Law of Evidencefinal.docx

8/17/2019 Law of Evidencefinal.docx

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BURDEN OF PROOF

RESEARCH METHODLOGY

RELEVANCE OF THE TOPIC

This topic is very much relevant to our syllabus an use acaemically because buren o! proo! is an inte"ral

part in both civil an criminal cases urin" the proceein"s because it lay buren on the parties to proo! a case

in hi"h probabilities in civil cases an beyon reasonable oubt in criminal cases# $uren o! proo! provies !or

hi"h percenta"e o! relevancy %hich coul be use in e&ams per se because o! its hi"h usa"e in the court o! la%

to aminister 'ustice#

RE(EARCH )*E(TION

• First +uestion is to clearly lay o%n the meanin" o! $uren o! proo! provie in cases,

•

(econ +uestion is to !in a clear istinction bet%een buren o! proo! an onus o! proo! • Thir +uestion is to analy-e shi!tin" o! buren in case o! onus o! proo!

• Fourth +uestion is to compare the buren o! proo! in Inia %ith *(A an *.

LI/ITATION( OF RE(EARCHThe research has been limite to content o! $uren o! proo! !rom section 0123014 %here 010 has been

e&plaine in "eneral uner chapter 0# The iea o! 5eepin" research limite to the above mentione section %as

to "o in epth o! speci!ic section rather than e&plainin" all the buren o! proo! sections in "enera %hich

%ouln6t have provie a clear analysis o! the above mentione section %ith substantial cases#

O$7ECTIVE( OF (T*89

• To have a enhance 5no%le"e about the researche topic

• To 5no% the use o! these sections in every possible circumstances an situations

• To have a istinctive vie% about the buren o! proo! in i!!erent countries

CHAPTER 1-INTRODUCTION

EVOL*TION:

The early history o! la% o! evience in Inia can be trace bac5 in 8harma (hastra as %ell as in /uslim an

En"lish systems o! la%# It %as al%ays reco"ni-e by 8harma (hastra that the purpose o! any trial is the esire

to ascertain truth# The early la%ma5ers reco"ni-e that trial o!ten involve suppression o! !acts an appreciation

o! !alsehoo# There!ore; La% o! Evience too5 every possible precaution; consistent %ith times to secure the

iscovery o! truth# The Inian la% o! evience ha attaine by the time o! the ancient 8harma (hastra; a

consierable e"ree o! per!ection an embein" many moern concepts#


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The moern la% o! evience; li5e many branches o! our le"al system; o%es its inception to En"lish Common

La%# Till the be"innin" o! the 0? a!ter thirty

years o! his eath# Alon" %ith the re!orms in En"lish La%; in Inia too; a!ter 0


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0D The buren o! proo! as a matter o! la% an pleain"3the buren; as it has been calle o! establishin" a

case# This buren rests upon the party; %hether plainti!! or e!enant; %ho substantially asserts the

a!!irmative o! the issue# It is !i&e at the be"innin" o! the trial by the state o! the pleain"s; or their

e+uivalent an it is settle as a +uestion o! la%; remainin" unchan"e uner any circumstance %hatever#

This rule is emboie uner (ection 010#

2D The buren o! proo! as a matter o! aucin" evience# The buren o! proo! in this sense is al%ays

unstable an may shi!t constantly; throu"hout the trial; accorin" as one scale o! evience or the other

preponerates#

Accorin" to Thayer; the phrase $uren o! proo! is use in three %ays:3

iDTo inicate the uty o! brin"in" !or%ar ar"ument or evience in support o! a proposition at the be"innin"

or later#

iiDTo ma5e that o! establishin" a proposition as a"ainst all counter ar"ument or evience

iiiDAn iniscriminate use in %hich it may mean either or both o! the others#

CHAPTER 2-LEGAL ANALYSIS

Section 102- On whom burden of proof lies- The burden of proof in a suit or proceeding lies on that person

who would fail if no evidence at all were given on either side

Principal and Scp!

This section emboies a test !or ascertainin" on %hich sie the buren o! proo! lies# It means that %hen the

buren o! proo! lies on a party; that party must !ail i! he oes not ischar"e the buren by "ivin" evience# 0 In

orer to etermine on %hich t%o liti"ants the buren o! proo! lies; the !ollo%in" test %as su""este by Alerson

$; in Amos v. Hughes 0; 0/ which party would be successful if no evidence at all were given.”

The best test !or ascertainin" on %hom the buren o! proo! lies are to consier !irst %hich party %oul succee

i! no evience %ere "iven on either sieG an seconly; %hat %oul be the e!!ect o! stri5in" out o! the recor the

alle"ation to be prove# The onus lies on %hichever party %oul !ail; i! either o! these steps %ere pursue# 2 For

instance; i! in an action brou"ht by a lanlor a"ainst his tenant; the breach o! contract assi"ne be that

1 Radhamohan v. Kamaldhari A 0@? P 2@

2 R.ayala!shivama v. "lection #ribunal-cum $enior civil udge% &ungnur% 211 >D Anh LT 11 APD


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premises %ere not 5ept in repair an this alle"ation is traverse by the statement o! e!ense; the plainti!! must

prove his ne"ative averment# The +uestion as to %hether the buren o! proo! has been ischar"e by a party to

the lis or not %oul epen upon the !acts an circumstances o! the case# I! the !acts are amitte or; i!

other%ise; su!!icient materials have been brou"ht on recor so as to enable a court to arrive at a e!inite

conclusion; it is ile to conten that the party on %hom the buren o! proo! lay %oul still be liable to prouce

irect evience to establish that the ecease an the in'ure passen"ers %ere "ratuitous passen"ers#

