Burden of Proof and Presumptions under Law of

Evidence
(Assignment towards the partial fulfilment of assessment for the course of law of evidence)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SEMESTER
(JANUARY-MAY, 2019)

Submitted By Submitted To

Pranav Karwa Mr. Aditya Rathore

Roll No. 1515 Faculty of Law
B.B.A. LL.B.(Hons.)
4TH Semester
 INTRODUCTION

Chapter VII of part III of the Evidence act deals with, on which party does the burden of proof
lie and presumptions. It is to be noted that the term burden of proof is not defined in the Indian
evidence act; in simple terms it means responsibility to prove the fact in the case.

BURDEN OF PROOF as provided under section 101-111

According to section 101 of the Indian Evidence Act 1872, the party who asserts the
affirmative of an issue, to make the court give a judgment on the basis of those facts,
carries the burden of proof to prove them; it is easier to prove the affirmative than the
negative. The affirmative in issue should not be in form or grammar but in substance.The
expression ‘burden of proof’ has two meanings, legal burden and evidential burden. In a criminal
trial, the accused is considered to be innocent until proven guilty and the prosecution carries the
burden to prove his guilt. This burden to prove everything essential against the accused is the
legal burden and it never shifts.1

Section 102 tries to locate the party on which the burden of proof lies. It says that the burden
shall lie on the party which shall fail if no evidence were given from either side. 2 Hence, this
section focuses on the evidential burden or the ‘onus of proof,’ while section 101 deals with the
legal burden or the burden of proof relating to law or procedure. This type of burden of proof is
unstable and it keeps on shifting form one party to other.

Reverse burden –

In criminal cases legal burden or burden of proof rests on the prosecution and it never shifts to
the accused. However, in cases of reverse burden, the law places the initial legal burden on the
accused to prove that he is innocent and it requires the accused to prove his innocence on balance
of probabilities.

In case of Noor Agra v State of Agra, the constitutionality provisions of section 35 and 54 of
NDPS act , 1985 were in question as they imposed reverse burden on accused. It was held by
court that a legal provision does not become unconstitutional only because it provides for a
reverse burden. The question as regards burden of proof is procedural in nature. Presumption is
raised only when certain foundational facts are established by the prosecution. The provisions of
Section 35 of the Act as also Section 54 thereof, in view of the Court, therefore, cannot be said to
be ex facie unconstitutional.

1
Section 101 of Indian Evidence Act
2
Section 102 of Indian Evidence Act
Section 103 states that the burden of proof, regarding any particular fact, shall lie on that
person who wants the court to believe in its existence, unless, the law requires some
particular person to prove that fact.3 It differs from section 101 as under 101, party has to
prove the whole of facts, whereas under 103 provides for proof of some particular fact.

Section 104 states that when the admissibility of one fact depends on another fact, the party who
wants to admit such fact must prove the other fact on which admissibility depends.4

Section105 only applies to criminal cases. If an accused has been established to be guilty of
an offence and he takes the defence of any of the general exceptions mentioned in the
Indian Penal Code, 1860 or any other defence provided in any act within which the offence
committed comes under, he has to prove it.5

In Dayabhai v State of Gujarat6, the Supreme Court held that it is the duty of the prosecution to
establish, beyond reasonable doubt that the accused committed the offence. If the accused pleads
insanity, it is his duty to prove so and his burden of proof is not as high as that of the
prosecution. If the evidence provided by the accused does not create an absolute doubt, but even
a reasonable one, regarding the ingredients of an offence, he could be acquitted.

Brief factual score: The accused-appellant husband in this case was sleeping with his wife in a room
which was locked from inside. Cries were heard later when it was heard that the wife was stating that
she was being killed. Moments later, she was found killed and the appellant was charged with the
murder of his wife. It then said that the general burden of proof is on the prosecution which does not
ever shift. However, analyzing an interplay between section 84 of Indian Penal Code, 1860 and section
105 of the Indian Evidence Act, 1872, is was held that it is the accused who has to now rebut the
presumption that there was no insanity.

