In a suit or proceeding the evidence has to be brought to prove certain things to achieve the object. Parties have to bring their evidence to prove the things if there is no such evidence then opinion party wins the case. So, proving certain facts is needed to achieve the object and burden of proof on the parties. In the suit or proceeding, if any party has enough evidence to prove the certain facts in his or her favors that party wins the case.  In the Indian Evidence Act 1872, Chapter VII deals with the “Of The Burden Of Proof”. In the evidence act, there are certain Sections on criminal proceedings that have an exception on the burden of proof. The burden of Proof is the risk of the party, who wants to achieve the merit of the case. In Kartick Prasad Gorai v. Neami Prasad Gorai, AIR 1998 Cal 278, the court was given two different meaning on the expression “Burden Of Proof”. One side it means, in a case if either of the party wants to get the judgment in his favor that party has to produce the evidence to prove the facts in his or her favor. Another side means, that on contested issues one of the two contending parties has to introduce evidence.


The meaning of “Burden Of Proof” is to make an obligation to prove certain facts otherwise it may go against him/her. There are two kinds of burden of proof. They are respectively – (i) “The peculiar duty of him who has the risk of any given proposition on which parties are at issue, – who will lose the case if he does not make this proportion out when all has been said and done”. (ii) “The duty of going forward in argument or in producing evidence, whether at the beginning of a case, or any later moment throughout the trial and discussion”[1].


According to sec.102 of the Evidence Act, Burden of proof lies both the parties. In the suit or criminal cases, onus keeps on shifting. If no evidence is produced than which party will fail, on that party the burden of proof lies, otherwise that party will not get the judgment on his or her favor. The concept “Burden of Proof” is two kinds, one burden of proof on pleading and another is the burden of adducing evidence. The burden of proof is not shifted but the Onus of proof keeps on shifting on both sides of parties. In a criminal trial burden of proof always on the prosecution to prove the guilt of the accused beyond a reasonable doubt. The accused may bring his case within the general exception of IPC and accused need not to be proved beyond a reasonable doubt. In the civil case, the initial burden of producing a prima facie in his favor is on the plaintiff. When he gives proper evidence that will support the case as a prima facie case then the onus shifts on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. So, in the course of produce the evidence the onus shifts from one side to another[2].  The burden of proof always on the claimant party who wants to judgment on his or her favor but the onus of proof is shifting on one party to another party when one party gives the evidence successfully to give the judgment on his or her favor.


According to the section 103 of the Evidence Act, it deals that if either of the party is admitting any specific fact that helps the party to make the judgment in his or her favor, then the burden of proof that specific fact on that party. In the criminal case, if prosecution admits that the accused at the time of committing of the crime was present in the spot than the burden of proof on the prosecution, or if in the case defendant is stated that he was not present in the crime spot because he was with his friends than that particulars fact have to prove by the defendant.  According to Section 104, the adducing of evidence not only applies to the expressing allegation but also applies to creation related evidence which helps to prove the allegation. In the case to prove the Dying declaration the party first has to prove that the person has died. And in another case also if the party desires to give secondary evidence that the party has to first prove that the primary evidence is lost than the party will able to produce the secondary evidence.


According to Section 105 of the Indian Evidence Act, in the criminal cases only there is a certain exception on the burden of proof. In a criminal case, the prosecution has to prove the guilt of the accused beyond a reasonable doubt. After that defendant has to prove that the offense committed by him or her comes within the general exception of IPC and has to produce proper evidence to disprove her or his guilt, otherwise the court will think the accused is committed the offense. So, the burden of proof to come under general exception is on the accused. This is self-defense, which can be taken by the accused, and the accused need not be proved the things beyond a reasonable doubt. As an example, if the accused is insane at the time of occurrence of crime; or the accused did the crime in the grave and sudden provocation; or the accused unsound mind & intoxicated than the burden of proof on the accused to produce enough evidence to be declared as an acquittal. An accused is clearly entitled to claim an acquittal if on the evidence for the persecution it is shown that he has committed no offense.

