EVIDENCE LAW ASSIGNMENT

EXCEPTIONS TO BURDEN OF PROOF

Submitted to Dr. Sheffali Dixit

Submitted by Gauri Rastogi
Enrollment no- 1020202115
INTRODUCTION

The laws relating to the Burden of Proof and its related rules are as provided in the INDIAN EVIDENCE
ACT OF 1872. The act clearly states that until and unless an exception is established, the burden of proof
will rest on the person who has asserted a fact or is making any claim. When a person has proven the
existence of a fact, then the burden of proof belongs to that person. In a Criminal case, the burden of proof
is on both parties. The first burden is on the prosecution to prove the allegations against the defendant. In
contrast, the second burden lies with the defendant to bring about convincing doubts surrounding the
prosecution's case. This article will elucidate the aspects of the burden of proofs and the exceptions of it
as contained in section 101 to section 106 of the Indian Evidence Act.

WHAT IS THE BURDEN OF PROOF?

In simple terms, the Burden of Proof is the responsibility to prove the fact in a case. The term Burden of
Proof explains two major facts or burdens. The first is the burden of production, the burden of “going
forward with the evidence,” and the burden of plea or persuasion. The burden of plea or persuasion is the
responsibility that rests on the single party through the period of the court sitting. The party carrying the
burden can only succeed in its claims once it has satisfied the “tier of fact.” For one to be presumed
innocent in a court of law over a criminal case, the prosecution is faced with the burden to prove elements
of the offense and disprove all defenses, excluding defenses with affirmation which constitutionally are
not required in the prosecution of the case. The Burden of evidence should not be confused with the
burden of persuasion. Evidential Burden can change its side between parties during the court proceedings.
The evidential burden is only raised to provide enough evidence against a case in the court.

PRINCIPLES OF BURDEN OF PROOF

The underlining principle of the Burden of Proof is contained in the concept of
(I) Onus probandi.
It is the liability and obligation to prove a fact that can shift between parties in the case.

(II) Factum proband

The fact that needs to be proved

SECTION 101- – Burden of proof

This section, in its explanation of the Burden of Proof, states that whoever wants the court to proffer
judgment to a legal case or right based on the availability of facts, must prove those facts beyond any
reasonable doubt.

ILLUSTRATION
In a case where person A desires the court to offer judgment on B following a crime committed, A must
prove that B has committed the said crime.
A has prayed to the court to give judgment that he is to own a certain land presently possessed by B,
based on the facts he presents which B has denied. In this case, A must prove those facts to be true.

CASE
Jarnail vs. State of Punjab1
The responsibility of proving that the accused had committed the crime beyond all reasonable doubt rests
on the prosecution. If it fails to establish concrete evidence to shed off the burden, it cannot depend on the
evidence brought by the accused on defense in the case. The prosecution does not rely on the accused's
evidence to convict the defendant.

SECTION 102
On whom the burden of Proof of Lies. In a case brought before the court, the burden of proof lies on who
has the tendency to fail if no evidence is supplied before the court from either of the parties.

ILLUSTRATION
If A takes B to court following a feud because of land in which B is in possession, and A asserts that it
was left to A following a will made by C, who was B’s father. If neither A nor B presents any evidence,
then B will retain the property.
In a case where A sues B for money resulting from a bond. Both parties have agreed to the execution of
the bond, but B disagrees. If no party can establish a piece of evidence, then A would win as the bond had
been contracted, but the case of fraud cannot be proved. In that case, the burden of proof rests on B.

CASE

1
Air 1996 SC 755
Triro vs. Dev Raj2
The defendant had prayed to the court over a period of limitation. The plaintiff's position was to know the
cause of the delay of the delay and the burden of proving if the case was within the given period was on
the plaintiff.

SECTION 103
Burden as to a fact. The burden of proof to a fact rests on the person who desires the court to believe in
the existence of such fact unless a law authorizes the proof of the fact to be established by any particular
individual.

ILLUSTRATION
If A sues B for theft and desires the court to accept that B admitted committing the theft to C. A must
prove that fact, and if B denies it, B must prove it.

