Burden of proof under Indian Evidence Act

Burden of proof: Under Indian Evidence Act, 1872 (sections, case law) – Agam Ravinder Lamba

Burden of proof: Under Indian Evidence Act, 1872 with related sections and Case Laws

The burden of proof is a legal test that decides whether a legal claim is legitimate or invalid based on the evidence presented.

The burden of proof is often placed on one side in a claim, and in many circumstances, the person filing the claim is the one who must demonstrate the validity of the claim and bear the burden of proof.

The amount of evidence necessary for a claim to be successful is determined by the burden of proof, which has three stages. These terms include “preponderance of the evidence,” “clear and convincing,” and “beyond a reasonable doubt.”

Preponderance of the Evidence

In the majority of civil disputes, the plaintiff must persuade the court or jury that the defendant bears a greater than 50% share of the blame for their pain and suffering. Plaintiffs frequently file lawsuits against defendants to get monetary damages for losses like medical expenses, lost wages, or property damage.

Clear and Convincing

A plaintiff may sue for something other than monetary compensation. Clear and convincing evidence necessitates a higher degree of proof than the preponderance of the evidence standard and may be used in accusations of job discrimination.

Beyond a Reasonable Doubt

Beyond a reasonable doubt establishes that no other reasonable explanation exists outside the evidence submitted to the court. This is the highest legal level of proof and is commonly employed in criminal cases, such as murder trials.

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Burden of Proof Under Indian Evidence Act

Burden of proof is covered under sections 101 to sections 114 of the Indian Evidence Act, 1872.

Section 101

This section is concerned with the burden of proof for the entire case. It states that whomever is a party to a case must show the presence of any facts asserted by the party in order for any court to render a decision on any legal right or responsibility based on the existence of such facts.

Example: X sues Y, Z’s widow, claiming ownership of all property left by Z as his adopted son. Y, the widow, contests the adoption fact. In this case, A wants the court to rule that he is the owner of the property left by Z because he was adopted by Z. He must therefore demonstrate his adoption by Z.

Section 102

This section deals with the burden of proof during a suit or proceeding that supports the evidence of the entire case, with reference to section 101.

Example: A desires a court to give judgement that B has committed murder and punish him under section 302 of the Indian Penal Code, 1860. A claims that B killed C, who was A’s brother, as punishment for this.

Now, A has the burden of proving that B killed C under section 101 of the Indian Evidence Act, and he must do so. Moving further and applying section 102, the burden is now shifted on B, and if no adducing evidence were given by B, B would be punished for the murder of C. Therefore, the burden of proof is on B.

Section 103

It says that the burden of proof as to any specific fact is with the person who asks the court to believe in its existence, unless any law provides that the onus of proof remains with the individual in question.

Section 104

It states that the burden of proof is on the individual providing the evidence to demonstrate the facts that must be demonstrated in order for the evidence to be admissible. The burden of proof falls on the individual who intends to give the evidence when it comes to establishing facts in order to make evidence of another fact acceptable.

Section 105

According to any broad exceptions granted by the Indian Penal Code or any other specific legislation, the burden of proof falls on the accused when they are charged with a crime to prove the events that gave birth to the accusation.

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This Section limits the prosecution’s obligation to proving an accused person’s guilt; beyond that, the burden of proof shifts to the accused, who has the advantage of relying on broad exceptions to the IPC or Criminal Procedure Code.

So, in accordance with Section 105 of the Act, it is the accused’s responsibility to be aware of every occurrence that has taken place. This clause is also known as the reverse onus clause.

Section 106

This clears the concept of a fair trial by making it easy to demonstrate all feasible facts and removing the burden of proving anything impossible or in the accused’s favor. It also enables the accused to contest the assumption of facts based on the course of events. However, it has been noticed that the prosecution takes advantage of this article and strives to avoid his responsibilities in order to demonstrate the legal burden.

