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Basic Rules as to Burden of Proof in Evidence Act

Updated: May 18

Basic Rules as to Burden of Proof  in Evidence Act


The term "burden of proof" encompasses dual significance. Primarily, it denotes the obligation of a party to substantiate an assertion before a judgement can be rendered in its favour.

Additionally, it denotes that in a contested matter, one of the opposing parties must present evidence. The significance of the burden of proof emerges when a party, failing to fulfil the imposed burden, ultimately faces defeat.

Initially, this burden rests upon one party at the outset of a trial. However, throughout the trial proceedings, it may transition from one side to the other.

Upon the conclusion of a case, wherein both parties have presented evidence and the conflicting testimonies are subject to scrutiny to ascertain the direction in which the issue leans, the abstract concept of burden of proof becomes moot.

Understanding the Burden of Proof Evidence Act

The burden of proof encompasses the obligation to substantiate a fact, where every party must establish facts either in their favour or against their opponent.

This obligation, in its strictest sense, dictates that if no evidence is presented by the party upon whom the burden rests, the issue must be decided against them. The phrase "burden of proof" holds two distinct meanings:

  1. Burden of Proof as a Matter of Law and Pleading: This pertains to the burden of proving all facts or establishing one's case. It is incumbent upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue.

  2. This burden is determined at the outset: of the trial based on the statements of pleadings, and it remains fixed as a question of law, unaffected by any circumstances (Sec. 101)

3. Burden of Proof as a Matter of Adducing Evidence: This involves the burden of presenting evidence either at the outset or at any specific stage of the case. It is inherently unstable and may shift continuously throughout the trial (Secs. 102-103).

Initially, it lies upon the party who would suffer defeat if no evidence were presented on either side. However, the burden must shift as soon as this party produces evidence that prima facie supports a presumption in their favour.

Conversely, it may revert back to them if the rebuttal evidence presented by their opponent outweighs their own.

Therefore, the determination of the onus of proof serves merely as a guideline for discerning which party bears the obligation of presenting further evidence if they seek to prevail.


Burden of Proof (Sec. 101)

According to Section 101, whoever seeks a court's judgement regarding any legal right or liability based on asserted facts must substantiate the existence of those facts. When an individual is obligated to prove the existence of a fact, it is deemed that the burden of proof lies upon them. 

Here are some illustrations:

  1. A seeks the court's judgement to punish B for a crime A alleges B committed. In this case, A must prove that B committed the crime.

  1. A seeks the court's judgement asserting entitlement to certain land in B's possession based on asserted facts, which B denies. A must provide evidence of the existence of those facts.

Typically, affirmative facts are easier to prove compared to negative facts. The principle of Section 101 stipulates that a party intending the court to believe in a fact's existence and base a judgement on it must prove the fact.

For instance, when a party alleges a transaction as sham and bogus, they must provide proof.

However, in cases questioning whether a transaction is bona fide and genuine, the burden initially rests on the party relying on the transaction to prove its genuineness.

Only then is the defendant required to rebut such proof and demonstrate that the transaction was sham and fictitious (Subhra Mukherjee v Bharat Coking Coal Ltd. AIR 2000 SC 1203; Paka Venkaiah v Takuri Buchi Reddy AIR 2005 NOC 31 (A.P.)).

The failure to prove a defence doesn't imply admission, nor does it shift or discharge the burden of proof (Manager, Reserve Bank of India v S. Mani AIR 2005 SC 2179).

In cases of rape, the burden of proving consent lies with the accused; it is not the victim's responsibility to demonstrate lack of consent (State of HP. v Shree Kant Shekari AIR 2004 SC 4404).

In Neelakantan v Mallika Begam AIR 2002 SC 827, the tenant of a building in a slum area claimed protection from eviction.

The tenant contended that the property was in a slum area, while the landlady denied it. The burden to prove the property's location in a slum area falls on the tenant.

On Whom Burden of Proof Lies (Sec. 102)

Section 102 states that the burden of proof in a suit or proceeding rests on the person who would suffer defeat if no evidence were presented on either side. 