The principle of this section states that once a party desires the court to accept and act based on the
existence of a fact, he must prove that fact. This principle is the “rule of the convenience of the burden of
proof” in sections 104,113,113a and 114a.

SECTION 104
The burden of proving the fact to be proved to make evidence admissible. This is a burden of proving a
fact that is necessary to be proved to allow any person to establish evidence of any fact and is on the
person who intends to establish such a piece of evidence.

ILLUSTRATION
If A desires to prove the declaration of death by B, A must prove that B is dead. B intends to prove, by
secondary evidence, the contents of a lost document. A must prove that the document cannot be found.
This section provides the proof of a fact for which evidence can be admitted where such admission is
based on the fact of which party proves which must be in tandem with the admissibility.

SECTION 105
The burden of proving that the case of the accused comes within exceptions. When a person is accused of
an offense, the fact required to establish the circumstances surrounding the case, excluding General

2
AIR 1993 J&K 14
Exceptions in the Indian Penal Code 45 of 1860 or in any regulations defining it, is upon him while the
court will presume the absence of such a circumstance.

When a person is alleged of any crime, the burden of establishing the presence of conditions bringing the
case under any of the General Exceptions enshrined in the Indian Penal Code, or under any certain
exception or proviso incorporated in any other part of the same Code, or in any statute describing the
offense, is lies upon him, and the Court shall assume the dearth of such circumstances.

This section refers to the exceptions provided to the accused that will serve as the benefit of ‘the general
exceptions of the Indian Penal Code or of any of the special laws. The general principle requires the Court
to presume the innocence of the accused until proven otherwise and it is upon the prosecution to establish
the guilt of the accused. Once the guilt is established, the onus then shifts to the accused who can take the
defense of general exceptions in I.P.C.

Principle:

Section 105 has a special characteristic. It is only relevant for criminal cases when an accused is keen to
utilize the benefit of ‘the general exceptions of the Indian Penal Code or of any of the specific laws. The
general postulates regarding the burden of proof are:

(i) the accused is always presumed to be innocent, and

(ii) it is the prosecution to establish the culpability of the accused.

It is only after the prosecution clears its initial traditional onus establishing the involvement of the
accused. As per section 105, the burden is on the accused.

For instance, in a murder case, the prosecution established that it was a case of murder within section 300
of I.P.C. The accused asserted that because of the grave and sudden provocation, he was divested of the
power of self-control. The burden of proof lies upon the accused. Likewise, an accused of the offense of
murder alleged that by the justification of unsoundness of mind, he was not aware of the nature of the act
that he had done. The burden is on the accused.
It is laid down under section 105 that the burden is on the accused to establish the existence of
circumstances that brings his case under any of the general exceptions. The particular rule does not
undermine the unquestionable rule of burden of proof that the prosecution must establish that the accused
has done the offense charged against him.

Excusable Acts Justifiable Act

A mistake of Fact under sections An act of Judge and Act performed in pursuance of an
76 and 79. order under Sections 77 and 78.

Accident under Section 80. The necessity under 81.

Infancy – Section 82 and 83. Consent under Sections 87 – 89 and Sections 90 and 92.

Insanity – Section 84. Communication under Section 93.

Intoxication – Section 85 and 86. Duress under Section 94.

Trifles under Section 95.

Private Defence under Section 96 – 106.

Standard of proving the defence

Under section 105, if an accused claim for the benefits of exceptions, the burden of proving the case must
fall within the exception, and it lies upon him. But the burden of proof by the accused is not specifically
similar to that of the prosecution. An accused is not needed to cite principal evidence to establish his case
beyond a reasonable doubt. “The evidence act does not envisage that the accused should establish his case
with the same accuracy and zeal as the prosecution is needed to prove in a criminal charge.

It is adequate if he can prove his case by the standard of the predominance of possibilities provided by
Section 105 of the Evidence Act.” Thus, the law necessitates that the burden of proof on the accused
asserts to claim the favor under general exceptions and must be examined by the standard of
“preponderance of probability.” While the prosecution must prove its case beyond a reasonable doubt, the
accused can clear his burden by proving a preponderance of probability.

The Supreme Court has made it transparent that if the evidence is not adequate to clear the burden as per
section 105, it may raise a reasonable doubt regarding one or other of the important aspects of the crime
itself, in which case the accused would be allowed to be discharged.

