct factual evidence provided by the party having onus to prove the claims of direct witnessing, knows certainty of occurrence of an event as a legal requirement to prevent the miscarriage of justice to the innocent party.

In consideration of all these above-mentioned elements, the Indian Evidence Act, 1872 ensures that either party who claims or asserts rights or liability arising out of the facts has the Onus or the obligation to prove the relevancy of such claim unless there is an exception in the provision. The Law has been through several amendments since its commencement and even in the future, it is expected to evolve with changes and needs of people to eradicate any sort of loopholes in the provision that hampers serving justice to people in any way.

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References:

1. Universal Declaration of Human Rights
2. The Code of Criminal Procedure, 1973
3. The Constitution of India, 1950
4. Indian Evidence Act, 1862
5. https://www.un.org/en/about-us/universal-declaration-of-human-rights
6. https://www.un.org/sites/un2.un.org/files/udhr.pdf
7. https://www.yourarticlelibrary.com/essay/law-essay/judiciary-functions-importance-and-an-essential-quality-of-judiciary/40352
8. https://www.investopedia.com/terms/b/burden-proof.asp