@

The buren rests upon the party %ho %oul !ail i! no evience at all; no more evience; as the case may be;

%ere auce by either sie# In other %ors; it rests; be!ore any evience %hatever is "iven; upon the party; %ho

has the buren o! proo! on the pleain"s; i#e# %ho asserts the a!!irmative o! the issue an it rests; a!ter evience

is "one into; upon the party a"ainst %hom; at the time the +uestion arises; 'u"ment %oul be "iven i! no !urther

evience %as auce by either sie# Initial buren o! proo! is al%ays on plainti!! %ho asserts certain !acts#

$uren o! proo! as to any particular !act lies on that person; %ho %ishes the court to believe in its e&istence;

unless it is provie by any la% that proo! o! that !act shall lie on any particular person#

The +uestion o! onus o! proo! has "reater !orce in an ori"inal trial; %here the +uestion is %hich party is to be"in

$ut %here the trial has ene; an %here the plainti!! has let in evience on his o%n behal! the contention that

the onus %as %ron"ly thro%n loses all its !orce in an appeal# The +uestion o! onus becomes important an

material in appeal %here only %here the evience is evenly balance an con!lictin"; %here that is the case that

party must !ail; on %hom the onus lay in the !irst instance#

B"rd!n # pr# and On"$ pr%andi

The strict meanin" o! the term onus probani; is this that i! no evience is "iven by the party on %hom the

buren is cast; the issue must be !oun a"ainst him# The terms buren o! proo! an onus probani are

sometimes con!use# Jhere issues have been !rame an the preliminary e&amination o! the parties has ta5en

place the case rests at a certain point at %hich i! no !urther evience is le one party has to lose# On that party is

onus probani sometimes calle ri"ht to be"in# Jhere; ho%ever; all evience on both sies has been

recore; a secon state is reache an this is %here the point o! vie% o! the 'u"e comes in an it is necessary

to !in %here is the buren o! proo!# To etermine this it is necessary to ascertain %ith precision upon %hat

proposition o! !act or la% the parties %ere at variance# >

3 'ational Insurance (o )td v. Rattani 211D 2 (CC 4> 4D

4 &ormanan v. #hiagara*an 2100 AIR CC 0 /aD

5 &e v. (hettyar +irm% 0> IC 0@: A 0@@ R 200


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Orer 0


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Jhere the accuse is alle"e to be !oun in possession o! the stolen property an misappropriate it; onus is on

the prosecution to prove that the property %ere stolen property an %ere misappropriate by the accuse#

The buren o! establishin" the plea o! sel!3e!ense is on the accuse but it is not as onerous as the one that lies

on the prosecution# Jhile the prosecution is re+uire to prove its case beyon reasonable oubt; the accuse

nee not establish the plea o! sel!3e!ense to the hilt an may ischar"e the onus by sho%in" preponerance o!

probabilities in !avor o! that plea on the basis o! the material on recor# Even in a case %here the buren is on

the accuse; it is %ell 5no%n; that the prosecution must prove the !ounational !acts#

Section 103- Burden of proof as to particular fact- The burden of proof as to any particular fact lies on that

person who wishes the ourt to believe in its e!istence" unless it is provided by any law that the proof

of that fact shall lie on any particular person#

This section ampli!ies the "eneral rule in s#010 that the buren o! proo! lies on the person %ho asserts the

a!!irmative o! the issue# It lays o%n that i! a person %ishes the court to believe in the e&istence o! a particular !act; the onus o! provin" that !act is on him; unless the buren o! provin" it is cast by any la% on any particular

person# Thus; in a case o! the!t or receivin" stolen property; thou"h the main buren o! proo! is throu"hout on

the prosecution; yet i! the accuse sets up a case that he innocently purchase the property !rom the mar5et or a

particular person; he must prove it# *ner s# o! CrPC the public are boun to "ive in!ormation o! the

commission o! certain o!!ences an the buren o! provin" reasonable e&cuse is by statute cast on the person

%ho !ails to "ive in!ormation# Onus o! provin" la%!ul e&cuse has been cast upon the accuse by various

statutes# Norton e&plains the istinction bet%een s#010 an 01@# $y s#010 the party has to prove the %hole o!

!acts %hich he alle"es; to entitle him to 'u"ment %hen the buren o! proo! is on him# (#01@ provies !or the

proo! o! some one particular !act#

The %hole o! !acts; ho%ever; numerous an complicate; %hich "o to ma5e up the prisoner6s "uilt; must be

prove by the prosecution# I! the prisoner %ishes to prove a particular !act; his alibi; !or instance; he must prove

it# I! the prosecution %ishes to prove the case; not by inepenent oral testimony; but by the isolate !act o! the

prisoner6s amission; or i! he %ishes to thro% that in as an aitional !act; he must prove it# Jhere the plainti!!

entruste to the e!enant launerers certain clothes %hich the e!enant !aile to return to the plainti!! on the

"roun that the clothes %ere estroye in !ire; it %as !or the e!enant to prove that he ha ta5en ue an proper

care o! the "oos but the same %ere estroye by !ire %hich i not ta5e place ue to any ne"li"ence on the part

o! the e!enant#01

9 ,has!ar (handra 'aya! v. $tate of 0rissa 211 CrL7 @ @ $om ?


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In probate cases; the buren o! provin" the testamentary capacity o! the testator; an that he %as o! a soun

min; lies upon the party propounin" the %ill#

In A.$ Rathiman v. A.$. &arnammal 211@D 2 /L7 00 /aD; the Hi"h Court observe:3

5hen the evidence required to be produced is accessible to the plaintiff who see!s to have adverse inference

drawn by reason of non-production of that evidence by the defendants% it is the duty of such plaintiff to produce

the evidence and the failure to do so cannot be got over by inviting the (ourt is attention to draw adverse

inference from the conduct of the defendants who had produced some evidence% but not all the evidence..”