Pratap v State of U.P.3

It was held that where the probability that the accused had caused death in self-defense was held to be
sufficient even though he had not taken his defense in the committal proceedings. Again, the apex court
observed that the onus of proving that the case comes under any of the general exceptions can be cleared
by establishing a preponderance of probability. As per section 105 of the Evidence Act, the burden of
proof lies upon the accused, who establish the plea of self-defense, and in the dearth of proof, it is not
feasible for the court to believe in the authenticity of the plea of self-defense.

3
[ 1973 AIR 786]
But, in a case of robbery and murder, the opportunity of the accused to commit the crime was proved by
circumstantial evidence. They were found to be in possession of the robbed articles, and they had no
justification for their possession. A negative assumption can be drawn against the person accused of
murder and robbery. While the prosecution has to prove their case beyond a reasonable doubt, the accused
can clear the burden by proving preponderance of probability.

The onus of an accused person will be compared with the oneness of a party in a civil case, and just as in
civil proceedings, the court trying an issue makes its divisions by adopting the test of probabilities, so
must a criminal court hold that the plea made by the accused is proved if a preponderance of probabilities
is established by the evidence led by him. Even where the accused has not pleaded an exception, the
accused cannot be denied the benefit of exceptions. When the right of private defence is pleaded, the
burden of the accused only shifts after the prosecution has discharged its initial burden of proving its case
beyond a reasonable doubt. Consequently, the weakness in the defense case would not ensure the
prosecution's advantage.

Where an accused person, in his statement under section 313 under Cr. P.C. raised the defense of
unsoundness of mind, but the circumstances indicated that he acted under grave and sudden provocation.
It was held that the accused could not be denied the benefit of the defense of Exception 1 to Section 300
of I.P.C.

ILLUSTRATION
When A, who is accused of murder, alleges that because of lunacy, he was unaware of the nature of the
act. The burden of proof rests on A.
A, an accused of murder, who contended that because of sudden provocation, he lost self-control. The
burden of proof is on A.

Thus, this section provides that the burden of proving lies on the accused if his defence comes under an
acceptable exception.

SECTION 106
The burden of proving a fact, especially within the knowledge When any fact is confined to the
knowledge of a person, the burden of proving that fact is on the person.

ILLUSTRATION
The burden of proving the fact is on a person who commits an act with an intention that is different from
the circumstances that the act suggests. On an occasion that A is charged for boarding a train without a
ticket, the burden of proving such a fact is on A.

CASE
Eshwarai vs. Karnataka4
If a man and a woman are found hiding under the bedroom of the deceased who died because of injuries
sustained, the two found must prove the lies upon them and explain their presence in the room as to the
circumstance of the death found.

SECTION 107
The burden of proving the death of a person known to have been alive within thirty years. In a situation of
controversy about whether a person is dead or alive, and it is established that he had been active for the
last thirty years, the burden of proving that he is not happening is on the person who states it.

Section 111A

“Presumption as to certain offences. –– (1) Where a person is accused of having committed any offence
specified in sub-section (2), in ––(a) any area declared to be a disturbed area under any enactment, for
the time being in force, making provision for the suppression of disorder and restoration and
maintenance of public order; or

(b) any area in which there has been, over a period of more than one month, extensive disturbance of the
public peace,

and it is shown that such person had been at a place in such area at a time when firearms or explosives
were used at or from that place to attack or resist the members of any armed forces or the forces charged
with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless
the contrary is shown, that such person had committed such offence.

(2) The offences referred to in subsection (1) are the following, namely: ––

(a) an offence under section 121, section 121A, section 122, or section 123 of the Indian Penal Code (45
of 1860);

4
[1962 AIR 605]
(b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 122 or section
123 of the Indian Penal Code (45 of 1860).].”
This section is the first of many that shift the burden of proof on the accused. Offences under section 121
of the Indian Penal Code relating to waging, attempting to wage war, or abetting waging of war against
the Government of India. Section 121A covers offences related to conspiracy to commit offences
punishable by section 121 of the IPC. Sections 122 and 123 deal with the intention of waging war against
the Government of India. Thus, section 111A of the Indian Evidence Act says any person found in a
restricted area under suspicion of having committed the above-mentioned offences, will be presumed
guilty by the court, and it is now his duty to firmly establish his innocence.