Section 106 states if any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. 7 The principle behind this section is an application of the
maxim, res ipsa loquitur.   Section 106 is an exception to general principle laid down in section
101.

Linkage with the last seen theory:

3
Section 103 of Evidence act
4
Section 104 of Evidence act
5
Section 105 of Evidence Act
6
AIR 1964 SC 1563
7
Section 106 of Evidence Act
The concept of specific burden as given under section 106 is related to the doctrine of last seen. The
doctrine of last seen provides that where two persons were last seen together alive, and then when
death of one of them took place after a short interval, and without foreign intervention, the person
alive, shall be so deemed to be the author of the death of the deceased. It is the fact that the person
who was last seen with another person was in the possession of special knowledge that the
presumption works against him casting upon him the burden of proof.

Last seen theory cases under section 106:

In State of Rajasthan v kasha ram,8  Court held that, if a person is last seen with the
deceased, he must offer an explanation which appears to the Court to be probable and
satisfactory. Section 106 of the Evidence Actlays down the rule that when the accused does not
throw any light upon facts which are specially within his knowledge and which could not support
any theory or hypothesis compatible with his innocence, the Court can consider his failure to
adduce any explanation, as an additional link which completes the chain.

In State of Uttar Pradesh v. Rajesh Talwar9 the issue was, whether the learned Trial Judge
has rightly applied Section 106 of the Indian Evidence Act to the facts and circumstances of
the present case while convicting the appellants of the double murder of their daughter
Aarushi and their domestic help Hemraj, Section 106[ii] Verdict and reasoning: The court while
dealing with section 106 of the Indian Evidence Act stated that when dealing with the doctrine of last
seen, there should be no foreign intervention. The interval should be short, and should not warrant any
external involvement. There is also a requirement of close proximity between the incident and the time
when they were last seen. Relying on the facts, it was said that the murder took place midnight. The
appellants and the two deceased were last seen together, and there was no scope for any external
agent to have entered the transaction.

In case of Trimukh Maruti Kirkan v State of Maharashtra,10 the Supreme Court laid down
the principle regarding burden of proof in last scene cases

[III] Case: Trimukh Maroti Kirkan v. State of Maharashtra

8
2006 (11) TMI 660
9
2017 5 SCC 451
10
2006 10 SCC 681
[i] Issue in brief: The issue in brief in this case was that there was a missing link between the evidence
chains after the deceased was last seen together with the accused, and the discovery of the dead body.
The court, while answering that thus, expounded on what the law was: 11

[ii] Held: It was held by the court in this case that burden of proof is generally on the prosecution.
However, presumptions as it was held also play a vital role and are not alien to the concept of burden of
proof. It was held that the victim was abducted in this case, and was found dead shortly after that. The
presumption was therefore against the accused, which he had to now rebut. The period was determined
to be short, and so the burden was cast upon the accused.

In Ashok v. State of Maharashtra,12 the court laid down the evidentiary value of the last
seen doctrine, court held that: the rule can be summarized as that the initial burden of proof is
on the prosecution to bring sufficient evidence pointing towards guilt of accused. However, in
case of last seen together, the prosecution is exempted to prove exact happening of the incident
as the accused himself would have special knowledge of the incident and thus, would have
burden of proof as per Section 106 of Indian Evidence Act. Therefore, last seen together itself
is not a conclusive proof but along with other circumstances surrounding the incident, like
relations between the accused and the deceased, enmity between them, previous history of
hostility, recovery of weapon from the accused etc., non-explanation of death of the
deceased, may lead to a presumption of guilt.

