JAMIA MILLIA ISLAMIA UNIVERSITY

NEW DELHI

PROJECT TITLE: BURDEN OF PROOF

SUBJECT: EVIDENCE

SUBMITTED TO: MR. GAURAV GUPTA

SUBMITTED BY- YASIR AHAMD

Semester- VIIth

B.A,LLB.(HONS.) S/F

1
 ACKNOWLEDGEMENT

Firstly, I would like to thank my Guide and faculty Mr. Gaurav Gupta for giving an opportunity
to undertake this work and successfully accomplishing the same.

I would also like to thank him for his valuable guidance and for being a solvency of inspiration
and encouragement enabling the work and to complete the work successful.

Last but not the least I would like to thank all the background supports who have spent their
valuable time to support me throughout my project work.

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 Table of Contents
Literature review .....................................................................................................4
Introduction ..............................................................................................................6
General Concept of Burden of Proof .....................................................................6
Statutory provisions under Indian Evidence Act, 1872 .......................................7
Rule 1 ........................................................................................................................................................ 7
Burden of Proof and Onus of Proof .......................................................................................................... 8
Rule 2 ........................................................................................................................................................ 8
Rule 3 ........................................................................................................................................................ 9
Rule 4: ....................................................................................................................................................... 9

Rules of Presumption –..........................................................................................10

Exceptions - ............................................................................................................................................ 10

Burden of proof in various contexts .....................................................................12

(1) Plea of alibi: ...................................................................................................................................... 12
(2) Food Adulteration: ............................................................................................................................ 12
(3) Election Petition: ............................................................................................................................... 12
(4) Constitutionality: ............................................................................................................................... 13
(5) Matrimonial Cases: ........................................................................................................................... 13
(6) Adoption ............................................................................................................................................ 14
(7) Blank Signature ................................................................................................................................. 14
(8) Benami Transaction........................................................................................................................... 14
(9) Departmental Proceedings ................................................................................................................. 14

Conclusion...............................................................................................................16
BIBLIOGRAPHY ..................................................................................................18

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 Literature review
HARVARD LAW REVIEW. (VOL.IV, MAY 15, 1890, NO. 2)
THE BURDEN OF PROOF

The burden of proof is a party’s responsibility to prove a disputed charge, allegation, or defense.
The burden of proof has two components: the burden of production and the burden of persuasion.
The burden of production is the obligation to present evidence to the judge or jury. The burden of
persuasion is the duty to convince the judge or jury to a certain standard, such as beyond a
reasonable doubt, which is defined shortly. This standard is simply a measuring point and is
determined by examining the quantity and quality of the evidence presented. “Meeting the
burden of proof” means that a party has introduced enough compelling evidence to reach the
standard defined in the burden of persuasion.

MERICAN LAW REGISTER (APRI 1870)

THE BURDEN OF PROOF IN CASES OF INSANITY
Who has the burden of proof with an insanity defense has been a source of controversy. Before, a
majority of states had the burden of proof rest with the state; that is, the prosecutor had to prove
that the defendant was not insane. The vast majority of states required the defense to prove that
the defendant was indeed insane. In states where the burden is on the defense to prove insanity,
the defense is required to show either by clear and convincing evidence or by a preponderance of
the evidence that the defendant is insane. In states where the burden is still on prosecutors to
prove sanity, they are required to prove it beyond a reasonable doubt.

The Burden of ProofPrepared by JACK LAZARUS, Australia, for the meeting of

Committee 6 at the Lisbon Conference, May 1981
(International Legal Practitioner, 1981, Vol. 6(ii) Printed in Great Britain)
The campaign in Australia against drug related crimes, heroin in particular, has the result that
people charged with trafficking or importing heroin are invariably convicted. The burden of
proof, being so well entrenched in the minds of not only Jurists brought up in the Common Law
traditions, but the people at large, is hard to openly attack. The sanctity of Mens Rea or the
objective standard of morality as an essential element of crime at Common Law has been
weakened in recent years. Nevertheless it has, forlong past, been firmly established as a cardinal
feature of the Criminal Law.

Burden of Proof by Louis Kaplow

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This Article examines how strong evidence should have to be in order to assign liability when
the objective is to maximize social welfare. In basic settings, there is a tradeoff between
deterrence benefits and chilling costs, and the optimal proof requirement is determined by factors
that are almost entirely distinct from those underlying the preponderance of the evidence rule and
other traditional standards. As a consequence, these familiar burden of proof rules have some
surprising properties, as do alternative criteria that have been advanced. The Article also
considers how setting the proof burden interacts with other features of legal system design, such
as the determination of enforcement effort and the degree of accuracy of adjudication.

