ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

Law of Evidence
1st G.C.T
Topic-Burden of proof: Special rules(104-106)

Submitted to, Submitted by,

Mr.Ghalib Nashter Kunjali Singh
Assistant Professor GK7931
Department of law 18BALLB34
Topic Page no.
Introduction 3
Meaning of burden of 3
proof
Section. 104 4
Proof of fact on which 4
evidence becomes
admissible
Section 105 5
Presumption of 6
innocence
Section 106 8
Res ipsa loquitor 9
Conclusion 10
Introduction
Chapter VII of the Act deals with provisions under burden of proof. The term “burden of proof”
isn’t defined in the Act, however it is the rudimentary principle of criminal that, that the
presumption of innocence lies with the accused unless proven otherwise. The principle of Burden
of proof is based on the concept of onus probandi (burden of proof) and factum probans (proving
a fact). While the burden of proof remains constant, the onus for the same shifts from one party to
another. The facts that are required to be proved are those which are not self-evident in nature. In
the case of Jarnail Sen v. State of Punjab1 that in, if the prosecution fails to adduce the satisfactory
evidence to discharge the burden, they cannot depend upon evidence adduced by the accused
person in support of their defence.

Meaning of Burden of proof

The burden of proof means obligation to prove a fact. Every party has to establish facts which go
in his favour and against his opponent. And this is the burden of proof. Strict meaning of term
“burden of proof” is that if no evidence is given by party on whom the burden is passed the issue
must be found against him. The phrase “burden of proof” has two distinct meaning:

(1)Burden of proof as a matter of law and pleading- That is the burden of proving all the facts
are establishing one's case. The burden rests upon the same party, where the plaintiff defendant,
who substantially asserts the formative of the issue. It is fixed, at the beginning of the trial, by the
statement of pleadings, and it is settled as a question of law, remaining unchanged under any
circumstances whatever. (101)

(2)Proof as a matter of adducing evidence-Either at the beginning or at any particular stage of the
case. It is always unstable and may shift constantly throughout the trial. It lies at first on the party
who would be unsuccessful if no evidence at all was given on either side. The burden must shift
as soon as he produces evidence which prima facie gives rise to a presumption in his favour. It
may again shift back on him, if the repeating evidence produced by his opponent preponderates.
This being the position, the question as to onus of proof is only a rule for deciding on whom the
obligation rest of going further if he wishes to win.

1 1986 A.I.R 1626, 1986 S.C.R (2) 1022

Importance Of burden of proof

The question of onus or burden of proof at the end of the case when both parties have adduced
evidence is not affected a very great importance and the court has to come to a decision or
consideration of all materials. When the entire evidence, which is possible on a subject, has already
come before the court, from whatever source it maybe, it is well settled that the question of burden
of proof becomes immaterial. Burden of proof as a determining factor of the whole case can only
arise if the courts Find the evidence for and against so even the balance that it can come to no
conclusion. Then the onus will determine the matter and the person on whom the burden of proof
lies will lose.

SEC. 104: BURDEN OF PROVING FACT TO BE

PROVED TO MAKE 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.”

Illustrations: (a) A wishes to prove a dying decoration by B who stop am us to B's death.

(B) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that
the document has been lost.

Proof of fact on which evidence becomes admissible

Where the admissibility of one fact depends upon the proof of another fact, The party who wants
to prove it will have to prove the fact on which admissibility depends.

Thus, if a person wants to prove a dying declaration he must do that the declarant has died.
Similarly, party want to offer the secondary evidence of a document he must prove that the original
has been lost or destroyed or the cases between any of the exceptions in which second previous
can be given. Where existence of the fact of joint family does not lead to the presumption that a
property held by any of its members a joint family property. It has to be proved that the property
was purchased from the surplus income of joint family nucleus. 2

S.105. BURDEN OF PROVING THAT CASE OF

ACCUSED COMES WITHIN EXCEPTIONS.-

When a person is accused of any offence, the burden of proving the existence of circumstances
bringing the case within any of the general exceptions in the Indian Penal Code(45 of 1860) or
within any special exception or proviso contained in any other part of the same code, or in any law
defining the offence is upon him and the court shall presume the absence of such circumstances.

