BURDEN OF PROOF (Section 101-114)

Criminal Law Indian Evidence LAW EXPLAINED
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The Burden of Proof rests on the individual making any arguments or alleging some fact until and unless an exception is provided by law, under Indian Law. There are always two burdens in a criminal case. The first burden is on the prosecutor to argue against the defendant at all costs, while the second duty is on the defendant to offer compelling and adequate proof to show fair concerns regarding the prosecution case. The provisions related to the Burden of Proof have been specified in the Indian Evidence Act, 1872.

The definition of the burden of proof is established in accordance with section 101 of the Law of Evidence Act, which states that if a person is bound to proving the same is on him. Chapter VII of the Act addresses clauses that are under the onus of proof. This article clarifies all the aspects of the Burden of Proof, which consists of its meaning, principles, related provisions and few relevant case laws.


Simply put, the duty of proof in one case is the obligation of proving the truth. Every party has to have proof that either stands for the case or against it. The word evidentiary burden is used to describe two big facts or burdens. The first is to produce the burden of proceeding with the evidence, and the burden of plea pr persuasion. The duty of appeal or argument is the obligation that lies on the one-party through the sittings of the trial. The evidential duty of justification should not be misunderstood. During court proceedings, the proof burden can change hands between the parties. The burden of proof is only imposed to provide ample evidence in court against a defendant.


The Burden of Evidence theory is based on the idea of the onus probandi (evidence burden) and factum probans (proving a fact). Although the standard of evidence remains unchanged, it is the obligation for the same changes from one side to the next. The facts that need to proven are those that are not naturally self-evident.

The relevant Sections of the Indian Evidence Act, 1872 provide the standard laws that govern the Burden of Proof.

In the case of Jarnail Sen v. the State of Punjab,1 in which, if the defendant fails to adduce the sufficient evidence to discharge the responsibility, they cannot rely on facts provided by the accused person in favour of their defence.


One who wishes any court to render judgment as to any legal right or responsibility that relies on the existence of evidence that he argues must show that these facts exist. If a person is bound to prove the existence of some truth. The person’s burden of proof is said to lie on him.2

  • In a situation in which a person ‘A’ intends the Court to give judgment on B regarding a crime that was committed, A must prove that the B has committed an offence.
  • Where ‘A’ wishes a Court to pass judgment, he is entitled to be true to certain lands in B’s possession on the grounds of facts that he claims and that B denies. A must prove the presence of those facts.

In Krishnan Assari Velayudhan Asari v. Parmeshwaran pillai Madhawan Pillai3, a sub-mortgage was executed by the mortgagee. It was alleged that mortgagor knew everything. The burden of proving the allegation is on the person who asserts it.

In Jarnail Singh v. State of Punjab4, the Supreme Court observed that in a criminal case, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon the prosecution, and consequently if it fails to adduce the reasonable evidence to release that burden it cannot fall back upon the evidence adduced by the accused person in maintaining of their defence to rest its case solely thereupon.


This provision talks about that, on whom the burden of proof lies. This section seeks to identify the party on which the burden of proof lays, the burden of proof lies on the party whose claim would fail if there is no evidence from either side.5

  • A sues B for family heirloom ownership, which A says was left in will by his father, if no proof is given by either side, B will keep the family heirloom.

There are more areas of the burden of proof-

  • Burden of Proof in Civil Cases:

In civil cases, the burden of proof in the sense of proving a case is discharged by more preponderance of probability.

  • Burden of Proof in criminal cases:

In criminal cases, the prosecution has to prove the guilt of the accused beyond a reasonable doubt. The mere preponderance of probability could not do so.

  • Burden of Proof placed on the wrong party:

Where the burden of proof is placed on the wrong party, it vitiates the judgment of the court.

In Triro v. Deo Raj, 6 there was a delay in filing the suit. The defendant has taken a plea of the limitation period. The plaintiff was in a position to know the caused delay. The burden of proving that the matter was contained by a given limit was on the plaintiff.

In Trilochan Dandena v. State, 7 to prove the validity of the transfer of land of a member of Scheduled Tribe and perfection of title over it by adverse possession, the burden is on the transferee.