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Introduction
A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact1.

Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it
can define which party bears this burden. In criminal cases, the burden of proof is placed on the
prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or
her. But in some jurisdiction, the defendant has the burden of establishing the existence of
certain facts that give rise to a defense, such as the insanity plea. In civil cases, the plaintiff is
normally charged with the burden of proof, but the defendant can be required to establish certain
defenses2.

Burden of proof can also define the burden of persuasion, or the quantum of proof by which the
party with the burden of proof must establish or refute a disputed factual issue. In criminal cases,
the prosecution must prove the defendant's guilt Beyond a Reasonable Doubt.

General Concept of Burden of Proof

The responsibility to prove a thing is called burden of proof. When a person is required to prove
the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case,
many facts are alleged and they need to be proved before the court can base its judgment on such
facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant
facts in a case to the required degree of certainty in order to prove its case. For example, in a case
of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All
such conditions are facts in issue and there is an obligation to prove their existence. This
obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor
or against his opponent, this obligation is nothing but burden of proof. Section 101 defines

1
Dr. V. Krishnamachari, Law of Evidence, (7thed ,S.Gogia&Co., Hyderabad, 2010)
2
Scheibe, Benjamin D. 2003. "Claim of Reverse Engineering Doesn't Alter Burden of Proof." The Los Angeles Daily
Journal 116 (October 2).

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burden of proof as follows - When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.

The important question is who is supposed to prove the various facts alleged in a case. In other
words, on whom should the burden of proving a fact lie? The rules for allocation of burden of
proof are governed primarily by the provisions in Section 101 to 105. The rules propounded by
these sections can be categorized as General rules and Specific rules.

Statutory provisions under Indian Evidence Act, 1872

Rule 1: As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says
that whoever desires any Court to give judgment as to any legal right or liability dependent on
the existence of facts which he asserts, must prove that those facts exist3. For example, A desires
a Court to give judgment that B shall be punished for a crime which A says B has committed. A
must prove that B has committed the crime. Another example - A desires a Court to give
judgment that he is entitled to certain land in the possession of B, by reason of facts which he
asserts, and which B denies, to be true. A must prove the existence of those facts.

Facts can be put in two categories - those that positively affirm something and those that deny
something. For example, the statement, "A is the owner of this land" is an affirmative statement,
while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the
person who asserts the affirmative of an issue the burden of proof lies on him to prove it. Thus,
the person who makes the statement that "A is the owner of the land", has the burden to prove it.
This rule is useful for determining the ownership of the initial burden. Whoever wishes the court
to take certain action against the opposite party based on certain facts, he ought to first prove
those facts.

3
Singh Avtar, Priniciples of the Law of Evidence, (8 thed, Central Law Publications, Allahabad 2007)

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However, it is not very simple to categorize a fact as asserting the affirmative. For example, in
the case of SowardvsLegatt4, 1836, a landlord suing the tenant asserted that the tenant did not
repair the house. Here, he was asserting the negative. But the same statement can also be said
affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that in
ascertaining which party is asserting the affirmative the court looks to the substance and not the
language used. Looking at the substance of this case, the plaintiff had to prove that the premises
were not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to begin
who in substance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a matter of
law and pleading, and the burden of proof as a matter of adducing evidence also called as onus.
There is a subtle distinction between burden of proof and onus of proof, which was explained in
the case of RanchhodbhaivsBabubhai5. The first one is the burden to prove the main contention
of party requesting the action of the court, while the second one is the burden to produce actual
evidence. The first one is constant and is always upon the claimant but the second one shifts to
the other party as and when one party successfully produces evidence supporting its case. For
example, in a case where A is suing B for payment of his services, the burden of proof as a
matter of law is upon A to prove that he provided services for which B has not paid. But if B
claims that the services were not up to the mark, the onus of burden as to adducing evidence
shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims
that the services were provided as negotiated in the contract, the onus again shifts to A to prove
that the services meet the quality as specified in the contract..

Rule 2: Determines who has the onus of proof.As per Section 102, the burden of proof in a suit
or proceeding lies on that person who would fail if no evidence at all were given on either side.
The following illustrations explain this point -

4
SowardvsLegatt, 1836
5
AIR 1982 Guj 308

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Illustration 1:

A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will
of C, B's father. If no evidence were given on either side, B would be entitled to retain his
possession. Therefore the burden of proof is on A.