Jhere a %i!e ies %ithin seven years o! marria"e in abnormal circumstances; the Court %oul presume the

eath as 8o%ry eath an the buren lies on the accuse person to prove their innocence#00

Jhere the accuse too5 the plea o! (el!3e!ense; ha sent a letter to the superintenent o! police %ith copy

thereo! to the Inspector o! Police; the receipt o! %hich %as amitte by the Investi"atin" O!!icer; it %as !or the

investi"atin" o!!icer to sho% as to %hen it ha been ispatche#02

S$T%O& 10'- Burden of proving fact to be proved to ma(e evidence admissible) The burden of proving any

fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person

who wishes to give such evidence#

Ill"$'ra'in$,

aD A %ishes to prove a yin" eclaration by $# A must prove $6s eath#

C++!n'$,

Accorin" to this section the amissibility o! one !act epens upon the proo! o! another !act# It is a conition

preceent to prove the particular !act# Illustration aD states that %here a person %ishes to prove a yin"

eclaration; he has to prove that the eclarin" has ie#

The +uestion as to %hether buren o! proo! has been ischar"e by a party or not epens upon the !act an

circumstances o! the case# I! the !acts are amitte or; i! other%ise; su!!icient materials have been brou"ht on

recor so as to enable a court to arrive at a e!inite conclusion; it is ile to conten that the party on %hom

buren o! proo! by %oul still be liable to prouce irect evience to establish that the ecease an the in'ure

passen"ers %ere "ratituous passen"ers#

11 )allu v. $tate of 6.& 211 CrL7 NOCD 011

12


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Section 10*- Burden of proving that case of accused comes within e!ceptions#+,hen a person is accused of

any offence" the burden of proving the e!istence of circumstances bringing the case within any of the

eneral $!ceptions in the %ndian .enal ode" /'* of 10" or within any special e!ception or proviso

contained in any other part of the same ode" or in any law defining the offence" is upon him" and the ourt

shall presume the absence of such circumstances#

A 'uicial analysis o! (#01> be"ins %ith the %atershe ecision o! &arbhoo v. "mperor 78 an ens %ith the

lanmar5 three3'u"e bench ecision in 4i*ayee $ingh v. $tate of 6.p 0thou"h the (upreme Court on a number

o! occasions an the Privy Council in 7ayasena v#Re"inamlO have thro%n li"ht on the ebate; the sin"le most

important in!luence has been Viscount (an5eys ictum in Joolmin"ton v# 8#P#P#l0 (ome o! the propositions

%hich have emer"e out o! the 'uicial opinions on (#01> are as !ollo%s:

0# The buren on the accuse uner (#01> is not so onerous as the buren on the prosecution; an can be

ischar"e by a balance o! probabilities#

2# The buren on the accuse in (#l1> can be ischar"e by creatin" a reasonable oubt as to %hether he can

avail himsel! o! the e&ception o! (#01(#

@# The buren on the accuse in (#l1> cannot be ischar"e by merely creatin" a reasonable oubt as to %hether

he can avail himsel! o! the bene!its o! the e&ception but in some cases an inirect ac+uittal can be secure i! the

evience on recor creates a reasonable oubt as to the essential in"reients o! the o!!ence#

# (#01> oes not envisa"e the En"lish situation %herein the 7ury is le!t in reasonable oubt upon a revie% o! all

the evience even a!ter the e&planation o! the accuse as re"ars# /ore so; the %hole concept o! reasonable

oubt a!ter the e&planation by the accuse; is %ron" because the prosecution; in any event has to prove its case

beyon reasonable oubt at the very !irst instance#

In the li"ht o! the (upreme Court ecisions %hich are la% by virtue o! Article 00 o! the Constitution;

approaches 0 an @ have been isapprove# In &arbhoo9s case; the Full $ench o! the Allahaba Hi"h Court

brou"ht out t%o important propositions#

0D In the case o! sel! e!ense; %here the accuse has !aile to satis!y the court beyon a reasonable oubt; it

still remains open to the accuse to use the evience !or sho%in" a reasonable oubt as to the e&istence o! the

e&ception itsel! an i! a reasonable oubt is create as to the e&istence o! e&ception; then it is su!!icient to

secure an ac+uittal#

13 AIR 00 All 12; hereina!ter re!erre to as Parbhoo s case# #

14 AIR 01 (C 0>;#D; hereina!terre!erre to as Vi'ayee (in"h s case


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2D Reain" (s# an 01> it is clear that the court shall presume the absence o! such circumstances as prove

unless an until they are isprove# Jhere the accuse is unable to ischar"e the buren by e&pressly provin"

the e&istence o! such circumstances or he is unable to ischar"e the buren o! provin" absence o! such

circumstances; the case %oul !all in the cate"ory o! not prove# The court %hile presumin" the absence o!

such circumstances %ill bear in min the "eneral principle o! criminal 'urispruence that the prosecution has to

prove its case beyon reasonable oubt an the bene!it o! every reasonable oubt shoul "o the accuse#

0>

The !irst point in Parbhoos case came up !or revie% in a nine 'u"e bench o! the Allahaba Hi"h Court in

Rishi!esh $ingh v. $tate7: %hich partly isa"ree %ith the lo"ic o! Parbhoo as !ollo%s: BThe ma'ority in