[IV] Case: Ashok v. State of Maharashtra

[i] Brief factual score: The facts here were that the accused appellant was charged with the murder of
his wife and two daughters. He had taken a half-day leave to go out with the three deceased. His version
of the story was that he dropped them at the gas station and went to get the fuel. When he returned,
they were found missing. He was last seen with them, and there was a short interval of about fifteen
minutes after which he found them missing. 13

[ii] Court while dealing with the issue of whether the burden shifts in case of last seen theory: The
question before the court here was whether or not the burden shall shift. It was observed by the court
that the burden of proof shifts in cases of doctrine of last seen. It was observed by the court that
generally it is because the accused has special knowledge of the facts that the burden shifts onto him
11
Trimukh Maroti Kirkan v. State of Maharashtra, AIR 1997 SC 1830.
12
2015 4 SCC 393
13
Ashok v. State of Maharashtra.
since he is usually the one who is last seen with the deceased, and since only he could have known what
exactly happened. However, the court here observed that that is not a conclusive proof. There has to be
an existence of other facts such as the hostility between the people, the enmity or perhaps the
existence of weapons which has to be proved by the prosecution. Complete burden cannot be shifted
onto the accused having special knowledge.

Section 107 lays down a presumption that a man would be considered alive, up to 30 years,
after he was last seen or heard of.14 This shall be presumed if the question in issue is whether a
man is alive or dead and the burden of proving that the man is dead is on the person affirming it.

Section 108 states that if a person who has disappeared and has been unheard of for seven
years by those who would naturally have heard of him, if he were alive, that person would
be presumed to be dead.15 This presumption arises when a question of him being alive or dead
arises in the court. Hence, if the court adopts the presumption, the party who claims that the
person is alive has to prove it. It is a simple presumption of death and not the time of death.

Section 109 states that when a question arises as to whether certain persons are partners,
landlord and tenant or principal and agent and it has been shown that they have been
acting as such; the court presumes them to be so related. 16If a person denies the relationship
or affirms that the same has been ceased, the burden of proof to prove that they were never
related or have ceased to relate lies on him. Hence, the court presumes the existing status quo or
in the continuity of things.

Section 110 simply states that if the question is whether a person is the owner of anything
of which he is shown to be in possession, the burden of proving that he is not the owner is on
the person affirming that he is not the owner.17

14
Section 107 of evidence act
15
Section 108 of evidence act
16
Section 109 of evidence act
17
Section 110 of evidence act
Section 111 states that if a person enjoys the active confidence of the other, he must act in
good faith to the other and the burden lies upon him to prove that he did act in good faith. 18
The good faith of a sale by a son just come of age to a father is in question in a suit brought by
the son. The burden of proving the good faith of the transaction is on the father.

PRESUMPTION

The judges and authors have defined presumption in various ways but there does not seem to be
an acceptable definition that would cover the situations. Sir James Stephen defined
presumption as a rule of law that courts and judges shall draw a particular inference from
a particular fact, or from particular evidence unless and until the truth of such inference is
disproved.

Types of presumptions under section 4

They are of two types, as per section 4: rebuttable and irrebuttable. Rebuttable presumptions
can be overthrown by evidence while irrebuttable ones are conclusive. Presumptions can also be
classified into presumption of fact and presumption of law. Section 4 provides for may
presume, shall presume and conclusive proof. In case of may presume, court has two options:
court may regard the fact as proved and in case it does, it shall permit the other party to disprove
or rebut it or, the court may not presume the fact and ask the party to prove it. May presume is a
presumption of fact. Section 114 is an example. What is common between shall presume and
conclusive proof is that both are presumptions of law and hence are mandatory and both
definitions say that the court shall draw the presumption directed by law. What distinguishes the
two is that the former is rebuttable as shall presume states that unless and unless it is disproved.
Whereas conclusive proof is irrebutable.

Types of Presumptions related to documents

The Sections of the Indian Evidence Act which deal with Discretionary Presumptions
relating to documents are sections 86, 87, 88, 90 and 90-A. (114) These Presumptions are
those in which the words may presume are used in the sections. The Sections of the Indian
Evidence Act which deal with Mandatory Presumptions are Section 79, 80, 80-A, 81, 82, 83
85 and 89. (11 A ) These Presumptions are those in which the words shall presume is used.

