The term burden of proof, which is not defined in the Indian Evidence
Act, 1882, essentially refers to the legal responsibility of a party
in a case to prove the existence of any fact as true in a judicial
The burden of proof comes into play when a party wants from a court a
judgment in regard to any legal right or liability dependent on some
facts which need to be proved by him to the satisfaction of the court.
In short, the burden of proof is an obligation that the law imposes on a
party to produce evidence and prove it so as to satisfy the court in
deciding the matter in his favour or otherwise.
A party must prove what he proposes
A plaintiff who wants to get a judgment in his favour from the court in
regard to a legal right or claim based on some facts must prove such
facts which he asserts in the court by adducing proper evidence. The
burden of proving the facts squarely lies on the person who asserts the
existence of such facts. Otherwise he would fail in the case. In short,
the person who asserts a fact must prove that fact in a way that is
satisfying to the court. This is what the Section 101 of the evidence
For example, a complainant wants the defendant gets punishment for the
offence of cheating. Then the complainant must prove that the defendant
has committed the ingredients of the offence, by adducing cogent
In another case, a plaintiff wants the court to give judgment declaring
him as the title holder of the land which is in the possession of the
defendant now. The defendant denies the plaintiff’s claim of land
ownership. Then the plaintiff must prove that he is the owner of the
land which is now in defendant’s possession.
The party must prove the disputed facts on his own right. He should not
rely on the weakness of the other party in disproving it. The law of
evidence specifically prescribes whom the burden of proof initially
lies on. This burden remains unchanged during the entire process trial.
Burden of proof lies on who would fail
On the other hand, the burden of proving the fact in a proceeding would
rest on the person who would fail if no evidence is given on either
side. This burden shifts from one party to the other during each stage
of the case. This is an ever changing burden. The Section 102 of the
evidence act deals with it.
For example, a plaintiff, on the basis of an agreement, files a money
suit against the defendant for his violation of the agreement. The
execution of the agreement is admitted by both the parties. But the
defendant pleads that the agreement is obtained by fraud and coercion.
If no evidence is given on either side the defendant would fail. If the
defendant wants to avoid failure in this case he has the duty to prove
with sufficient evidence that the agreement is fraudulent and made under
coercion. Therefore the burden of proving this case rests on the
defendant as he would fail if no evidence is brought in.
Burden of proof & Shifting onus of proof
The burden of proof includes two aspects: one is
the burden of bringing evidence before the court, and the other is
the burden of persuading the court by adducing evidence.
In the first sense the burden refers to the obligation of a party to
lead evidence of a particular fact in issue. It is the burden of going
forward with leading evidence or burden of production of evidence. This
can be referred simply as evidentiary burden. Lord Denning termed this
as legal burden. It is the party who comes with a case has to lead
evidence in the first sense. In this sense, the party has to introduce
In the second sense, the party has obligation to persuade the existence
or non-existence of the disputed fact in issue to the satisfaction of
the judge, as standard of proof demands. It is proving the fact in
issue. It is known as probative burden or ultimate burden. In this
sense the onus of proof shifts from time to time on either party at
every stage of trial. In this sense, the party has to prove the fact in
issue giving some contrary facts.
The essential distinction between the burden of proof and onus of
proof is that the burden of proof lies upon the person who has to
prove a fact. The burden never shifts. When the party gives some prima
facie evidence and the defendant wants to challenge it, the onus of
proof shifts from the plaintiff to the defendant.
The onus of proof is the responsibility that shifts from one party to
the other at every stage of the proceeding. Here the person who defends
must prove something better than what the other party has prima facie
proved. The onus of proof essentially refers to asserting some fact is
not true and then taking the burden of proving it further in a manner
satisfying to the court.
In essence the burden of proof is on the person who claims any fact
but the onus of proof is on the person who negates it. The onus of
proof shifts from one party to the other at every stage of the
Some illustrative instances
In a case, an applicant sues a defendant for a sum of Rs one lakh by
presenting some documents that prima facie prove the latter’s debt.
The defendant refutes the allegation of having any debt to the former.