Parbhoos case %as not ri"ht in assumin" that the accuse can secure an ac+uittal i! he creates a reasonable

oubt as to the e&istence o! e&ception# Ho%ever in some cases the accuse can secure an inirect ac+uittal;

because there may be cases %here; althou"h the e&ception has not been prove; the evience on recor creates a

oubt as re"ars some element %hich is the in"reient o! the o!!ence# (o the court sai that an ac+uittal can be

secure by !irstly; the creation o! a reasonable oubt as to the in"reient o! the o!!ence; an seconly; complete proo! o! the e&ception on a preponerance o! probabilities# In the same year; the Privy Council ecie the (ri

Lan5an case o! ayasena v. Reginam7; %herein their lorships +uote %ith approval the ictum o! /uhol5ar 7#;

in $hi5ari v# (tate00

17 K0417 I All ER 20#

18 AIR 0??(C 0

19 0?>D 2 (#C#7# >@


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In many 'urisictions all over the %orl the phenomenon o! constitutionalisation o! the "eneral principles o!

criminal la%; an especially the constitutionalism o! presumption o! innocence is uner%ay#

Perhaps the !orerunner in this re"ar is The Canaian Charter o! Ri"hts an Freeoms %hich provies !or a

constitutional "uarantee o! the presumption o! innocence# As lai o%n by 7ustice 1ic!son in R v. 0a!s=> Bthe

presumption o! innocence protects the !unamental liberty an human i"nity o! any an every person an i! an

accuse bears the buren o! isprovin" on a balance o! probabilities an essential element o! an o!!ence; it %oul

be possible to convict him espite the e&istence o! a reasonable oubt# (imilar utterances can be !oun in the

(outh A!rican case o! $ v. ,hulwana 20Ho%ever; in the *nite (tates; thou"h there is no speci!ic "uarantee o!

the presumption o! innocence; the courts in re 5inship an /ullany v# Jilbur e&pane the ue process clause

in the >th an 0th amenments to constitutionalism the presumption innocence# Ho%ever; the *#(# approach

emans that there be an o!!ence3e!ense i!!erence; an the protection only applies to tile true elements o! the

o!!ence# Ho%ever; it %oul be su!!icient to state that the American e&perience o! the presumption o! innocence

thou"h not so pronounce as in (outh A!rica or Canaa; nees to be notice as it is one sta"e in the "raualevolution o! constitutionalisation an i! the Inian e&perience is to "rauate !rom the present static sta"e; it is

immeiate perhaps the *#(# e&amples %hich re+uire attention#

Section 10- Burden of proving fact especially within (nowledge - when any fact is especially within the

(nowledge of any person" the burden of proving that fact is upon him#

(ection 01? o! the Evience Act is esi"ne to meet certain e&ceptional cases in %hich it %oul be impossible

!or the prosecution to establish certain !acts %hich are particularly %ithin the 5no%le"e o! the accuse#

In $hambu 'ath /ehrav# $tate of A*mer ; AIR 0>? (C 1; the learne 7u"e has state the le"al principle

thus:

?#his lays down the general rule that in a criminal case the burden of proof is on the prosecution and section

7>: is certainly not intended to relieve it of that duty. 0n the contrary% it is designed to meet certain e@ceptional

cases in which it would be impossible% or at any rate disproportionately difficult for the prosecution to establish

facts which are 9especially9 within the !nowledge of the accused and which he could prove without difficulty or

inconvenience. #he word 9especially9 stresses that. It means facts that are pre-eminently or e@ceptionally within

his !nowledge.?

(ection 01? o! the Evience Act is not intene to relieve the prosecution o! its buren to prove the "uilt o! the

accuse beyon reasonable oubt; but the section %oul apply to cases %here the prosecution has succeee in

20 2? 8LR 211 0


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provin" !acts !or %hich a reasonable in!erence can be ra%n re"arin" the e&istence o! certain other !acts

unless the accuse by virtue o! special 5no%le"e re"arin" such !acts !aile to o!!er any e&planation %hich

mi"ht rive the court to ra% a i!!erent in!erence#22

(ection 01? is certainly not intene to relieve the prosecution o! its initial onus# On the contrary; it is esi"ne

to meet certain e&ceptional cases; in %hich it %oul be impossible or at any rate isproportionately i!!icult !or

the prosecution to establish !acts %hich %ere especially %ithin the 5no%le"e o! the accuse an %hich he

coul prove %ithout i!!iculty or inconvenience# It is not the la% o! the country that the prosecution has to

eliminate all possible evience an circumstances; %hich may e&onerate him# I! those !acts are %ithin the

5no%le"e o! the accuse; then he has to prove them# To reiterate the prosecution has to establish a prima facie

case; in the !irst instance# It %ill not be enou"h to establish !acts; %hich "ive rise to suspicion an then by

reason o! section 01? o! the Evience Act; thro% the onus on the accuse to prove his innocence# *se!ul

re!erence can be mae on this aspect to the la% lai o%n by the (upreme Court in $hambhu 'ath

/eherav# $tate of A*mer ; AIR 0>? (C 1: 0>? Cr L7 4; an Krishna Kumar v# 6nion of India; AIR 0>

(C 0@1: 0> Cr L7 0>1


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they sa% smo5e comin" out !rom the room; they rushe to%ars the same an bro5e open the oor# In the

a!orementione situation section 01? cannot be sai to have any application %hatsoever#

Applica'in # '&! r"l! ' cri+inal ca$!$

(ection 01? o! Evience Act; no oubt; casts a uty on an accuse to e&plain the circumstances that are %ithin

his special 5no%le"e about ho% an incient has ta5en place# $ut this section oes not ispel the initial buren

on the prosecution to establish its case# Also the buren that is cast on the accuse is never as heavy as that on

the prosecution# The e&tent o! uty cast on the accuse uner section 01? o! the Evience Act is never as heavy

as on the prosecution an this has been appositely elineate by the Honble (upreme Court in $awal 1as

v# $tate of ,ihar ; AIR 04 (C 44? (C

?1: 0>? Cr L7


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buren o! provin" 5no%le"e o! a particular !act %hen such 5no%le"e is an in"reient o! the o!!ence char"e;

is almost invariable on the prosecution an cannot be shi!te to the accuse merely on the "roun that this is a