18
Section 111 of evidence act
Section 79 states that the court shall presume a document to be genuine if it is a certificate
or a certified copy. Also, any document, which is by law, declared to be admissible as evidence
and has been certified by an officer of the central or the state government or of Jammu and
Kashmir and is authorized by the centre.19

Section 80 states that when a person has appeared before a court and has recorded a
testimony or confession and his statement being relevant in another case, a certified copy is
produced; the court shall presume it to be genuine.20

Section 81 states that, official gazettes, newspapers or journals and copies of the acts of
parliament are presumed to be genuine.21 Under Section 81A, the court presumes the
genuineness of any electronic record purporting to be the official gazette or any other record
directed by law to be kept by any person, in a prescribed form and which is produced from
proper custody.

Section 82 states that when any document is admissible by any court of England or Ireland
for any particular purpose without proving the sign or stamp or seal authenticating it, the
same is admissible for the same purpose, in India and is deemed to be genuine.22 Under
Section 83 the Court presumes that map or plans purporting to be made by the Central or any
State Government, are accurate; but maps or plans made for the purposes of any cause must be
proved to be accurate.23

Under section 84, The court presumes every book published or printed under the authority
of the government of any country to be genuine which lay down the laws of that country or
the reports of the decisions of the court of such country.24

19
Section 79 of Evidence Act
20
Section 80 of Evidence act
21
Section 81 of Evidence act
22
Section 82 of Evidence Act
23
Section 83 of Evidence act
24
Section 84 of Evidence act
Under section 85, a power of attorney, executed and authorized by a Notary, or any court,
Judge Magistrate, Indian Consul or Vice Consul, or representative of the Central Government is
presumed to be genuine.25

Section 86 lays down the principle that the court may make a presumption relating to the
genuineness and accuracy of a certified copy of a judicial record of any foreign country if the
said document is duly certified in accordance with the rules which are used in that country for
certifying copies of judicial records.26  It is not necessary that the foreign judgment should have
already been admitted as evidence so as to give rise to this presumption.

The presumption under Section 87 is related to the authorship, time and place of the book
or map or chart and not related to accuracy or correctness of facts contained in the book, map or
chart. The accuracy of the information in the map, book or chart is not conclusive but in the
absence of contrary evidence it is presumed to be accurate.27 The accuracy of the information in a
map or a chart depends on the source of information.

The presumption under Section 88 is based on the principle that the acts of official nature
are performed in a regular manner. Under this section the court accepts hearsay statement as
evidence about the identity of the message which was delivered. The requirement under this
section that no presumption shall be made with regard to the person who has delivered the
message for the purpose of transmission is mandatory and should be necessarily complied with.
This presumption only operates if the message has been delivered to the addressee otherwise the
message is not held to be proved.28

According to Section 88 there is only a presumption that the message received by the addressee
corresponds to the message delivered for transmission to the telegraph office and there is no
presumption as to the person who delivered the said message for transmission. But the proof

Section 90 deals with presumption relating to ancient documents or documents which are
30 years old. The basis of Section 90 is the principle of convenience and necessity. The basic
25
Section 85 of Evidence Act
26
Section 86 of Indian Evidence Act
27
Section 87 of Indian Evidence Act
28
Section 88 of Indian Evidence Act
objective of this section is to reduce any difficulties faced by persons who want to prove the
handwriting, execution and attestation of ancient documents for establishing their case.29The
presumption under this section applies to all the documents which come under the definition
given under Section 3 of the Indian Evidence Act.

Section 111A makes the court presume that a person is liable for disturbing public order
and peace of an area declared to be a disturbed area if he has been guilty of certain
offences in the past.30 These offences include the offences themselves or criminal conspiracy or
attempt to commit or their abatement.

Section 114 states that the court may presume the existence of certain facts, regard to the
common course of natural events, human conduct, public and private business as they
stand related to those facts of the case.31 As inferred from the illustrations, these may include:
Unexplained possession of the recently stolen property has been held to create a presumption of
guilt. Every negotiable instrument is presumed to be made or drawn for consideration purposes
etc.

29
Section 90 of the Indian evidence act
30
Section 111A of evidence Act
31
Section 114 of Evidence Act