Section 112

“Birth during the marriage, conclusive proof of legitimacy. –– The fact that any person was born during
the continuance of a valid marriage between his mother and any man, or within two hundred and eighty
days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the
legitimate son of that man unless it can be shown that the parties to the marriage had no access to each
other at any time when he could have been begotten.”

Section 112 lays down the rule for proof of paternity of an individual. It says that if a child is born during
the continuance of a valid marriage between the mother and any man or within 280 days after the
dissolution of marriage, the mother remaining unmarried it shall be presumed that the child is a
legitimate son of the man unless and until it is shown that the parties to the marriage had no access to
each other any time when the child would have been conceived.

Admissibility of D.N.A test:

In Goutam Kundu v. State of West Bengal5, the Supreme Court said that “Section 122 requires the party
disputing the paternity to prove non-access in order to dispel the presumption. ‘Access’ and ‘non-access’
mean the existence or non-existence of sexual intercourse; it does not mean actual cohabitation. The
effect of this section is a presumption and a very strong though rebuttable one.”

The Supreme Court ruled in this case that (a) courts cannot routinely order blood tests, (b) there must be
a prima facie case in which the husband must prove "non-access" in order to refute the presumption
arising under section 112, and (c) the court must carefully consider the potential consequences of
ordering the tests, including whether they will have the effect of labeling a child as abnormal and the

5
AIR 1993 SC 2295.
mother as unchaste.

Prevalence of DNA test over conclusive proof:

In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik6, The Supreme Court determined that a DNA
test's authenticity can only be shown by its scientific accuracy. The Court, however, proceeded on the
basis of the assumption that the DNA test result was accurate and held that the Husband should not be
required to bear the child's paternity in light of the scientific reports that show the fact proved in his favor.
No one, however, had a case against the genuineness of the DNA test result. The Court further noted that
if paternity cannot be established, the spouse should be released from his duty to support the child, and if
support has already been provided, the husband is not entitled to receive it back.

Section 113A

“Presumption as to abetment of suicide by a married woman. ––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 herto 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 a such relative of her husband.

Explanation. –– For the purposes of this section, “cruelty” shall have the same meaning as in section
498A of the Indian Penal Code (45 of 1860).].”

The section requires proof that (1) that her husband or relatives subjected her to cruelty and (2) that the
married woman committed suicide within a period of seven years from the date of her marriage. If these
facts are proved, the court 'may' presume. The words are not 'shall' presume. Such a presumption can be
drawn only after the court has considered all the circumstances of the case. The inference would then be
that the 'husband or relatives' abetted her suicide. If there is no evidence of cruelty, the section does not
apply.

From a plain reading of section 113A of the Indian Evidence Act it can be seen that it has a retroactive
impact. Regardless of when the offence was committed, it applies to all pending actions. Even if the
incident occurred before the act's implementation, i.e., before 1983, by a married woman, this is still
applicable to the offence of aiding suicide.

6
AIR 2014 SC 932
In Gurbachan Singh v. Satpal Singh7, according to the Supreme Court, section 113A of the Indian
Evidence Act is only a procedural change that will apply to crimes committed before it was inserted into
the law and neither creates a new crime nor a substantial privilege.

Section 113B

“Presumption as to dowry death. ––-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.

Explanation. –– For the purposes of this section, “dowry death” shall have the same meaning as in
section 304B of the Indian Penal Code (45 of 1860).]”

A major difference between section 113A and 113B of the Act is the use of the word “shall” in section
113B. The use of the word makes it mandatory on the part of the court to presume that death has been
committed by the person who subjected her to cruelty or harassment in connection with or demand of
dowry. This is unlike section 113A, where the Court can presume the abetment of suicide. Under section
113B in relation to section 304B of the Indian Penal Code, the burden of proof shifts exclusively and
heavily on the accused8.