Illustration 2:

A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was
obtained by fraud, which A denies. If no evidence were given on either side, A would succeed,
as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

Rule 3:

As per Section 103, the person who wants the court to believe in an alleged fact is the one who is
supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on
any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that
B admitted the theft to C. A must prove the admission. Another example - B wishes the Court to
believe that, at the time in question, he was elsewhere. He must prove it. Further, as specified in
Section 104, if a person wants the court to believe in a fact that assumes the existence of another
fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying
declaration by B. A must prove B's death. A wishes to prove, by secondary evidence, the
contents of a lost document. A must prove that the document has been lost.

Rule 4:
These rules specifically put the burden on proving certain facts on particular persons. As per
Section 106, when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. When a person does an act with some intention other than that
which the character and circumstances of the act suggest, the burden of proving that intention is

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upon him. For example, A is charged with traveling on a railway without a ticket. The burden of
proving that he had a ticket is on him.6

Rules of Presumption –

Section 107 and 108 say that if a person was known to be alive within 30 years the presumption
is that he is alive and if the person has not been heard of for seven years by those who have
naturally heard from him if he had been alive, the presumption is that the person is death. But no
presumption can be draw as to the time of death. Sections 109 establishes the burden in case of
some relations such as landlord and tenant, principle and agent etc. Further sections specify the
rules about burden of proof in case of terrorism, dowry death, and rape.

Exceptions -
1. Presumed Innocence: It is the prosecution who is required to establish the guilt of the
accused without any doubt. At the same time, the accused is not required to prove his innocence
without any doubt but only has to create reasonable doubt that he may not be guilty. Section 105
specifies an exception to this general rule. When an accused claims the benefit of the General
Exception clauses of IPC, the burden of proving that he is entitled to such benefit is upon him.
For example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused
to prove that he was insane at the time of committing the crime.

In the case of K M Nanavativs State of Maharashtra7, SC explained this point. In this case,
Nanavati was accused of murdering PremAhuja, his wife's paramour, while Nanavati claimed
innocence on account of grave and sudden provocation. The defence's claim was that when
Nanavati met Prem at the latter's bedroom, Prem had just come out of the bath dressed only in a
towel; an angry Nanavati swore at Prem and proceeded to ask him if he intends to marry Sylvia
and look after his children. Prem replied, "Will I marry every woman I sleep with?", which

6
http://hanumant.com/LOE-Unit11-BurdenOfProof.html
7
AIR 1962 SC 605

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further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown packet, Nanavati too
went for it and in the ensuing scuffle, Prem's hand caused the gun to go off and instantly kill him.

Here, SC held that there is a presumption of innocence in favor of the accused as a general rule
and it is the duty of the prosecution to prove the guilt of the accused beyond any doubt. But when
an accused relies upon the general exception or proviso contained in any other part of the Penal
Code, Section 105 of the Evidence Act raises a presumption against the accused and also throws
a burden on him to rebut the said presumption. Thus, it was upon the defence to prove that there
existed a grave and sudden provocation. In absence of such proof, Nanavati was convicted of
murder.

2. Admission: A fact which has been admitted by a party and which is against the interest of that
party, is held against the party. If the fact is contested by the party, then the burden of proof rests
upon the party who made the admission. For example, A was recorded as saying that he
committed theft at the said premises. If A wants to deny this admission, the burden of proof rests
on A to prove so.8

3. Presumptions: Court presumes the existence of certain things. For example, as per Section
107/108, court presumes that a person is dead or alive based on how long he has not been heard
of. Section 109, presumes that when two people have been acting as per the relationship of
landlord - tenant, principle - agent, etc, such relationship still exists and anybody who contends
that such relationship has ceased to exist has to provide proof. Section 110 presumes that the
person who has the possession of a property is the owner of that property. As per Section 113A,
When the question is whether the commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that she had committed suicide within a
period of seven years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by such relative

8
C.L. Subramaniam v. Collector of Customs, AIR 1972 SC 2178

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of her husband9. As per Section 113B, when the question is whether a person has committed the
dowry death of a woman and it is shown that soon before her death such woman had been
subjected by such person to cruelty or harassment for, or in connection with, any demand for
dowry, the court shall presume that such person had caused the dowry death.Thus, when the
presumption of the court is in favor of a party, the burden of disproving it rests on the opposite
party.

