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THEORY:

Burden of Proof[sections 101-113

‘Burden of proof’ may be defined as the obligation to offer evidence that the court or jury could reasonably believe, in support of a contention, failing which the case will be lost. Burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case.

The pleadings predominantly contain the facts of the case. Pleadings of each party contain the relevant party’s version of the facts of the case. Thus, the plaint contains plaintiff’s version of the facts of the case. This is called the plaintiff’s case Similarly, written statement contains the defendant’s version of the case. This is called defendant’s case.

In majority of cases, cases of both sides will not be entirely different. There may be facts pleaded by one party and admitted by the other party. These facts are called admitted facts. In respect of some other facts, the parties may differ. Facts pleaded by one party may be denied by the opposite party. These facts are called disputed facts. The function of the Court is to find out which of the two versions is true. To discharge this function, Court needs evidence.

Under the adversarial procedure followed by the Indian Courts, evidence has to be presented by the parties to the Court. By presenting the evidence, each party attempts to prove its case and disprove the case of the opposite party.

Both the parties need not prove every fact or disprove every fact. Only one party has to prove a fact. The other party will have to disprove the fact if the first party is able to p r o v e the fact. But it may have to prove some other fact which the first party will have to disprove if former is able to prove it.

This requirement of proving or disproving a fact is called burden of proof. The requirement of proving a fact is called the initial burden of proof and when the party on whom the initial burden lies is able to prove the fact and therefore when the opposite party is required to disprove the fact we say that the burden of proof has shifted – is called onus of proof.

Burden of Proof and Onus of Proof

“burden of proof” and “onus of proof”, though literal meaning of these expressions may be the same. Yet they differ

The ‘Burden of Proof’ is the burden to prove the main contention of party requesting the action of the court, while the ‘Onus of Proof’ is the burden to produce actual evidence.

The Burden of Proof is constant and is always upon the claimant but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case.

Thus, burden of proof indicates the initial burden of proof. If the party who has the burden of proof of a fact proves that fact, the onus of disproving the same shifts on the other side. This is a continuous process.

Rules of Burden of Proof [Sections 101-106]

Section 101 explains the concept of Burden of Proof which states that when a person is bound to prove the existence of a fact, the burden to provide evidence for the same lies upon him. Burden of proof is not defined in the Act. But it is based on the principle that in criminal cases the burden of proving the charges lies on the prosecution not on the accused. Evidence Act lays down some principle of burden of proof of general nature.

The concept of Burden of Proof is based on two concepts:

Burden of Proof (onus probandi)

Onus of Proof (factum probandum)

Burden of proof is constant always remains on one person. Whereas the onus of proof is like pendulum in the clock shifts from one person to another toll the final infere