!act %ithin his 5no%le"e# Orinarily; the buren o! provin" every in"reient o! the o!!ence even thou"h

ne"ative averments be involve therein; is on the prosecution: 0? but it seems that; uner this section; buren o!

provin" a !act %oul be upon the accuse person i! the sub'ect o! the averment; %hether a!!irmative or ne"ative

is peculiarly %ithin his 5no%le"e# An accuse person is al%ays entitle to hol his ton"ue; but %here the onlyalternative theory to his "uilt is a remote possibility; %hich; i! correct; he is in a position to e&plain; it is !or him

to prove that alterative theory; an i! he oes not o so; the omission %ill be consiere in eterminin" %hether

the alternative theory shoul be isre"are or ta5en into account# $ut in a (inh case in %hich the nature

o! buren o! proo!; %hen such buren lies upon the accuse; has been lucily e&plaine; it has been remar5e

that section 01? %as never intene to be use to place upon the accuse the buren o! provin" his innocence#

The section is not a proviso to the rule that the buren o! provin" the "uilt o! the accuse is upon the

prosecution# On the contrary the section is sub'ect to that rule# The buren o! provin" a particular !act or a

particular e!ence is a i!!erent matter; section 01? oes not enable the 7u"e to say to the 'ury that the accuse

must e&plain this an that; or that he must satis!y him on this point or that or be !oun "uilty# The section cannot

be use to etermine the %ell establishe rule o! la% that save in very e&ceptional class o! cases; the buren to

prove the "uilt o! the accuse is on the prosecution an never shi!ts# The section oes not a!!ect the onus o!

provin" the "uilt o! an accuse %hich al%ays rests on the prosecution an it oes not cast any buren on an

accuse person to prove that no crime %as committe; by provin" !acts specially %ithin his 5no%le"e; nor

oes it %arrant the conclusion that i! anythin" is une&plaine; %hich the Court thin5s the accuse coul e&plain;

he ou"ht there!ore to be !oun "uilty# Jhen a person oes an act %ith some intention other than that %hich the

character an circumstances o! the act su""est; the buren o! provin" that intention is upon him# Jhere a person

accuse o! lur5in" house trespass by ni"ht pleas in his e!ence that he ha some speci!ic intention in enterin"

the house; an that the intention in +uestion %as neither to commit an o!!ence nor to intimiate; insult or annoy

any person in possession o! the house; the provisions o! section 01? o! the Evience Act come into play an the

buren o! establishin" the particular intent is upon the accuse# Jhere the accuse persons %ere arreste

outsie the city o! A"ra at about mini"ht; all carryin" arms conceale uner their clothes; an none o! them

coul "ive any e&planation o! his presence at the spot; an in those ays the istrict o! A"ra %as notorious as the

scene o! !re+uent an recent acoities; it %as hel that; uner this section; the buren o! provin" that the

intention o! the accuse %as not to commit acoity %as on the accuse persons# Jhere property %as entruste

to a servant; it is the uty o! the servant to "ive a true account o! %hat he i %ith the property so entruste to

him; an his !ailure to o so raises uner this section a presumption that he ha criminally misappropriate the

property so entruste to him# Jhere an accuse is "rante a permit !or steel an iron !or a speci!ic purpose an

unerta5es to return the permit in case the purpose ceases to e&ist; he has a special 5no%le"e an must sho%

that he utili-e the material !or the purpose !or %hich it is "rante#

http://www.manupatrafast.in.ezproxy.svkm.ac.in:2048/Search/dispCommentary.aspx?nActCompID=15706&actid=472&iPage=1&hText=burden%20of%20proof#f16http://www.manupatrafast.in.ezproxy.svkm.ac.in:2048/Search/dispCommentary.aspx?nActCompID=15706&actid=472&iPage=1&hText=burden%20of%20proof#f16


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S$T%O& 10- Burden of proving death of person (nown to have been alive within thirty years) ,hen the

4uestion is whether a man is alive or dead" and it is shown that he was alive within thirty years" the burden of

proving that he is dead is on the person who affirms it#

C++!n'$,

(ections 014 an 01< have to be rea to"ether; because both the sections are complementary to each other#

(ection 014 is base on the principle o! continuity o! li!e %hereas (ection 01< is re"are as proviso to (ection

014# Jhereas (ection 014 eals %ith the presumption o! continuance o! li!e; (ection 01< %ith the presumption

o! eath# (ection 014 is merely a euction !rom this presumption#

Principl!,

(ection 014 lays o%n that i! a person is prove to have been alive %ithin thirty years it shall be presume that

he is alive an the buren o! provin" that he is ea; lies on that person %ho a!!irms that he is ea# This section

su""ests that %henever a person in +uestion is !oun to be alive %ithin thirty years; irrespective o! su""estion o!

his bein" ea; the court shall presume that he is alive unless an until any positive proo! o! his bein" ea is

prove#

This is the presumption o! continuity o! li!e that person may be alive up to thirty years a!ter he %as last seen# I!

a marrie %oman %ants to remarry she has to prove that her husban remains unhear !or seven years (ection

01


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they coul !in secon class accommoation on the arrival o! the train# There %as no proo! that one or other