Section 106 is also an exception of the general rule of the evidence, it deals with that if any person has the knowledge in any particular fact than the burden of proof on that person who has the knowledge on it.  Generally speaking in a case of negligence, the burden of proof of negligence on the part of the defendant lies on the plaintiff. But in cases where the facts speak for themselves showing negligence of the defendants, the burden lies on the defendant to prove that he was not negligent. Section 106 is based on the principle res ipsa loquitor which means “the thing speaks for itself.” In personal injury law, the concept of res ipsa loquitur (or just “res ipsa” for short) operates as an evidentiary rule that allows plaintiffs to work out a rebuttable presumption of negligence on the neighborhood of the defendant through the use of indirect evidence. this suggests that while plaintiffs typically got to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant’s burden to prove he or she wasn’t negligent. In the case of Syad Akbar v. State Of Karnataka (1979 AIR 1848) the appellant, who was a driver of a bus, was driving the vehicle by a road that ran through a village. On either side of the road, there were deep ditches. A mother who was going from the village on the right was being followed at some distance by her four-year of an old daughter (the deceased). Before crossing the road the mother stopped on the left side and remonstrated with the girl to go home. Then crossing the road at that point the mother descended on the right side of the road and went out of sight. In the meantime, the bus had slowed down because a few feet away it had to cross a narrow bridge. The child, which by then reached the left side of the road, seemed to be in two minds whether to cross the road or go back. She, however, dashed across the road with a suddenness. The driver blew the horn and to save the child from an accident swerved the vehicle to the right. But the child came under the left front wheel and was crushed to death. In the trial evidence of the eye-witnesses treated as hostile by the prosecution. It was difficult to judge with any degree of accuracy whether the child would go back or dash forward. The question for the driver at that point in time was whether to swerve to the left or to the right. The road was narrow and both sides of the roads were deep ditches. To swerve to the extreme left would have meant taking as much risk of rolling the bus down the ditch as swerving it to the extreme right. He could not, without incurring far greater risk to many in the bus, take the vehicle off-course further to the right beyond the point he did. Had the bus gone further than it did, towards the right, it would have met with a much bigger disaster. His calculations went wrong and he failed in his attempt to avoid the accident. Clearly, therefore, the accident occurred not on account of his negligence but due to an error of judgment in the circumstances of the situation. In the circumstances, the prosecution had failed to prove beyond a reasonable doubt that the appellant had caused the death of the child by negligent or rash driving.

The burden of Proof on Certain facts:

  • Under Section 107 of the Evidence Act that if a person is proved to have been living within 30 years it shall be presumed that he is alive and the burden of proving he is dead lies on that person who affirms that he is dead.
  • Under Section 108 of the Evidence Act, lays down that when it is proved that a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive the burden of proving that he is living is shifted to the person who affirms it.
  • Under Section 109 of the Evidence Act deals with that once it is shown that a person stands in a relationship of partners of a firm, landlord and tenant, or principal and agent, it shall be presumed that they continue in such relationship unless it is proved that they had ceased to stand.
  • Section 110 of Evidence Act deals with that when the question is whether any person is the owner of any property and when it is shown that one person is in possession of it, it shall be presumed that the person in possession of the property is the owner of it and the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
  • Section 111 of the Evidence act deals that in the ordinary course of life fairness and honesty are presumed in respect of any transaction; and if a person wants to prove that any transaction has been created dishonestly and with bad faith, it is for him to prove it to be so.


The burden of proof is the main part of the case because according to the production of the evidence justice is depends. Achieving the just and fair Justice, the requirement is to produce enough evidence because one depends on the evidence the court gives the judgment. From the above discussion, the Burden of proof not shift but the onus is a shift to prove certain facts. Using of general exception is helps to give proper justice to accuse otherwise there will be no right to live for the accused. If one person has the right to life than for protecting his or her life he may commit the offense but that must befall under the general exception and the burden of proof is on that person who uses the general exception for his or her self-defense.

[1] H. K. Saharay, M. S. Saharay, Law of Evidence, 560, Eastern Law House 2008

[2] Batuk Lal, The Law of Evidence, 495, Central Law Agency 2015

Author: Sonali Gorai,
Adamas University/ 3rd Year/ Perusing BALLB(H)

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