Illustrations-(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not
knew the nature of the act.

The burden of proof is on A.

(b)A comma accused of murder, alleges that by grave and sudden provocation, he was deprived
of the power of self control.

The burden of proof is on A.

(c)Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case
provided for by section 335, voluntarily causes previous word, shall be subject to certain
punishments.

(d)A Is charged with voluntarily causing grievous hurt under section 325.

The burden of proving the circumstances bringing the new case under section 335 lies on A.

Burden of proving exception in criminal cases

2 Sadasivam v. Sankar, A.I.R. 2017 Mad. 175.

The above stated principles relating to burden of proof are applicable to criminal cases also.
Sections 101 to 104 and section 105 nowhere mentioned that they are to be confined to civil cases
only and some of the illustration appended to the section Aaron come in matters stop this shows
that the principles are intended to be off uniform Application to civil, criminal and other
proceedings. Section 105 is, however, intended to apply only to criminal proceedings.

The general principles relating to burden of proof in criminal cases are these two: Firstly, that the
course presume start the accused is innocent and, therefore, prosecution must believe that he’s
guilty, and Secondly that once the prosecution has proved beyond reasonable doubt that the
accused is guilty and he takes any defense, such as insanity, but the burden of proving that fact
lies on him. This is what section 105 provides. It says that if the accused claim that is case comes
within any of the recognized exceptions, the burden of proving that lies on him.

Presumption of innocence

Every person accused of a crime is always presumed to be innocent, so that but align upon the
prosecution to establish beyond a reasonable doubt that all the ingredients of the fence with which
the queues discharge are made out. Does prosecution has to prove every ingredient in the crime.
30 season of the House of Lords in Woolmington vs Director of public prosecution 3, Is the leading
pronouncement. Their Lord ships pointed out that the prosecution has not merely to prove that
the cucet has cost death and ask the court to presume that it was murder, they must prove every
ingredients that makes the killing a murder. It is not for the prisoner to establish is no sense but
for the prosecution to stab lish his guilt. But while the prosecution must establish the guilt of the
prisoner, there’s no such word laid on the prisoner to prove his innocence and it is sufficient for
him to raise a doubt, as to his kid, he’s not bound to satisfy the court office innocence, there is
already the presumption of innocence. This is the effect of presumption of innocence. LORD
SANKEY, L.. reconsidering Earlier decisions, most emphatically laid down: “ throughout the
web of, the English criminal law one Golden thread is always to be seen that it is the duty of the
prosecution to prove the prisoners killed, subject to the defence of insanity and subject also to any
statutory exception. If, at the end off and on the whole of the case, there is a reasonable doubt,
created by the evidence given by either of the prosecution or the prisoner, as to whether the
prisoner killed the deceased with a malicious intention, the prosecution has not made out the case
and the prisoner SN title to an actor. No matter what the charge or where the trial, the principle
that the prosecution must prove the guilt is part of the common law of England and no attempt to
whittle it down can be entertained.”

3 (1935) A.C. 462.

In this case the accused went to his mother in laws house with a loaded gun to demonstrate to his
estranged wife that he planned to commit suicide if she did not return to him. He claimed that the
gun went off accidentally while he was attempted to show it to his wife. The judge directed the
jury that the burden was upon him to show that it was the case of accident, which he could not do
and therefore he was convicted of murder. His appeal to the House of Lords succeeded. Their
lordship were of the view that the prosecution have to prove that he actually committed the crime
that he had done so with the necessary guilty mind.

A parallel case was before the supreme Court in K.M Nanavati vs State of Maharashtra4 with the
only difference that it was not the wife that was killed but the wife’s paramour. Nanavati, the naval
officer was prosecuted for the same. His wife confessed of the relationship. He went to Ahuja the
deceased finding him in his home, scuffle followed, in the course of it 2 shots from his service
revolver went off accidentally resulting in Ahuja’s death. The Supreme Court held that the burden
of proof was upon him to show the fact of struggle and that the shots went off either accidentally
or in self defence.

