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.
Illustration
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
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