Burden of proof in various contexts

(1) Plea of alibi:

Where the accused raises the plea of alibi(his presence elsewhere) burden lies on him to
substantiate that fact that atleast to that extent of a reasonable probability. Even if the evidence
producedis capable of creating a doubt whether the accused was there at the time of the
happening, he becomes entitled to benefit of doubt.10The court cited the decision of Supreme
Court in Soma Bhai v. State of Gujrat11 where it was taken to be a settled law that a plea of alibi
has got to be proved to the satisfaction of the court. The court also noted that the burden of
substantiating such aplea and making it reasonably probable is on him.

(2)Food Adulteration:
Where a person is charged under Prevention of Food Adulteration Act,1954 for selling sub-
standard Heeng, and it was shown by him that the article was meant for animal consumption, the
pricing factor as well as report of the public analyst showed that it was being marketed for use of
animals, the court said that the burden to show otherwise was upon the food inspector who had
taken the sample from the accused12.

(3) Election Petition:

When an election is challenged on the ground that the result was vitiated by the fact that the
nomination of a candidate wrongly accepted, the Supreme Court held that the burden lay upon

9
Anil Kumar v. Presiding Officer &Ors., AIR 1985 SC 1121
10
Jagarnathgiri v State of Bihar, 1992 CrLJ 648 Pat.
11
AIR 1975 SC 1453
12
Rajesh Kumar v. State of UP, 2001 CrLJ 2093(All)

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the petitioner that the votes cast on favour of the wrongly accepted candidate would have gone I
his favour to such an extent that he would have been returned and that though this fact is very
difficult to prove the rules relating to burden of proof will remain whether it is difficult or
virtually impossible to prove the fact in question13.

(4) Constitutionality:
In the petition challenging the constitutionality of a statute, the allegations regarding the
violation of the constitutional provisions should be specific, clear and unambiguous and burden
of proof is upon the person challenging its constitutionality. In the case of Gauri Shankar v.
Union ofIndai14a, the Supreme Court held that:

(a) there is always a presumption in the favour of constitutional validity of an enactment and the
burden is upon him who attacks it to show that there has been clear transgression of the
constitutional principles,

(b) it must be presumed that the Legislature understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made manifest by experience and that its
discrimination is based on adequate grounds,

(c) in order to sustain the presumption of constitutionality the court may take into consideration
matters of common knowledge, matters of common report, the history of the times and may
assume every date of facts which can be conceived existing at the time of the legislation.

(5) Matrimonial Cases:

In matrimonial cases principle of burden of proof relating to civil cases are applicable 15. Rules of
evidence in divorce cases are the same in other civil matters, namely, decisions go by
preponderance of probability. But even so the initial burden is on the petitioner. A party seeking
divorce has to prove the fact that the same was without cause, even if the party going apart is not
liable to justify her conduct. It is the duty of the husband to pay for the medical examination of
the wife and if she did not get costly medical aid for wants of funds, no adverse inference could

13
Shiv Charan Singh v. Chandra Bhan Singh, AIR 1988 SC 637
14
1994 AIR SCW 4059
15
A v. B, AIR 1985 Guj 121

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be drawn against her16. In the instant case the husband sought divorce on the ground of mental
disorder of the wife.

(6) Adoption
An onus of grave and serious matter lies on the person who alleges adoptionbecause the fact of
adoption changes rights of succession to property17.Where there was no evidence about
consultation between natural and adoptive fathers, no material witness were examined and there
was inconsistency about the ceremonies performed, the adoption was held to be doubtful18.

(7) Blank Signature

Where the defendants said that he had put his signature only on the blank paper, it was held that
the evidence adduced by the plaintiff to the effect that the defendant has executed a document, if
found reliable, would discharge the burden of the plaintiff and put the burden on the defendant to
show that he has not executed any document19.

(8) Benami Transaction

When a person purchases a property in another person’s name and also gets it registered in that
person’s name , if subsequently he wishes to assert his ownership, the burden would be upon him
to prove that fact. In case of this kind, the Supreme Court observed as follows:

“It is well settled that burden of proving that particular sale is benamiand the apparent purchaser
is not the real owner, always rests on the person asserting it to be so. The essence of a benami is
the intention of the parties concerned;and not often such intention is shrouded in a thick veil
which cannot be easily pierced through. But such difficulties do not relieve the persons asserting
the transaction to be a benami of the serious onus that rests on him, nor justify the acceptance of
a mere conjecture or surmises, as a substitute for proof.”

(9) Departmental Proceedings

Evaluation of evidence is a judicial process and arbitrariness is surely not allowed. Although the
Indian Evidence Act is not applicable in the departmental proceedings, its provisions have to be
noticed during evaluation of evidence; albeit not with the same rigour as done in courts of law.

