Burden Of Proof Under The Indian Evidence Act, 1872

Burden Of Proof Under The Indian Evidence Act, 1872
Burden Of Proof Under The Indian Evidence Act, 1872

Burden Of Proof Under The Indian Evidence Act, 1872




The laws relating to the Burden of Proof and its related rules are as provided in the Indian Evidence Act of 1872. This laws clearly states that until and unless an exception is established by law, the burden of proof will rest on the person who has asserted a fact or is making any claim. When a person has proven the existence of a fact then the burden of proof belongs to such a fellow.

In the Criminal case, there are always two burdens. The first burden is on the prosecution to prove at all cost against the defendant while the second burden lies with the defendant to bring about a convincing and sufficient evidence that will prove reasonable doubts surrounding the case of the prosecution.

This article will elucidate on the aspects of Burden of Proof as contained in section 101 of the Indian Evidence Act.



In simple terms, Burden of Proof is the responsibility to prove the fact in a case. Each party must provide a fact that will either stand for or against the case.

The term Burden of Proof is used to explain two major facts or burdens. The first is the Burden of production of the burden of “going forward with the evidence” and the burden of plea or persuasion.

The burden of plea or persuasion is the responsibility that rests on the single party through the period of the court sittings. The party carrying the burden can only succeed in its claims once it has absolutely satisfied the “tier of fact”.

For one to be presumed innocent in the court of law over a criminal case, the prosecution is faced with the burden to prove elements of the offense and disprove all defenses excluding defenses with affirmation which constitutionally are not required in the prosecution of the case.

The evidential burden should not be confused with the burden of persuasion. Evidential Burden can change hands between parties during the court proceedings. The evidential burden is only raised to provide enough evidence against a case in the court.


The underlining principles of the Burden of Proof are contained in the concept of Onus probandi and Factum probans. In this explanation, Onus (burden) is the liability and obligation to prove a fact which can shift between parties in the case. Sections 101, 102 and 103 of the Indian Evidence Act provides the standard laws that govern the Burden of Proof.

Section 101

This section in its explanation on Burden of Proof states that whoever wants the court to proffer judgment to a legal case or right based on the availability of facts, must prove those facts beyond any reasonable doubt.



  • In a case that a person A desires the court to offer judgment on B following a crime committed, A must prove that B has committed the said crime.
  • A has prayed to the court to give judgment that he is to own a certain land which presently is possessed by B, based on the facts he presents which B has denied. In this case, A must prove those facts to be true.

Real Case:

Supreme Court in a case between Jarnail and State of Punjab A I R 1996 SC 755 that in all criminal case, the responsibility of proving if the accused had committed the crime beyond all reasonable doubt rests on the prosecution and if it fails to establish concrete evidence to shed off the burden, it cannot depend on the evidence brought by the accused on defense in the case. The prosecution does not rely on the evidence of the accused to convict the defendant.


Section 102 – Burden of Proof of Lies

In a case brought before the court, the burden of proof lies who has the tendency to fail if no evidence is supplied before the court from either of the parties.


  • If A takes B to court following a feud because of a land which B is in possession and A asserts that it was left to A following a will made by C, who was B’s father. If neither A or B presents any evidence, then B will retain the property.
  • In a case where A sues B for money resulting from a bond. Both parties have agreed to the execution of the bond, but B disagrees that it was contracted by fraud which A disagrees. If no party can establish an evidence, then A would win as the bond had been contracted but the case of fraud cannot be proved. In that case, the burden of proof rests on B.

Real Case:

In a case between Triro and Dev Raj A I R 1993 J&K 14. Because of the delay in constructing the suit, the defendant had prayed the court over a limitation of the period. The position of the plaintiff was to know the cause of the delay and the burden of proving if the case was within the given period was on the plaintiff.

Section 103-Burden as to a fact

The burden of proof to a fact rests on that person who desires the court to believe in the existence of such fact unless a law authorizes the proof of the fact to be established by any particular individual.


If A sues B for theft, and desires the court to accept that B admitted committing the theft to C. A must prove that fact and if B denies it, B must prove it.

The principle of this section states that once a party desires the court to accept and act based on the existence of a fact, he must prove that fact. This principle is called “rule of convenience of the burden of proof”’ and is contained in sections, 104, 113, 113a and 114a.

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

This is a burden of proving a fact that is necessary to be proved to allow any person to establish evidence of any fact and is on the person who intends to establish such an evidence.


  • If A desires to prove the declaration of death by B, A must prove that B is dead.
  • B intends to prove by secondary evidence, the contents of a lost document.
  • A must prove that the document cannot be found. This section provides the proof of a fact for which evidence can be admitted where such admission is based on the fact of which the party proves which must be in tandem with the admissibility.

Section 105 – Burden of proving that case of accused comes within exceptions

When a person is accused of an offense, the fact required to establish the circumstances surrounding the case excluding General Exceptions in the Indian Penal Code 45 of 1860, or in any regulations defining it, is upon him while the court will presume the absence of such a circumstance.


  • When A who is accused of murder alleges that because of lunacy he was unaware of the nature of the act. The burden of proof rests on A.
  • An accused of murder, alleges that because of sudden provocation, he lost self-control, the burden of proof is on A.
  • Section 325 of the Indian Penal Code 45 of 1860 states that whoever excluding the case of section 335 inflicts a fatal injury shall be punished. A is charged with a voluntary offense under section 325. The burden to prove the circumstances bringing the case subject to section 335 is on A.

Thus, this section provides that the burden of proving lies on the accused if the claims on each case comes under the acceptable exception.

Section 106 – Burden of proving fact specially within the knowledge

When any fact confined to the knowledge of a person, the burden of proving that fact is on the person.


  • The burden of proving the fact is on a person who commits an act with the intention which is different from the circumstances that the act suggest.
  • On an occasion that A is charged on boarding a train without a ticket, the burden of proving such a fact is on A.

Real Case

In a case between Eshwarai and Karnataka 1994 SC, if a man and a woman is found hiding under the bedroom of the deceased who died because of injuries sustained, the two found must proof the lies upon them and explain their presence in the room as to the circumstance to the death found.

Section 107 – Burden of proving the death of a person known to have been alive within thirty years.

In a situation of a controversy whether a person is dead or alive, and it is established that he had been alive for the last thirty years, the burden of proving that he is not alive is on the person who states it.


Section 114A. Presumption as to the absence of consent in certain prosecutions of rape

In a prosecution for rape subject to section 376 of the Indian Penal Code, where sexual intercourse is proved against the accused, if the woman asserts that it was non-consensual sex, then the court will honor the claims of the woman.

Real Case

In a case between Nawab Khan and State 1990 cr Ij. 1779, the court held that the person with which the sexual intercourse is committed tells the court it was a non-consensual sex, then the court will assume there was no consent. If the accused claims that there was a consent, then the burden of proof lies with the accused.


The rule governing the burden of proof is that whoever lays a claim must present evidence or proof. This rule is subject to the principles that the burden of proof rests on the party that either asserts a claim or denies it. This implies that whoever brings a case against another to the court must prove the fact he claims. In criminal cases, the burden of proof on defendants is based on the evidence that is established before the court which states the fact that he committed the crime as adduced. An accused can only be presumed guilty based on the fact established by the plaintiff to the court in accordance with the Burden of Proof that rules the case.



Please enter your comment!
Please enter your name here