The burden of proof now shifts from the applicant to the defendant as
the former prima facie proves the debt he claims. The defendant should
then prove that he does not owe any debt to the applicant. Suppose the
defendant admits the debt but argues that the suit is not within time
limit, then the applicant should prove that the suit is well within
Similarly, a lady files an application for maintenance against a person
alleging him as her husband. The defendant challenges the lady’s claim
of having a legally valid marriage. If the defendant’s challenge is true
he is not liable to pay her maintenance. Therefore the lady should prove
her claim that there exists a valid marriage between them.
In another example a defendant admits that the signature in a Will
propounded by the plaintiff is that of the testator. But the defendant
challenges that the signature was obtained under undue influence and
coercion, then the onus to prove the undue influence and coercion is
on the defendant.
When a party challenges his own earlier admission of any fact, then the
burden to prove that the earlier admission was erroneous is on the party
himself. A mere assertion by the party is not good enough to prove it
but the challenge needs to be proved by proper evidence. The other party
need not lead any evidence as the onus of proof is on the former.
In criminal trial the burden lies solely on the prosecution
In criminal trial, the burden of proving the guilt remains constantly on
the prosecution, except in legally specified situations. The burden does
not shift to the accused normally.
But when the accused has to prove something for his discharge the burden
is on the accused and the standard of proof in such matters will be
balance of probability. The standard required for prosecution evidence
is beyond all reasonable doubts.
Burden lies on whom a legal duty is cast upon
The burden of proving the existence of any fact lies on that person who
wants the court to believe that it exists. This is what Section 103 of
the evidence act states.
On the other hand, if any law precisely prescribes that any fact is to
be proved by a particular party in a case then the party should prove
it. The burden then lies on the party.
For example, in a case charged with the offence of cheating if the
defendant wants to make the court believe that it was an act with a
bonafide purpose not amounting to an offence, then the defendant must
prove the bonafide nature of the act. The burden of proving the
innocence as a protective tool is on the party who seeks protection
under it (see Section 111 of the act).
Similarly, if a person asserts that some person who is known to have
been alive within the last thirty years is dead, the onus of proving
that he is dead is on the person who asserts it (See Section 107 of the
act). But when a person has not been heard of by his close acquaintances
within last seven years it is presumed that he is dead. Then the person
who claims that he is alive should prove it See Section 108 of the act).
Need not prove facts known to other/ presumed by court
Even though a person who moves the court must prove all facts necessary
for that purpose he need not prove such facts which are within the
knowledge of the other party.
Similarly, he need not prove those facts which are presumed by the court
as per the law of evidence. The court presumes a series of things as
true, as provided for in the evidence act. The Section 114 of the
evidence act provides a list of such presumptions.
Differences in burden in civil & criminal cases
The burden of proof in civil and criminal case differs.
In a criminal case, the burden of proof is exclusively on the
prosecution, except in some statutorily prescribed matters. Therefore
the prosecution must prove the guilt beyond all reasonable doubts. It
cannot take advantage of the weakness of the accused or the inconsistent
stand taken by the accused. Rather the prosecution has to prove the
matter of its own.
The accused has no burden of establishing his innocence. What is needed
on the part of the accused is to raise doubts about the prosecution
version of evidence and nothing more. The accused can defend the case
with probable and possible versions of the crime on balance of
probabilities but need not prove anything beyond all reasonable
doubts. Even if the accused has to prove anything for rebutting any
fact for getting protection under statutory presumption under general
exceptions in Indian Penal Code, the standard of proof is not as heavy
as the one on the prosecution.
In a civil case, the burden of proof initially rests with the plaintiff
and then shifts from one party to the other till all evidence is brought
before the court. The standard being followed in civil case is
preponderance of probability.
Prove a previous fact to prove a dependant one
If a subsequent fact depends on a previous act, it is the duty of the
party who asserts the fact to prove the previous fact first and then the
subsequent one, as per Section 104 of the evidence act.
In a proceeding for divorce on the ground of desertion, the plaintiff
must prove the fact of desertion first to prove his case to obtain a
decree of divorce.
When prosecution wants to prove a dying declaration it must prove the
death of the person first.
Burden of proving the exceptions lies on the accused
When an accused pleads for protection under an exception under chapter
IV of Indian Penal Code, 1860 in a criminal case the onus of proving
that his offence falls within the exceptions is with him. The chapter,
by statutory prescription, imposes such a burden on the accused. The
court normally presumes non-existence of any exceptional circumstances
in any crime and the accused will have to prove it in order to get the
protection under the exceptional circumstance.