Section 107

It refers to the “burden of proving the death of a person known to have been alive within the previous thirty years. s”According to this clause, when there is a question as to whether a man is alive or dead and it can be demonstrated that he was alive within a 30-year window, the burden of establishing that he is dead falls on the person who asserts it. “A presumption is permitted to be raised under this rule as to the continuation of the life of such a person if it is demonstrated or proven that a man was alive during a period of thirty years.

Section 108

It relates to the burden of showing that a person who has not been heard from in seven years is still alive.” According to this section, if it is disputed whether a man is alive or dead and it can be demonstrated that those who would ordinarily have heard of him had he been alive did not do so for a period of seven years, the duty of demonstrating that the man is alive shifts to the person making the affirmation.

Section 109

It relates to “Burden of proof as to relationship in the case of partners, landlord, and tenant, principal and agent”.

According to this clause, the law presumes that any relationship or condition of affairs between individuals who have acted as partners, landlords and tenants, or principals and agents will continue to exist unless the contrary is established.

When it is proven that people were in the aforementioned relationships—partners in a partnership business, landlord and tenant, or principal and agent—and that they have been functioning in those capacities—a presumption may be made that they are still in those relationships.

The burden of demonstrating that they do not remain in such a relationship or end it in order to refute this presumption is on that party.

Section 110

It speaks about about, “Burden of proof as to ownership”. When a person is demonstrated to be in possession of any property, Section 110 allows him to raise a presumption that he is the owner of such property, and the burden of demonstrating that he is not the owner falls on the person who asserts that he is not the owner.

The concept underlying this clause is that possession is prima facie evidence of title, and anyone wishing to depose the possessor must first prove the authority to do so. The idea does not apply if possession is obtained through force or deception.

The term “possession” in this clause must be construed as an actual current possession rather than a legal one.

A presumption can be raised under this clause in both circumstances of moveable and immovable property, and it can also be asserted by the government. However, it will not apply if there is a legislative assumption of government ownership.

Section 111

It exhibits “Proof of Good Faith in Transactions”. This section states that where a question as to the good faith of a transaction between the parties arises and one of the parties stands to the other in a position of active confidence, the burden of demonstrating the good faith of the transaction must be on that party who is in a position of active confidence.

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When two parties enter into a transaction while on a mutually beneficial relationship, it is presumed that both parties have good faith; however, it is their obligation to show that both parties are acting in good faith when they are not on an equal footing and one has a position of active confidence over the other, it is up to them to show that both sides are acting in good faith.

Illustration: When a doctor purchases property from a patient, the burden of showing good faith in the transaction falls on the doctor who is in the position of active confidence. Similarly, when a transaction is entered into between a spiritual Guru and a disciple, the duty of proving the transaction’s good faith falls on the spiritual Guru because he occupies the position of active confidence.

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Presumption to certain offences under {Section 111-A}

When a person is charged with an offense under these provisions:

(a) Section 121 (waging or attempting to wage war or aiding in the waging of war against the Government of India),

(b) Section 121-A (Conspiracy to commit an offense of waging or aiding in the waging of war against the Government of India),

(c) Section 122 (Collecting arms, ammunition, and other items with the intent to wage war against the Government of India)) and

(d) Section 123 (Concealing with Intent to Facilitate Design to Wage War), in any:

  • Area designated as a disturbed area under any current statute providing for the repression of disturbance and the restoration and maintenance of Public Order; or
  • Area in which there has been extensive disturbance of public peace for more than one month, and when it is demonstrated that such person was at a location in such area at a time when firearms or explosives were used at or from that location to attack or resist members of any armed forces or forces charged with the maintenance of public order acting in the discharge of their duties, the court shall presume that such person had committed such offence, unless contrary is shown.

Section 112

It includes “BIRTH DURING MARRIAGE, CONCLUSIVE PROOF OF LEGITIMACY”. The rule has the effect of conclusively assuming that each child born to married parents is their kid. The same assumption applies when a marriage is dissolved and a kid is born within 280 days of the divorce while the mother is still single. The following are necessary elements for the presumption to exist:

1. The kid must have been born during the continuation of a legitimate marriage, or within 280 days of the marriage’s dissolution if the marriage was dissolved, with the mother being unmarried.

