Burden of Proof under Indian Evidence Act


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 proceeding.

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 act says.

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 evidence.

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 some evidence.

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 evidence.

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 time.

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 burden.

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 the act).

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 evidence act.

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.