Which of the contesting parties should provide evidence in a judicial
proceeding is determined on the basis of some judicial principles that
are laid down in the Indian Evidence Act. This write up is exclusively
about such principles included in Part III of Indian Evidence Act.
Who holds the burden of providing evidence?
First of all, the burden of providing evidence rests on the person who
asserts anything in the court and not on who denies it. This burden
remains constant and never shifts at all.
Then the burden of providing evidence in a suit or proceeding lies on
the person, who would fail if no evidence is given on both sides. This
burden shifts from one side to another in the course of the proceedings
or at every instance of providing evidence.
Then the burden of providing evidence lies on the person who wants the
court to believe something unless law has prescribed something
different. In order to make some evidence provided by someone
admissible, it is quite necessary to prove beforehand that he is
entitled to give that evidence.
The burden of proving an exceptional circumstance in an offence, such as
unsoundness of mind of the accused or grave and sudden provocation,
provided for in the Indian Penal Code or any other penal law rests upon
Whenever any fact is within the knowledge of a person, the burden of
proving the fact rests upon that person.
If a person is shown to be alive within 30 years, the burden of proving
that he is not alive is on the person who affirms it.
On the other hand, if a person has not been heard of for seven years by
those who would naturally have heard of him, the burden of proving that
he is alive is on the person who affirms that he is alive.
Some judicial presumptions
If some relationship like that of partners in a partnership, landlord
and tenant in a tenancy relation, principal and agent in a contractual
relation etc is in question in a proceeding, then there will be a
judicial presumption that such a relationship continues to exist till
the contrary is proved by the person who affirms it.
When a person is in possession of a property, the burden of proving that
he is not the owner of it is on the person who affirms that the person
is not its owner.
The good faith in a transaction, such as a sale, between parties has to
be proved by the person who stands to the other in a position of active
confidence in the bonafide nature of the transaction.
If a child is born within 280 days after the divorce of the spouses, it
is a conclusive proof that it is a legitimate child. The presumption
will not hold good if it can be proved that the husband and wife had no
access to each other during those days.
In the case of some offences like terrorists attack, abetment of suicide
by a married woman, dowry death of a woman, and absence of consent in a
rape case, coming under sections 111A, 113A, 113B & 114A of the Indian
Evidence Act respectively, the burden of proving lies squarely on the
Estoppel not acceptable
Estoppel means disallowing to say (taking a stand about) one thing at a
time and the opposite of it at another time.
In providing proof, a party in a judicial proceeding shall not be
allowed to say one thing at a time and the opposite of it at a later
time. Therefore when a person makes others believe one thing in a
proceeding, he cannot deny it at a later stage.
Different types of estoppels
When a consented matter is settled in a competent court, the parties are
precluded from re-agitating the matter afresh by taking a fresh stand.
This is called estoppels by record or res judicata.
A person who stated something in a deed cannot deny it and assert
something else. This is called estoppels by deed.
A person who claims as a tenant cannot deny later that the landlord had
no title at the time of the tenant’s entry by a licence into the tenancy
Similarly, the acceptor of a bill of exchange cannot say that the drawer
had no authority to draw the bill or endorse it.
Competency of a witness
In general, all persons are legally competent to give evidence. But in
the case of a child or a lunatic person the court will conduct a
precursor test to identify whether the witness has competency to give
evidence. The preliminary enquiry is called voire dire test. In this
test, the judge will put some general questions to the individual so as
to test the witness’s competency.
Compelling a witness to provide evidence
Any person is competent enough to testify as a witness unless he/she
suffers from problems like inability to understand the questions being
so young or quite old in age, or unsoundness of mind etc.
Any competent witness can be compelled by the court to answer any
question put to him. However a competent witness cannot be compelled to
answer some questions which are privileged. For example a husband and
wife are generally competent witnesses. But they cannot be asked to
disclose the communications in a matrimonial relation between them,
which are privileged, except in suits or proceedings between spouses in
a marriage. No communication of whatsoever nature made between them
shall be compelled to be disclosed without consent of the concerned
party in any other kind of suit or proceeding. The privilege exists even
Similarly, a judge cannot be compelled to answer any question regarding
anything which came to his knowledge as a judge, without an order of a
superior court to which he is subordinate. But he can be questioned
about something he witnessed while he was acting as a judge.