The section places on the party who wishes the Court to believe and act upon the presence of a fact the responsibility for the presumption of evidence. Such values remain untouched by the fact that the statement of a particular truth is negative or affirmative.8

  • ‘A’ prosecutes B for fraud, and the court wanted to assume that B had confessed the crime to C. The admission must be proven to be A. B wants the Court to assume that he had been elsewhere at the time in question. He has to prove it.


This section notes that if the admissibility of one fact relies on the presence and enforceability of another fact, the party would be based on the assumption that the subsequent evidence is admissible.9

  • ‘A’ needs to show that B is alive; A must show that B is dead.


This section applies to the exceptions granted to the accused that will benefit from ‘the general exceptions to the Indian Penal Code or any of the special laws.’ The fundamental rule allows the Court to assume the accused’s innocence before it has been proved otherwise and it is up to the prosecutor to determine the accused’s guilt.10

  • ‘A’ convicted of murder, maintains that he did not know the essence of the crime because of mental illness. The onus of proof falls on ‘A’.

Where the risk of the accused having caused self-defence death was deemed sufficient even though he had not taken up his defence in the committing proceedings. Again the Supreme Court held that by demonstrating a preponderance of probability, the burden of proving that the case falls within any of the general exceptions may be discharged. Within section 105 of the Evidence Act, the burden of proof rests with the accused, who makes the statement of self-defence, and in the absence of evidence, the court cannot conclude the validity of the statement of self-defence .11

In Kashi Ram v. State of U.P,12 it was held by Supreme court that plea of self-defence cannot be denied to the accused person on the ground that the plea was not especially taken by the accused person and because the accused person did not enter the witness box.


Under the aforementioned rule, any person who is claimed to be aware of a particular fact has the responsibility of proving that such a fact is upon him. The section uses the word “Especially in knowledge” which denotes that possession of such knowledge often transfers the burden of proof to the possessor.13

  • If a person acts in a manner other than indicated by the character and circumstance of the act, the responsibility of proving the intention rests with him.

Where a man and a woman were discovered in the bedroom of a person killed because of serious injuries, the responsibility was on them to explain the reasoning behind their presence. This was believed that if they are presented at the crime scene they would have unique information about the circumstances in which the person’s death was caused.14

In Sucha Singh v. State of Punjab,15  where a person was abducted and murdered, it was held that if an accused wants to prove that he was not associated with the murder of the abducted person, it is in his special knowledge what he did at the time of the murder and if the accused by virtue of special knowledge regarding such factor failed to offer any explanation from which the court may draw a different inference, the court will presume that all the abductors were involved in the murder of the victim but it should also be remembered that the explanation given by an accused does not relieve the prosecution of burden to prove them guilty of accused beyond the reasonable ground.


The basic principle that follows the act of Indian Evidence is to transfer the burden of proof to a person who claims a fact or claim. The same is evident in the specific sections of the act. The reasoning behind the same is that if a person argues something, he could prove the same as well. These instances are available in sections 107 to 110.16

Section 107 states that if a person who was alive within the last 30 years is said to be dead by another person, the person affirming the same must prove the death. Similarly, under section 108, a person who hasn’t been heard from in 7years and is therefore presumed dead, the burden of proving that the person is on whosoever affirms it. The situation is similar under 109 which talks about establishing relationships between partners, landlords, tenants &principal, agents and under section 110 regarding assertions of ownership. Whoever affirms it, must prove it. The case is similar in section 109, which addresses forming relationships between partners, landlords- tenants& principal- agents and in section 110 regarding ownership statements. Someone who believes that will prove it.

In Kantilal v. Shanti Devi,17 the Rajasthan High Court said that proof of possession varies with the nature of property under the scrutiny of the court, the onus lies on the plaintiff to prove hid legal possession within 12 years. Once it is established onus shifts on the defendant to prove that he is entitled to retain possession based on a better title.


This provision talks about where there is a doubt as to the good faith of a transaction between parties, the duty of showing the good faith of the transaction is on the party in a position of active trust to the other.18


  • The good faith of a client’s selling to a lawyer is at issue in a suit brought by the defendant. The burden of proving the transaction’s good faith rests with the lawyer.