16
Rekha v. Ravindra Kumar, AIR 1994 NOC 330(MP)
17
Bhuvenshwar Prasad v. State of Bihar AIR 1995 OrI 32
18
Bijaya Kumar Chaul Singh v. State of Orrisa, AIR 1994 NOC 41(Ori)
19
KuttadanVelayudhan Re, AIR 2001 SC 123

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The Supreme Court observed in Union of India v. HC Goel20 that “mere suspicion should not be
allowed to take place of proof even in domestic inquiries” and also that “the principle that in
punishing the guilty scrupulous care must be taken to see that the innocent are not punished,
applies as much to regular criminal trials as to disciplinary inquiries.”

InState of Haryana v. Rattan Singh21, the Supreme Court stated that; “The essence of a judicial
process is objectivity, exclusion of extraneous materials or considerations and observance of
rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or
surrender of independence of judgementvitiate the conclusions reached, such finding, even
though of a domestic tribunal, can not be held good.” The following established norms and
principles are practiced in departmental inquiries to appreciate and evaluate evidences.

1. Inquiry report must be based on records of the case alone.

The deliberations in the report must remain confined to the records of inquiry which consist of
the Charge-sheet, Reply thereto, Original documents relied upon by prosecution as well as
defence, written briefs filed by both parties summing up their respective cases in their own way,
depositions of witnesses produced by both sides, statement of charge-sheeted employee and his
answers to questions put by inquiry officer. Inquiry officer can neither leave out anything from
these records nor can consider anything out of the records. All public servants can claim the
constitutional guarantee provided to civil servants under article 331 that any penalty can be
imposed only on the basis of evidence adduced during the course of inquiry.

2. Material collected behind the back of accused can not be used by Inquiry Officer.

Supreme Court has clearly held in State of Assam v. MK Das22 and Union of India v. Ramzan
khan23 that any information not collected and put to the charged employee during the course of
inquiry can not be used by inquiry officer for drawing his inferences.

3.For drawing his inferences.

20
AIR 1964 SC 364
21
AIR 1977 SC 1512
22
AIR 1970 SC 1255
23
1991 (1) SLR 159

15
Inquiry Officer cannot use his personal knowledge of the case or of persons involved. His
findings must be free from personal bias.

4. Assessment is to be made only of the points at issue.

5. The burden of proof is on the employer.

The Orissa High Court, in Radhakrishna v. State24 observed that “… a tribunal is wrong if it
places the burden of establishing his innocence on the public servant” and charge has to be
proved against delinquent and it is not for the delinquent to absolve himself from the charge’.
But it is necessary to understand that the prosecution is bound to prove those facts which are
necessary to prove the allegations made against employee. The burden of proving essential facts
relating to his version of things lie on employee. For example, in case of a charge of
misappropriation of funds; prosecution is bound to prove that the money in question was
entrusted to the charge-sheeted employee. After that, it is for the employee to prove that he
applied the money for the purpose for which it was entrusted to him. This understanding is
necessary because, in the departmental inquiry, the case of prosecution fails, no doubt, if the
basic facts relating to charge are not proved. But, if basic facts of charge as well as certain facts
related to the version of employee are also proved; the final findings shall be arrived using the
preponderance of probability standard of proof applicable for such inquiries.

6. Guilt is not there if charges not proved. In keeping with The Supreme Court observation in
Union of India v. HC Goel25 that the principle of taking care so that the innocent are not
punished, applies to disciplinary inquiries; the inquiry officer cannot report finding of guilt if the
burden of proof has not been discharged by the prosecution and the articles of charge have not
been proved in accordance with the standard of proof required in such inquiry.

Conclusion
The burden of proof lies on the party who substantially asserts the affirmative of the issue and
not upon the party who denies it. This rule of convenience has been adopted in practice, not
because it is impossible to prove a negative but because the negative does not admit of the direct

24
1977 SCR (3) 249
25
AIR 1964 SC 364

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and simple proof of which the affirmative is capable. It means sometimes that that a party is
required to prove an allegation before judgment can be given in its favour; it also means that on
contested issue one of the two contending party has to introduce evidence.

17
 BIBLIOGRAPHY

Books Referred:

1) Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia&Co.), 2010

2) Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications),
2007

3) DhirajLal&Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa& Company), 2008

WEBSITES:

1) www.manupatra.com
2) www.heinonline.com
3) www.westlawindia.com
4) www.indiankanoon.com

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