Therefore when a person accused of murder claims to be treated as
innocent by reason of his unsoundness of mind or sudden provocation that
is unmanageable by conscious mind, the burden of proving the unsoundness
or sudden provocation lies squarely on the accused.
The Section 105 of the evidence act deals with this matter.
Accused must prove innocence in grave offences
In the case of offences like terrorists attack, abetment to suicide,
dowry death and rape, the burden of proving the innocence is on the
accused, under Sections 111A (offences in disturbed area), 113A
(abetment to suicide by married woman), 113B (dowry death), and 114A
(absence of consent in rape) of the evidence act.
The prosecution has no burden of proving everything beyond all
reasonable doubt in such cases as they have in other criminal cases.
Burden lies on who knows the fact
The burden of proving any fact exclusively within the knowledge of a
person lies upon him. If a person does something with an intention which
is known only to him, the burden to prove that fact lies on him.
This section applies when the guilt is established by the prosecution
but the guilt can be nullified by law on account of some other facts
known only to the accused, then the accused has to prove such facts.
When the prosecution offers sufficient evidence to prove the guilt it is
the duty of the defendant to disprove the prosecution version with
counter veiling evidence if he knows such facts.
For example, when the prosecution establishes the guilt by cogent
evidence the accused can disprove it by raising a plea of alibi (the
accused is present elsewhere). The plea of alibi is a good ground to
prove the innocence of the accused. In such a case, the accused has the
burden to prove that he was elsewhere when the crime occurred.
The Sections 106 to 111of the evidence act provides for this aspect of
Statutory presumption must be rebutted
When the court presumes any fact brought before it as evidence it is the
duty of the other party to refute the fact with contrary evidence.
If any person is in possession of something it is naturally presumed
that he is the owner of it. Possession is a prima facie proof of
ownership. If someone else pleads that the possessor is not the owner of
it the burden of proving it lies on the person so pleads (Section 109 of
In case a cheque is issued for an amount there is a presumption of
consideration or liability in regard to that cheque. Then the burden of
proving that there was no liability is on the person issuing the cheque.
Conclusive proof as to child’s paternity
The birth of a child during the continuance of a valid marriage is a
conclusive proof of the legitimacy and paternity of the child.
The DNA test cannot rebut the conclusive presumption. The rigour of such
a conclusive presumption can only be rebutted by proving that both the
parents had no access to each other, as per the Section 112 of the
Issues framed must indicate whom the burden lies on
Every issue of fact shall be framed as to indicate whom the burden of
proof lies on. It should be couched in a language that indicates who
should bear the brunt of proving it. A judicial proceeding moves forward
only when there is any issue of fact or law on which the parties are at
variance. The parties engage in a case or dispute when there is some
claim or denial in regard to something. Issues indicating such disputes
should be framed as precisely as possible.
No proposition of fact, which is not material in nature, should be
framed as an issue. That means no unimportant claim or denial should be
made the subject of an issue in a case.
Every issue of law of law must be so framed as to indicate the
statement, pleading or reference sources which is to be relied on to
decide the question of law.
At the first hearing of the suit, the court shall elicit controversial
issues by orally examining the parties or any person who can answer any
material questions in the case. Issues are framed precisely to know
rival contentions. When the court wisely frames issues in tune with the
principles of evidence act it would help focus attention of the
proceedings on the relevant disputes alone. In the course of the
proceedings if the court finds that the issues need to be added to or
amended, it can do it at any stage before passing a decree.
Issues need not be framed to indicate onus of proof which shifts from
party to the other at every stage of leading evidence.
Knowing who should prove what fact in a court case is of utmost
importance for an advocate in winning a case in his favour. He must be
thoroughly familiar with the fact in issue that is in dispute between
the parties in the case.
The issues (charges) framed must indicate on what specific issues the
parties are in dispute or at variance. The issues while framing must be
couched in a language which suggests who should prove what in the case.
Asking wrong questions will always end up in wrong answers.
Unless the advocate is not thoroughly familiar with the clarity of
issues in dispute and the burden of proof on his part he would be moving
into unchartered waters.