3o! those courses %ere not !ollo%e by the appellant an the prosecution instea o! provin" the

absence o! any such payments; in the same %ay as it ha prove the non3issue o! secon class tic5ets

relie on Illustration bD to s#01? o! the Evience Act an contene that it %as !or the appellant to prove

that he ha actually pai the secon class !ares# Hel; that Illustration bD to s# 01? o! the Evience Ac

ha no application; the evience auce by the prosecution i not %arrant a conviction an the accuseshoul; havin" re"ar to the lon" lapse o! time; be ac+uitte# That s# 01? o! the Evience Act oes not abro"ate

the %ell3establishe rule o! criminal la% that e&cept in very e&ceptional classes o! cases the buren that

lies on the prosecution to prove its case never shi!ts an s; 01? is not intene to relieve the prosecution o! that

buren# On the contrary; it see5s to meet certain e&ceptional cases %here it is impossible; or

isproportionately i!!icult; !or the prosecution to establish !acts %hich are especially %ithin the 5no%le"e o!

the accuse an %hich can be prove by him %ithout i!!iculty or inconvenience# $ut %hen 5no%le"e o! such

!acts is e+ually available to the prosecution i! it chooses to e&ercise ue ili"ence; they cannot be sai to be

especially %ithin the 5no%le"e o! the accuse an the section cannot apply#

State of ,B v 5ir 5ohammad Omar 6%9 2000 S 28#

The relevant portion containe therein is bein" +uote herein uner:3

#he pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be

ta!en as a fossilied doctrine as though it admits no process of intelligent reasoning. #he doctrine of

presumption is not alien to the above rule% nor would it impair the temper of the rule. 0n the other hand% if the

traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the

offenders in serious offences would be the ma*or beneficiaries% and the society would be the casualty.”

In this case; %hen prosecution succeee in establishin" the a!ore narrate circumstances; the court has to

presume the e&istence o! certain !acts# Presumption is a course reco"ni-e by the la% !or the court to rely on in

conition such as this# Presumption o! !act is an in!erence as to the e&istence o! one !act !rom the e&istence o!

some other !acts; unless the truth o! such in!erence is isprove# Presumption o! !act is a rule in la% o! evience

that a !act other%ise oubt!ul may be in!erre !rom certain other prove !acts# Jhen in!errin" the e&istence o! a

!act !rom other set o! prove !acts; the court e&ercises a process o! reasonin" an reaches a lo"ical conclusion as

the most probable position# The above principle has "aine le"islative reco"nition in Inia %hen (ection 00 is

incorporate in the Evience Act# It empo%ers the court to presume the e&istence o! any !act %hich it thin5s

li5ely to have happene# In that process court shall have re"ar to the common course o! natural events; human

conuct etc# in relation to the !acts o! the case#


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Jhen it is prove to the satis!action o! the court that /ahesh %as abucte by the accuse an they too5 him

out o! that area; the accuse alone 5ne% %hat happene to him until he %as %ith them# I! he %as !oun

murere %ithin a short time a!ter the abuction the permitte reasonin" process %oul enable the court to ra%

the presumption that the accuse have murere him# (uch in!erence can be isrupte i! accuse %oul tell the

court %hat else happene to /ahesh at least until he %as in their custoy# In this conte&t %e may pro!itably

utili-e the le"al principle emboie in (ection 01? o! the Evience Act %hich reas as !ollo%s: BJhen any !actis especially %ithin the 5no%le"e o! any person; the buren o! provin" that !act is upon him#B

• :i7ayee Singh 6nd Ors vs State Of ;ttar .radesh 18810 6%9 1'*82*

0 accuse %ere trie !or o!!ences uner section 0< an @12 rea %ith (ection 0 o! I#P#C# !or the murer o!

t%o persons name /ahenra (in"h an Virenra (in"h an in'uries to @ others name Vi'ay Narain (in"h;

P#J# 0;*ma (han5ar (in"h; P#J# 2 an .ailash (in"h# Accuse No# ? Chir5ut (in"h %as !urther trie uner

(ection @14 I#P#C# !or attemptin" to murer P#J# 0 an all the remainin" accuse uner section @14 rea %ith

(ection 0 I#P#C# !or causin" in'uries to *ma (han5ar an .ailash (in"h# The trial court relyin" on the

evience o! P#Js 0 an 2 %ho %ere the main eye %itnesses convicte all the 0 accuse uner section @12

I#P#C# rea %ith (ection 0 I#P#C# an a%are them li!e imprisonment# The convicte accuse pre!erre

appeals to the Hi"h Court an the (tate !ile appeals !or enhancement o! their sentence# A 8ivision $ench o! the

Allahaba Hi"h Court consistin" o! 7ustice .at'u an A""ar%al hear the appeals# Jhile 7ustice .at'u allo%e

the appeals by the accuse an ismisse the (tate appeals; 7ustice A""ar%al isa"reein" %ith him; ismisse

all the appeals; both by the accuse an by the (tate# Conse+uently the matter %as re!erre to a thir 'u"e#

7ustice (eth %ho con!irme the conviction an sentence a%are to accuse Nos# 0; @; an ? only an ac+uitte

all the rest o! the accuse on the vie% ta5en by him that the speci!ic overt acts %ere attributable to only these

!our accuse an the rest shoul be "iven the bene!it o! oubt#

Hel: 3 (ection 01> places Bburen o! proo! on the accuse in the !irst part an in the secon part there is a

presumption %hich the Court can ra% re"arin" the absence o! the circumstances; %hich presumption is

al%ays rebuttable# Ta5in" the section as a %hole the Bburen o! proo!B an the presumption have to be

consiere to"ether# It is a&iomatic %hen the evience is su!!icient as to prove the e&istence o! a !act

conclusively then no i!!iculty arises# $ut %here the accuse introuces material to isplace the presumption

