Indian Evidence Act, Section 101 : Burden of Proof

Define Burden of Proof? What are general principal of Burden of Proof in civil and criminal cases?

Every judicial proceeding has for its purpose to ascertain some right or liability. These rights and liabilities arise out of facts which must be proved to satisfaction of the court. Section 101 to 111 lays down provisions regarding who is to lead evidence and prove the case. These rules are called rules relating to "Burden of Proof"  or "Onus of Proof "      

Burden of Proof defines in under section of 101 of Indian Evidence Act 1872, the meaning  Of “Burden of Proof” is the Liability to prove the fact or obligation to prove a fact, in Hindi called as “सबूतों का भार” According to this section when a person wants the judgement from any court dependent on existence of fact, person who wants such, burden of proof lies on him only , The  person whom burden of proof lies, he has to prove beyond all reasonable doubt if he fails to do so on then case will get dismissed.  It means “Burden of proof” never shifts, he has to be proved at any cost beyond reasonable doubt else case will get dismissed and Court will pass judgement against you.

Any facts which sought to be proved  is called as factum probandam and someone has burden to prove such facts, but question is who has to prove.

So as per section 101, in criminal proceeding, burden of proof lies on prosecution, State is  always a party in prosecution side because in criminal case crime is always against state. So we can also say that Burden of proof lies upon state. 

As per Section 101 of Indian Evidence Act,  Whoever desires   any Court  to give judgment  as to any legal right or liability dependent on the existence of facts  which he asserts, must prove that those facts exist. if a person is bound to prove to the existence of any fact, it is called as the burden of proof lies on said person.

Illustration of Burden of Proof under Section 101

A desires any court to give judgement that B shall be punished for a crime which A says B has committed so preliminary A has to prove beyond all reasonable doubt that B has committed   

A prosecutes B for theft, A said to the court that B has admitted such theft  to C, now A has burden to proof that B has admitted the theft to C

Generally burden of Proof lies on Prosecution,  Question is that why Prosecution has burden only, the answer is that this is general principle of law that an accused is still innocent until and Unless it gets prove as guilty,  that’s why burden of Proof lies on Prosecution only. In other way we can also say that positive facts can be easily proved compare to negative facts, Prosecution has to present evidence related to his complaint before Hon’ble Court, it is liability of prosecution to prove what he alleged, if he fails to do so then case will be dismissed and Hon’ble court will acquit to accused on benefit of doubt  but  when prosecution proves and Hon’ble Court gets satisfy preliminary then burden of prove shifts to accused,  

Now accused will have to refute  those facts whatever presented by prosecution  prosecution  presen, once burden of proof shifts to defence it is called “ Onus” . The meaning of Onus is   same as “Burden of Proof”. Only difference is Onus always shifts from Prosecution to defence or petitioner to respondent  and vice versa based on circumstances but Burden of Proof never shifts.

Onus is defined in Section 102 of Indian evidence act. According this section when a court in any criminal or civil proceeding asks to both parties to present their evidence if none have given then case will get dismissed and one of party will lose this case, the party who will lose this case, burden of proof or burden to present evidence will lie upon him only if he does not want to lose so. Once he proves at his end then burden shifts to defence or respondent so this shifting is called Onus. It means onus shifts from only Party to another.


Section 102 Onus of Proof

A file a sues upon B to recover damages for breach of contract  and if none have given evidence  then A will lose his own case, Preliminary burden lies upon A to prove that there was a contract between him, and B has beach the contract. If B accepts the contract but says that his consent was taken by fraud, Now burden shifts upon B, He has to prove said contract was executed by fraud and his consent,

Generally burden of Proof lies always on prosecution but some of exceptional cases burden of proof lies on accused directly . This is called as statutory reversal of burden of proof. For an example

Case of IPC 498A related cruelty caused for dowry demand, IPC 376  Sexual Assault cases, 304 B Dowry death  in these cases Burden of proof lies on  Accused directly, now defence  has to prove that he did not  do as  the prosecution alleged. 

Case Law

Vijay Singh vs State of UP AIR 1990 SC 1959

If the accused succeeds in creating reasonable doubt or shows a preponderance of probability in favour of plea, the the obligation on his part gets discharged and he would be entitled to be acquitted  

Ranchodbhai Somabahi VS Babubhai , Gujrat AIR 1982 308

In this case, Hon’ble Court held that there is an essential the distinction between burden of Proof and Onus of proof.  Burden of Proof lies on the person who has to prove a fact and it never shifts from person to another, but the onus of proof shifts always from one person to another. Such types of shifting of onus is in continues nature in the assessment of evidence

Robins VS National Trust Co. (1927) AC 505

Onus is usually on the one who asserts a proposition or a fact which isn't self-evident. to claim that a person who is alive was born requires no proof. The onus isn't on the person making assertion because it's self-evident that he had been born. But to say that he was born on certain date, if the date is material requires proof the onus is on the person making the assertion 

Objective Question

 1. Burden of Introducing evidence under section 102 of the Indian Evidence Act 

     a) Shifts at times

     b) Never shifts

     c) Constantly shifts

     d) None of these                           UP PCS(J) 2003


2. The fact sought to be proved is called 

     a) Factum probana

     b) Factum probandam

     c) Lex fori

     d) Lex Loci                                       UK PCS(J) 2014


3. Which one of the following is correctly matched under the Indian Evidence Act?

     a) Burden of Proof-Section 101 

     b) Dowry Death-Section 122              

     c) Dumb witness-Section 107 

     d) Accomplice-Section 119                            UK PCS(J) 2014


4. The burden of proof generally lies on 

     a) prosecution     

     b) accused

     c) the discretion of the court 

     d) on both                                                    UK PCS(J) 2008


5. On whom burden of proof lies in criminal case?

     a) accused

     b) Prosecution

     c) Dependent on the discretion of the court

     d) Dependent on the facts and circumstances of the case      RAJ. JLO 2013 


6. Under this section 102 of the Evidence Act burden of proof

     a) Seldom changes

     b) Never changes

     c) Changes continuously 

     d) None of these                                          MP civil Judge 2012     


7. A kills B. A is charged for murder. In this case burden of proof  is

    a) The State

    b) Upon “A”

    c) Upon B's legal representatives 

    d) Both (a) and (c)                                       U.P. APO 2011  


8. 'A' prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C 

     a) 'A' must prove the admission

     b) 'C' must prove the admission

     c) 'A' & 'C' must prove the admission

     d)  All of these                                            MP Civil Judge 2006


9. As the trial proceeds burden of proof under Section 101 of Indian Evidence Act

     a) Goes on shift

     b) May shift

     c) Never shifts 

     d) Both may shift and never shifts                MP Civil Judge 2018


10. In criminal proceedings the burden of proof lies

      a) on persecution to prove the guilt of accused beyond reasonable doubt 

      b) on accused to prove his innocence

      c) on both the parties

      d) depends on the facts of each case           MP civil judge 2006