Ban on disclosing official records
No officer is allowed to give evidence regarding unpublished official
records relating to any affairs of the State, without obtaining
permission of the Head of the Department. An officer shall not be
compelled to disclose any communication made to him in official
confidence, if he considers such disclosure would go against public
A magistrate or officer shall not be compelled to answer the source of
his information regarding the commission of any offence. Similarly, a
revenue officer should not be asked to disclose the source of
information regarding the offence against public revenue.
Professional communications between the lawyers and the clients is
insulated from disclosure. But any communication pertaining to any
illegal action between them is not at all precluded from disclosure.
Information on any crime committed by the legal counsel during his
engagement as an advocate is also not protected.
Examination of witnesses
The party on whom the burden of proof lies should begin examination of
witnesses by calling his witnesses - this is called
Then, the opposite party should examine the witness - this is called
Thereafter, the party who called him for Examination-in-Chief can
re-examine the witness on answers given in Cross Examination.
In Examination-in-Chief, a witness may be asked questions relating to
relevant facts and facts in issue. Leading questions are not allowed to
be asked in Examination-in-Chief. Questions that are irrelevant can also
be asked if they are useful in corroborating the testimony of the
When the witness gives in answer any fact including a relevant fact, he
can be questioned as to any circumstance which occurred around such time
or place of occurrence of the fact. This is permitted only when the
court is of the opinion that such circumstances would help in
corroborating the testimony of the witness to the fact in issue.
However, a statement of witness made to a police officer shall not be
used for such corroboration.
No leading question is allowed in Examination-in-Chief if the other
party objects to it. But it can be asked when the court permits it. The
court usually permits leading questions in matters of introductory
nature or of already proved facts. But in re-examination, no leading
question is allowed.
A party calling a witness can cross examine him when the witness turns
hostile. A witness can be allowed to refresh his memory by looking at
the records made by him at the time of the transaction in question. The
other party should be shown the record if they demand.
Cross Examination is the most fruitful test to discover the truth. But
relevant facts alone must be enquired into in the process.
In cross examination, a witness can be asked questions regarding his
previous statements in writing, by showing or without showing the
record. The scope of cross examination is limited generally to relevant
facts alone, but some other facts may also be asked to test his
Harassing the witness
The court can direct the witness not to answer any question asked by the
counsel exclusively to harass him or injure his character. The court can
forbid any question which is needlessly offensive, even if it is a
However the credibility of any witness can be impeached by proving that
the witness is bribed or his statement is inconsistent with the former.
The purpose of re-examination is to afford the party an opportunity of
explaining the inconsistencies made in the cross examination. If a new
matter is asked in re-examination the adverse party has a right to cross
examine him on that particular point.
Judge’s power to ask questions
At any stage of the proceeding, the judge has the power to ask any
question on relevant or irrelevant facts to the party about anything, in
any form so as to obtain proof of any relevant fact. He can also order
the production of any document or thing. The parties can neither object
nor cross examine the witness, on such questions. However, the judge
cannot compel a party to answer a particular question or produce a
particular document which he refuses to answer or produce, as it is a
A trial judge is not a mute or blind spectator, nor is he a dynamic
functionary. He asks questions so as to get evidence in a detached and
dispassionate manner with the object of ascertaining truth of the
disputed matter. It is an extraordinary power, but the judge should not
usurp the power of a counsel. Every trial is a voyage in search of
truth. If prosecution fails to do its duty the trial court should be
vigilant enough to put such questions to discharge its duty.
No criminal action on witness
No criminal action can be taken on any witness for any answer he gave in
a witness deposition, except for the offence of giving false evidence.
Therefore, a witness cannot be excused from answering any relevant
question fearing that he will be incriminated for telling anything as
part of witness examination.
A person, who is not a party to suit, cannot be compelled to produce any
document that would criminate him unless he has agreed to produce them.
Improper admission and rejection of evidence
A court of appeal or revision should not disturb a decision of the lower
court on the sole ground that there was improper admission or rejection
of proper evidence at the trial stage, if there are sufficient other
independent materials to prove the decision in the judgment. That means,
improper admission or rejection of evidence alone is not a sufficient
ground to allow a new trial or reversal of any judgment.
The law of evidence plays a great role in administration of justice. For
that it is essential to provide reliable, relevant and admissible
evidence to establish the substantive rights of the contesting parties
in a court of law. The law makes the job of providing evidence