%hich may a!!ect the prosecution; case or create a reasonable oubt about the e&istence o! one or other

in"reients o! the o!!ence an then it %oul amount to a case %here prosecution !aile to prove its o%n case

beyon reasonable oubt#

25 http:inian5anoon#or"oc01?14>

http://indiankanoon.org/doc/1060754/http://indiankanoon.org/doc/1060754/


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CHAPTER -COMPARITI3E STUDY

UNITED STATES OF AMERICA4USA5

$uren o! proo! re!ers most "enerally to the obli"ation o! a party to prove its alle"ations at trial# In a civil case

the plainti!! sets !orth its alle"ations in a complaint; petition or other pleain"# The e!enant is then re+uire to

!ile a responsive pleain" enyin" some or all o! the alle"ations an settin" !orth any a!!irmative !acts in

e!ense# Each party has the buren o! proo! o! their alle"ations#

Le"al stanars !or buren o! proo!

Pr!pnd!ranc! # '&! !)id!nc!

Preponerance o! the evience; also 5no%n as %alanc! # pr%a%ili'i!$ is the stanar re+uire in

most civil cases; an in !amily court eterminations solely involvin" money; such as chil support uner

the Chil (upport (tanars Act#

The stanar is met i! the proposition is more li5ely to be true than not true# E!!ectively; the stanar is satis!ie

i! there is "reater than >1 percent chance that the proposition is true# Lor 8ennin"; in /iller v. /inister of

&ensions; escribe it simply as Bmore probable than not#B *ntil 041; this %as also the stanar use in

'uvenile court in the *nite (tates#

This is also the stanar o! proo! use %hen eterminin" eli"ibility o! unemployment bene!its !or a !ormer

employee accuse o! losin" their 'ob throu"h alle"e misconuct# In most *( states; the employer must prove

this case base on preponerance o! the evience#

Preponerance o! the evience is the stanar o! proo! use !or immunity !rom prosecution uner Florias

controversial stan3your3"roun la%# The e!ense must present their evience in a pre3trial hearin"; sho% that

the statutory prere+uisites have been met; an then re+uest that the court "rant a motion !or eclaration o!

immunity# The 'u"e must then ecie base on the preponerance o! the evience %hether to "rant immunity#

This is a !ar lo%er buren than Bbeyon a reasonable oubt;B the threshol prosecutors must meet at any proceein" criminal trial

Cl!ar and cn)incin( !)id!nc!

http://en.wikipedia.org/wiki/Affirmative_defenseshttp://en.wikipedia.org/wiki/Affirmative_defenseshttp://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Family_courthttp://en.wikipedia.org/wiki/Family_courthttp://en.wikipedia.org/wiki/Child_supporthttp://en.wikipedia.org/wiki/Child_Support_Standards_Acthttp://en.wikipedia.org/wiki/Child_Support_Standards_Acthttp://en.wikipedia.org/wiki/Probabilityhttp://en.wikipedia.org/wiki/Tom_Denning,_Baron_Denninghttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Affirmative_defenseshttp://en.wikipedia.org/wiki/Affirmative_defenseshttp://en.wikipedia.org/wiki/Civil_law_(common_law)http://en.wikipedia.org/wiki/Family_courthttp://en.wikipedia.org/wiki/Child_supporthttp://en.wikipedia.org/wiki/Child_Support_Standards_Acthttp://en.wikipedia.org/wiki/Probabilityhttp://en.wikipedia.org/wiki/Tom_Denning,_Baron_Denninghttp://en.wikipedia.org/wiki/United_States


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Clear an convincin" evience is a hi"her level o! buren o! persuasion than Bpreponerance o! the evienceB#

It is employe intra3a'uicative in aministrative court eterminations; as %ell as in civil an certain crimina

proceure in the *nite (tates# For e&ample; a prisoner see5in" habeas corpus relie! !rom capita

punishment must prove his !actual innocence by clear an convincin" evience# 2?

This stanar is use in many types o! e+uity cases; incluin" paternity; persons in nee o! supervision; 'uvenile

elin+uency; chil custoy; the probate o! both %ills an livin" %ills; petitions to remove a person !rom li!e

support Bri"ht to ieB casesD; an many similar cases#

Clear an convincin" proo! means that the evience presente by a party urin" the trial must be hi"hly an

substantially more probable to be true than not an the Trier o! !act must have a !irm belie! or conviction in its

!actuality# In this stanar; a "reater e"ree o! believability must be met than the common stanar o! proo! in

civil actions; %hich only re+uires that the !acts as a threshol be more li5ely than not to prove the issue !or

%hich they are asserte#

This stanar is also 5no%n as Bclear; convincin"; an satis!actory evienceBG Bclear; co"ni-ant; an convincin"

evienceBG an Bclear; une+uivocal; satis!actory; an convincin" evienceB; an is applie in cases or situations

involvin" an e+uitable remey or %here a presumptive civil liberty interest e&ists#

• B!6nd r!a$na%l! d"%'

This is the hi"hest stanar use as the buren o! proo! in An"lo3American 'urispruence an typically only

applies in criminal proceein"s# It has been escribe; in ne"ative terms; as a proo! havin" been met i! there isno plausible reason to believe other%ise# I! there is a real oubt; base upon reason an common sense a!ter

care!ul an impartial consieration o! all the evience; or lac5 o! evience; in a case; then the level o! proo! has

not been met#

Proo! beyon a reasonable oubt; there!ore; is proo! o! such a convincin" character that one %oul be %illin" to

rely an act upon it %ithout hesitation in the most important o! ones o%n a!!airs# Ho%ever; it oes not mean an

absolute certainty# The stanar that must be met by the prosecutions evience in a criminal prosecution is that

no other lo"ical e&planation can be erive !rom the !acts e&cept that the e!enant committe the crime;

thereby overcomin" the presumption that a person is innocent unless an until proven "uilty#