Onus to overthrow statutory presumption

Where the presumption of innocenve is reversed by a statutory provision so that the burden is on
the person accused to show, e.g. that he was in innocent possession of railway property or an
assault rifle. The Supreme Court held that such burden should not be as heavy as that of the
prosecution but even so should be of greater probability. 5

Burden of proving defence (S. 105)

Section 105 clearly casts the burden of proving a defence or any of the exceptions upon the
accused. Everybody is presumed to be sane. The contrary has to be proved.6 In Beatty vs. Attorney-
General for Northern Ireland 7 , the accused was prosecuted for the murder of the girl by
strangulating her. His defence was that of automatism, or incapacity to form intention of murder,
or insanity. The House of Lords upheld the decision of the Court of criminal appeal which has
convicted him because he failed to prove his defence to the satisfaction of the jury. It is the accused
who has to make out his insanity.8 The underlying principles have been restated by the Supreme
Court in dayabhai versus state of Gujarat. Doctrine of burden of proof in the context of the play of

4 A.I.R. 1962 S.C. 605.

5 Sanjay dutt, (1994) 5 S.C.C. 410.
6 R vs. Sheppard, (1810) R and R 211.
7 (1961) 3 W.LR. 965: (1961) 1 All E.R. 523 : (1963) A.C 386.
8 R. V. DAVIES, 1913 8 cr. App R 211
insanity may be stated in the following prepositions 1 prosecution must prove beyond reasonable
doubt attack used hard committed offence with the requisite manchuria, and the burden of proving
that always rest of the position from the beginning to the end of the trial to there be table
presumption the cube was not insane when he committed the crime Tak used meri bit by placing
before the court all the relevant evidence oral common, documentary of circumstantial, but the
burden of proof on him is no higher than that which Rays upon a party to civil proceedings, 3 even
if the queues was not able to re stab lish conclusively that he was insane at the time when he
committed the fence, evidence place before the court marriage reasonable doubt in the mind of the
code as regards one or more of the ingredients of the offence, including manchuria and in that case
the court would be entitled to acquit the accused.

Polling this approach, dum Jammu and Kashmir High Court acquitted accused on the charge of
murder when it was successfully shown to the code that before at the time and after the incident
he was bearing a close resemblance to a Mad Dog, his home people stated that he had gone mad
and soon after the incident he was tied by them with ropes to a pillar waiting for the arrival of the
police.

Person alleged to be suffering from mental Disorder cannot be exempted from criminal liability
Ipso facto stop owners would be upon him to prove by expert evidence to show that he was
suffering from such mental condition that he could not be expected to be aware of the causes of
his act. A person heartlessly killed his child and injured his wife and mother. He was working as
a government servant witnesses were produced from his office site as well as home. But none were
able to testify to his being mentally unwell. The defense of insanity was held to be not proved.

In reference to the bardan that lies on the queues to prove defence, the Supreme Court laid down
certain principles, which were restated by Fazal Ali, J., in Rabindra Kumar Dey vs. State of
Orissa9 the cusine this case was prosecuted under prevention of corruption act, 1947, for keeping
Kermit money with him for a period of 6 months. Explanation was that he was given the money
for the purpose of distributing it among villagers who’s lunch had been acquired. The villagers
did not accept the money in protest. Efforts were a food to persuade them to accept and, in order
to avoid repeated formalities of deposit and withdrawal he did not pay back the money into the
Treasury. His explanation was rejected his conviction was upheld by the High Court. But on
appeal to the Supreme Court he was acquitted. Fazal Ali J. first restated the main principles. Next
line in our opinion 3 Cardinal principles of criminal jurisprudence are well settled, namely:-

(1) The owners lies affirmatively on the prosecution to prove its case beyond reasonable doubt
and cannot derive any benefit from weakness or falsity of the defense version while proving
its case,

9 (1976) 4 S.C.C. 233

(2) That in the criminal trial the accused must be presumed to be innocent unless he’s proved to
be guilty, and
(3) That the onus of the prosecution never shifts.
S. 106. Burden of proving fact especially within
knowledge.-
When any fact is specially within the knowledge of any person, the Burden of proving that fact is
upon him.