Here are some illustrations:

  • A initiates legal action against B for land that B currently possesses, claiming that it was bequeathed to A by the will of C, B's father. If no evidence were presented by either party, B would retain possession. Therefore, the burden of proof lies on A.

  • A sues B for money owed on a bond. While the execution of the bond is acknowledged, B alleges fraud in its procurement, which A disputes. If no evidence were provided by either side, A would prevail since the bond is uncontested and fraud remains unproven. Thus, the burden of proof rests on B.

  • In cases of insanity, the burden of proving that condition lies with the party relying on it. Similarly, in disputes over the authenticity of a document, the burden falls on the party alleging it until the opposing party establishes its genuineness initially (Subhra Mukherjee v Bharat Coking Coal Ltd. AIR 2000 SC 1203).

  • In a negligence suit seeking damages, if the defendant alleges contributory negligence by the plaintiff, they must prove it, as their case would fail without evidence on either side. This principle reinforces that the burden of proof lies on the party affirming a fact rather than on the one denying it. Likewise, a person asserting adoption must prove its validity.

  • When the government imposes a complete prohibition on certain types of trade, it must demonstrate that the prohibition constitutes a reasonable restriction on trade liberty. Generally, however, the burden of proof rests on the party challenging the constitutional validity of an Act or Rule (Amrit Banaspati Co.v UOI AIR 1995 SC 1340).

Burden of Proof as to Particular Fact (Sec. 103)

Section 103 stipulates that the burden of proof regarding any specific fact lies with the party who seeks to persuade the court of its existence, unless otherwise specified by law.


(a) A prosecutes B for theft, asserting that B confessed the theft to C. In this scenario, A must provide evidence of the admission.

Conversely, B claims to have been elsewhere at the time of the alleged theft. It is incumbent upon B to substantiate this claim.

Similarly, if a person who signed a loan document acknowledges the loan but contends that they signed a blank paper, the burden rests on them to prove this assertion.

Burden of Proving Fact to be Proved to Make Evidence Admissible (Sec. 104)

Section 104 provides that the burden of proving any fact necessary to render evidence of another fact admissible lies with the individual intending to present such evidence.


  • In a case where a person seeks to recover possession, they must prove that they were dispossessed within the preceding 12 years.

  • A father admitted paternity of a girl whose legitimacy was questioned but claimed she was illegitimate. As there is a presumption of legitimacy, the burden lies on the father to prove otherwise.

  • In transactions involving pardanashin women, there is a presumption of undue influence. Therefore, the burden rests on the other party to demonstrate that the transaction was fair and equitable.

  • If a pardanashin woman transfers her property with certain conditions, but the deed is altered to remove those conditions, the burden of proving that the alteration was done with the woman's consent lies with those seeking to benefit from the altered deed.

  • In cases of illiterate individuals claiming lack of understanding of a document, the burden falls on the other party to prove that the person was fully informed of the document's contents.

  • The burden lies upon the plaintiff to substantiate all aspects of the right of pre-emption.

  • A telegram lacks authenticity without confirmation by a subsequent signed application, representation, or affidavit. Therefore, the burden of proving the authenticity of a telegram rests on the party presenting it.


Important Cases

Sanjay Dutt v. State, (1994) 5 SCC 410

In cases where the presumption of innocence is overturned by statutory provision, the burden should not be as weighty as that borne by the prosecution.

Nagar Parishad, Ratnagiri v. Gangaram Narayan Ambedkar, (2020) 7 SCC 275

The initial burden always lies with the plaintiff to substantiate their claim with sufficient pleadings and evidence. The weakness of the defence cannot serve as grounds for granting relief to the plaintiff or for shifting the burden of proof onto the defendants.

Paul v. State of Kerala, (2020) 3 SCC 115

The burden of proving that a case falls within the exceptions under Section 300 of the Indian Penal Code rests with the accused.

It is conceivable for the accused to discharge this burden even without presenting evidence, by referencing materials revealed through the prosecution's evidence, including the cross-examination of prosecution witnesses.

The criterion for this assessment is based on the preponderance of probabilities.

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