2. The spouses should have had access to each other at all times when the kid could have been conceived.

Section 113-A

It’s about “PRESUMPTION AS TO ABETMENT OF SUICIDE BY A MARRIED WOMAN”. According to this clause, if a woman commits suicide within seven years of her marriage, the court may conclude that the suicide was aided or that she was exposed to Cruelty by her husband or any of her husband’s relatives. The husband or his family must provide evidence in order to overcome the presumption.

Section 113

It refers to “PRESUMPTION AS TO DOWRY DEATH”. When the question of whether a person caused the dowry death of a woman arises, if it is demonstrated that such person subjected such lady to cruelty or harassment for or in connection with the dowry demand before her death, the court shall raise a death penalty. \

An adverse presumption that the accused was responsible for the dowry death in question may be raised against him if the court determines that there are circumstances that demonstrate the victim of the dowry death was subjected to cruelty or harassment by the accused before her marriage.

The phrase “shall presume” in Section 113B requires the court to raise the presumption that the accused is to blame for the dowry death. It is strongly emphasized that the onus of proof rests on the accused to disprove the presumption mentioned in the Section and to demonstrate that there are no circumstances supporting the claim that the alleged victim of dowry death passed away.

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Section 114-A

It includes “PRESUMPTION AS TO ABSENCE OF CONSENT IN CERTAIN PROSECUTION FOR RAPE”. The new rule has the effect that if a court is asked if an intercourse between a man and a woman was with or without consent, and the woman states in court that it was against her consent, the court will conclude that there was no consent. The onus of demonstrating consent is now placed on the accused. He is guilty if he cannot demonstrate that there was consent.

Some Case Law on Burden of proof

Wasudeo Ramachandra Kaidalwar v. State (Maharashtra), (1981)


The Supreme Court observed that prosecution cannot take the benefit of evidence of the accused. They have to stand on their own legs. The prosecution must prove the accused’s guilt using its own evidence. The burden of proof is a question of law, the court further declared. It is up to the individual making the case to support the unchanging facts. Whereas the onus of proof is a matter of adducing evidence, and it keeps on shifting. (This case comes under the section 102 of the Indian evidence act, 1872.)

Kamini Sahuani v. Purna Chandra Sahoo, 1986


A married woman who had been abused by her in-laws and ejected from her marital home filed a claim to get her jewelry and other belongings back. Her in-laws argued that she had already taken these items away.


The court held that there cannot be any presumption that she has taken away any of her articles, and the burden of proof would be upon the in-laws to prove that she has taken away her jewelry and other articles, also observed and states that there cannot be any presumption that she has taken away any of her articles, and the burden of proof would be upon the in-laws to prove that she has taken away her jewelry and other articles.

Bhikari v. State of U.P, 1965


The accused-appellant was accused of murder. He cited Section 84 of the Indian Penal Code’s General Exception of Insanity as his justification.


It was ruled by the honorable court that the burden of proof is on the appellant that at the relevant time he was incapable of knowing the nature of the act or that what he was doing was contrary to law.

Ram Gulab Chaudhury v. State of Bihar, 2001


In this case, no corpse was located, but an eyewitness testified that the accused killed the victim before removing the body. The accused did not explain the disappearance of the deceased body.


The court observed that it could condemn the accused individuals by drawing the assumption that the accused people had a motive to remove the dead body, and that reason was that they caused the death.


As can be seen, the Evidence Act of 1872 is a well-codified statute that addresses the burden of proof comprehensively.

On the other hand, the developments in electronic evidence and the burden of proof today call for more clarification, especially in terms of judicial interpretation.

In many situations, the criminal justice system in our country has failed to secure a conviction. According to experts, the traditional approach of courts to the idea of presumption of innocence and the requirement to prove mental capacity is to fault.

As a result, it was decided that trends that contravene any regulation must be reversed. However, it is vital to ensure that these developments do not jeopardize the Judges’ credibility and image as objective officials.

About Author

Agam Ravinder Lamba is a 3rd year law student pursuing BBA LLB(H) from Amity University Noida, India.

Agam Ravinder Lamba

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