Illustrations
(A) Where person doesn’t act with some intention other than that which the character and
circumstances of the add suggest, the border proving that intention is upon him.
(B) A charged with travelling on a railway but without a ticket. The burden of proving that he
had a ticket is on him.

Fact specially within knowledge of a party

Where a fact especially within knowledge of a party, the burden of proving that fact lies upon him.
This is the principle of section 106. Where a man and a women were found hiding other bad in the
bedroom of the person who was lying date of injuries, it was held at the bird lay upon them to
explain their presence and, also the circumstances in which the which the deceased metis death.
Failure on the part of the state to produce a merit list despite Supreme Court direction created the
presumption that no merit list was prepared. The fact of the exists or otherwise of the merit list
was specially within the knowledge of state. 10
Where person is charged with travelling without ticket the fact that he bought a ticket is only
known to him and, therefore burden lies upon him to prove that he bought the ticket. This word
principle was not applied in the railway accident claim was for compensation. Burton was on
railways to show that he had no ticket and was not a bona fide passenger for stop the word person
would then shift to the claimant. 11Where goods are lost from the custody of a Bailey, such as a
career or an innkeeper, how they were lost a fact known only to him, and, therefore button lies
upon him to show the circumstances of the lost.
Social status.- A scheduled caste certificate was cancelled cool stop scrutiny committee was
constituted to assess which weather petition belong to the schedule cast or not. Committee
considered all evidence and cancelled the certificate for stop it was held at the decision of the
committee could not be interfered by the High Court judicial review. The burden of proving status
lay on the person relying on such certificate.

Position under carriers act

10 State of Bihar v. Kumar P.N. Singh, (1997) 5 S.C.C. 298
11 Asharani das vs. U.O.I., A.I.R. 2009 Cal. 205(DB)
In case of non delivery of goods by the carrier or damaged to goods, the burden of proof is on the
plaintiff, it is for the carrier to prove that there was no negligence on the part of him cool stop he
being exclusive custodian during transit, is the only person who knows how the goods were lost
or damaged. Hence, it is his burden to explain the circumstances which are specially within his
knowledge. Where carrier made short delivery due to pull fridge and pleaded the vehicle was not
left unattended at any point of time, the court said that button was upon the carrier to show that
there was no negligence on its part. Carried out examine the investigating officer and the driver
com. Hence, there was no presumption in favour of the carrier on the point of person of proof.12

Res ipsa loquitor

The principle stated in section 106 is an application of the principle of res ipsa loquitor. And a
station of the principal is Scott versus London and Catherine dogs Co dot. A customs officer in
the course of his routine duty visited the defendants premises when some back of sugar being on
a crane at that time, fell upon him. It was held at the fact whether the train was properly managed
was specially within the knowledge of the defendant, because ordinarily an accident of this kind
would not occur if the thing was properly managed and, therefore burdened upon him to prove
that there was no negligence on his part.

Conclusion
From this we can understand how evidence is so much important for a case. Finding out the hidden
answers is hectic for judge, lawyers and officers. Offenders will always have a plan to escape after
committing a crime but evidence is the only trap for capturing the offender.
The rule Governing the burden of proof is that whoever as a claim must present evidence of proof.
This rulr is subject to the principle that the burden of proof rest of the party that either asserts a
claymore denies it. This implies that whoever brings a case against another to the court must prove
the fact he claims. In criminal cases, the burden of proof on defendant is based on the evidence
that is stablish before the court which states the fact that he committed the crime as add used
accused can only be presumed guilty based on the fact established by the accused to the court in
accordance with the burden of proof that rules the case.

12 VRL logistics Ltd. V. Glenmark pharmaceuticals Ltd. A.I.R. 2012 Mad. 160