This provision says that in a troubled environment, a person accused of committing certain crimes under the Indian Penal Code, such as conspiracies against the government etc., is assumed to be guilty and must prove his innocence, thus putting the burden of proof upon him.19


This stipulates that if a child is born during a marriage or within 280 days of its dissolution, he can be considered to be his father’s legitimate child.20

Presumption about legitimacy:- Maternity admits of positive proof, but paternity is a matter of inferences. The connection of a child with his father is secret but it may be ascertained by the subsisting facts. It is a legally constituted relation between him and the mother of a child. section 112 lays down the rule for the proof of the paternity of an individual. 21


This provision says that a publication in the Official gazette that any portion of British territory has before the commencement of part III of the government of India Act, 1935 been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a legal transfer of that territory took place on the date specified in that notice.22


In cases of charges of abuse, brutality and dowry death, these establish presumptions against the husband and his kin. To prove the innocence of evidence rests on the husband and his family.23

Where the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498-A of Indian Penal Code, 1860, it is only in a rare case that the Court can refuse to invoke the presumption of abetment, if other requirements under Section113-A of the Evidence Act are satisfied.24

To attack the presumption of dowry death, it is essential to establish that the victim had been soon before her death subject to cruelty or harassment in connection with dowry.25


This requires the Court to assume other evidence, such as that possession of the stolen property means the thief is the individual. Another example would be that if a person fails to answer a question put to him in Court, the assumption would be that it would be unfair to him if he had answered. Several other cases have been mentioned in section 114, enabling the court to infer the presence of such facts and transfer the burden of proof accordingly. Such presumptions usually run contrary to a commonly defined burden of proof standards. The burden of evidence still lies on the faction that the presumption works against.26   


SECTION 114A OF THE ACT27: Talks about the Presumption as to the lack of consent in certain prosecutions of rape. In a rape case under Section 376 of the Indian Penal Code 1860, where sexual activity is shown against the accused if the victim argues it was non-consensual sex, then the Court must uphold the women’s assertion.


The law that governs proof presumes that someone who makes an argument must show proof or facts. This rule is subject to the principles that the duty of evidence lies upon the party either making or denying an argument. This means that someone taking a case to trial against another must prove the facts he argues. In criminal cases, the burden of proof on the accused is based on the facts before the court which indicates that he has committed the crime as adduced. In compliance with the Burden of Evidence that governs the case, an accused can only be presumed guilty based on the evidence that the complainant has submitted to trial.


  1. AIR 1996 SC 755
  2. Section 101, The Indian Evidence, 1872.
  3. AIR 1989 Ker, 163
  4. AIR 1996 SC755
  5. Section 102, The Indian Evidence Act, 1872.
  6. AIR 1993 J. &K. 14.
  7. AIR1995 Ori 239
  8. Section 103, The Indian Evidence Act, 1872.
  9. Section 104, The Indian Evidence Act, 1872.
  10. Section 105, The Indian Evidence Act, 1872.
  11. In Pratap v. State of U.P., 1975
  12. AIR 1990 SC 1459
  13. Section 106, The Indian Evidence Act, 1872.
  14. Eshwarai v. Karnataka, 1994 SCC
  15. AIR2001 SC 1436.
  16. Sections of the Indian Evidence Act, 1872.
  17. AIR 1997 Raj 230.
  18. Section 111, The Indian Evidence Act, 1872.
  19. Section 111A, the Indian Evidence Act, 1872.
  20. Section 112, The Indian Evidence Act, 1872.
  21. Batuk Lal: “The law of Evidence”, (22nd edition, 2018), Central Law Agency pg No. 536
  22. Section 113, The Indian Evidence Act, 1872.
  23. Sections of the Indian Evidence Act, 1872.
  24. Satish Shetty v. state of Karnataka, AIR 2016 SC 2689
  25. Ramallah v. State of Karnataka, AIR 2014 SC 3388
  26. Section 114, The Indian Evidence Act, 1872.
  27. The Criminal (Amendment) Act, 2013.


  1. Batuk Lal: “The law of Evidence”, (22nd edition, 2018), Central Law Agency.
  2. Avtar Singh: “Principles of Law of Evidence”, (23th edition, 2018), Central Law Publications, Allahabad.
This blog is written by Akriti Sharma, Banasthali University

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