I! the trier o! !act has no oubt as to the e!enants "uilt; or i! their only oubts are unreasonable oubts; then

the prosecutor has prove the e!enants "uilt beyon a reasonable oubt an the e!enant shoul be

pronounce "uilty# The term connotes that evience establishes a particular point to a moral certainty %hich

26(alderon v. #hompson; >2@ *#(# >@


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preclues the e&istence o! any reasonable alternatives# It oes not mean that no oubt e&ists as to the accuses

"uilt; but only that no reasonable oubt is possible !rom the evience presente# Further to this notion o! moral

certainty; %here the trier o! !act relies on proo! that is solely circumstantial; i.e.; %hen conviction is base

entirely on circumstantial evience; certain 'urisictions speci!ically re+uire the prosecutions buren o! proo! to

be such that the !acts prove must e&clue to a moral certainty every reasonable hypothesis or in!erence other

than "uilt#

The main reason that this hi"h level o! proo! is emane in criminal trials is that such proceein"s can result in

the eprivation o! a e!enants liberty or even in his or her eath# These outcomes are !ar more severe than in

civil trials; in %hich monetary ama"es are the common remey#

UNITED 7INGDOM

In the three 'urisictions o! the *. Northern IrelanG En"lan M JalesG an (cotlanD there are only t%o

stanars o! proo! in trials# There are others %hich are e!ine in (tatutes relatin" to police po%ers etc#D

The Criminal stanar %as !ormerly escribe as Bbeyon reasonable oubtB# That stanar remains; an the

%ors commonly use; thou"h the 7uicial (tuies $oar "uiance is that 'uries mi"ht be assiste by bein" tol

that to convict they must be persuae Bso that you are sureB#

The Civil stanar is the balance o! probabilities; o!ten re!erre to in 'u"ments as Bmore li5ely than notB#

CHAPTER /-CONCLUSION AND SUGGESTIONS

CONCL*(ION

In conclusion; it may be state that the le"al buren o! proo! remains constant an is a!!ecte only by reverse

onus that chan"e the nature o! the le"al buren to the e&tent that all the in"reients o! the o!!ence o not have to

be prove by the prosecution# Ho%ever; such reverse onus clauses are usually limite to strict liability o!!ences

Even i! the statues see5s to place the le"al buren on the accuse; it has to be rea o%n so that only the

eviential buren on the accuse is there# (imilarly; even in the case o! presumption; e&ception an proviso;

althou"h section 01>300A o! Inian Evience Act shi!ts the buren o! proo!# The presumptions a"ainst the

accuse are rebuttable an there!ore; the le"al buren is never shi!te upon the accuse#

In the *. an *(A; the con!usion in respect o! phrase beyon reasonable oubt has arisen only because o!

the irections that are "iven to the 'ury by the 'u"e# Ho%ever; it is "enerally accepte that the stanar o! proo!

is that proo! beyon reasonable oubt# In the Inian conte&t; since there is no 'ury system; the 'u"es o not

http://en.wikipedia.org/wiki/Circumstantial_evidencehttp://en.wikipedia.org/wiki/Circumstantial_evidence


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nee to e!ine the phrase an may act on the ob'ective basis o! a reasonable man to etermine %hether a oubt

is reasonable# Here it is apt to +uote; Lor 7ustice 8ennin" %ho relie upon Chie! 7ustice $est in proportion as

the crime is enormous; so ou"ht the proo! to be clear#

It shoul be remembere that as re"ars the Inian position on the constitutionalisation o! tile presumption o!

innocence in P#N# .ishanlal an others v# =overnment o! .erala an others@l it %as e&plicitly lai o%n that the

presumption o! innocence is not a constitutional "uarantee an reverse onus# Clauses cannot be eclare as ultra

vires# Ho%ever; avertin" to the +uestions %hich %ere raise earlier %ith respect to the Joolmin"ton

!ormulation; there is a nee to ans%er an o!t +uote criticism ### that the !ormulation vastly increases the buren

on the prosecution# In ans%er to this; Paul Roberts retorts BJhat is %ron" i! the prosecutions onus is mae

%ei"htier, It is repu"nant to public policy to allo% conviction even %hen oubt e&ists: Jhilst a normative

su""estion is not sou"ht to be mae; "iven the present circumstances; %herein an abysmally lo% conviction rate

stares us in the !ace; a comprehensive buren as Fletcher puts itD on the prosecution may not be avisable# The

e&istin" !ormulation in Joolmin"tons case; as re!lecte in the ecisions o! the Inian courts is a correct anthou"ht!ul e&position o! la%#

SUGGESTIONS

• I propose to o a%ay %ith the presumption o! innocence an lo%er the stanar o! proo! %hich %ill

violate the presumption o! innocence as enshrine in Art 02D o! ICCPR# This iea is on armin" the

state %ith iscretionary an punitive measures; %ea5enin" the constitutionally "uarantee ri"hts o! the

accuse; rela&in" the presumption o! innocence until proven "uilty#

• I propose to "ive po%er to the court to ra% a presumption %here boily in'uries !atal or other%iseD are

cause to a person %hile he is in the custoy o! the police# The court may be "iven iscretion that the

in'uries %ere cause by the police havin" the custoy o! the person urin" the relevant perio# The

vestin" o! such po%er is 'usti!ie because as re"ars a person in police custoy; it is unli5ely that anyone

else %oul have the opportunity o! in!lictin" in'uries#

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