Section 114:

Under section 114 of the Indian Evidence Act, the court may presume the existence of certain facts. It
gives the courts very wise power. If an incident must happen in the ordinary course of events, the courts
may presume it and the party denying its existence has to rebut it. This section has very wide
applicability, and it covers not only the particular instances provided in the illustrations but also all sorts
of similar cases which are equally amenable to the general principle enunciated by the section.

Since discussing every illustration would be time-consuming, I have taken the liberty of merely referring
to a few of them to substantiate my assignment.

Illustration (a) of section 114 is an exception to the general rule of burden of proof in a criminal case. It
says that as soon as the accused was found in possession of stolen goods shortly after they were stolen, it
may be presumed that he is either a thief or has received goods knowing them to be stolen unless he can

7
AIR 1990 SC 209
8
Tarsem Singh v. State of Punjab, AIR 2009 SC 1454.
account for them being in his possession.

Illustration (d) says that if it is proved that a thing or state of things existed within a period shorter than
that within which such state of things or things usually cease to exist, the court may presume that such
thing or state of things still exists.

Illustration (g) lays down that if the evidence which can be put forward was not done so, it may be
presumed that if produced, it would be unfavorable to the person withholding it and the omission of a
party in such a proceeding raises a presumption against his claims.

Section 114A

“Presumption as to the absence of consent in certain prosecution for rape. ––In a prosecution for rape
under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i),
clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian
Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped and such woman states in her evidence
before the court that she did not consent, the court shall presume that she did not consent.

Explanation. –– In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a)
to (d) of section 375 of the Indian Penal Code (45 of 1860).]”

According to Section 114-A of the Indian Evidence Act, there would be a presumption of lack of consent
in some rape cases. It provides that the court shall presume that the lady did not consent if rape was
committed in accordance with any of the provisions of sub-section (2) of Section 376 of the Indian Penal
Code. The woman testifies that she had not provided consent. The prosecution must only prove that
sexual intercourse took place. After that, the burden of proof shifts on the accused to prove that he had
the consent of the lady.

In Rachna Singh v. State (NCT of Delhi)9, the trial court found the accused not guilty. Angered by this
Trial Court ruling, the victim knocked on the doors of the Delhi High Court, claiming that Section 114-A
of the Indian Evidence Act presumes guilt. The High Court rejected this claim, stating that one must first
establish that there was sexual activity in order to establish the presumption of guilt under Section 114-A.
Because the woman refused to submit to an internal investigation and made many calls to the accused,
her conduct was itself tainted by this act. She did not behave as she had said, and as there was no
evidence of any sexual activity, the court ruled that section 114A would not be applied.

9
2019 SCC OnLine Del 8519
In Mohd. Eqbal v. State of Jharkhand 10, two boys raped a female after forcibly removing her from the
vegetable market. According to the court's ruling in this instance, there is a presumption that there was
no consent given in circumstances of gang rape because no one would consent to two people at the same
time. As a result, it is possible to assume that no consent was given in circumstances of gang rape, and
Section 114-A would then be applicable.

Whether consensual sex on the false promise of marriage would be governed by section 114A?

In Anurag Soni v. State of Chattisgarh11, the court held that false promise of marriage to the prosecutrix
amounts to consent on the misconception of facts under section 90 of the Indian Penal Code. This in turn
gives rise to section 114A of the Evidence Act, thus, the accused is liable to be convicted of rape.

2013 AMENDMENT OF THE BURDEN OF PROOF ACT

Section 114A. Presumption as to the absence of consent in certain prosecutions of rape.
In a prosecution for rape subject to section 376 of the Indian Penal Code, where sexual intercourse is
proved against the accused, if the woman asserts that it was non-consensual sex, then the court will honor
the claims of the woman.

CASE
Nawab Khan vs. Stateḍ12
The court held that if the person with which the sexual intercourse is committed tells the court it was
non-consensual sex, then the court will assume there was no consent. If the accused claims that there was
consent, then the burden of proof lies with the accused.

Conclusion

It is clear that the burden of proof on the prosecution is far beyond what is prescribed by the legislature.
This is because of the judiciary’s concern that no innocent should be penalized and the accused should
utilize all the aids during a trial; this can be interpreted as the punishment imposed is mainly of a serious
degree.

10
(2013) 14 SCC 481: 2013 SCC OnLine SC 654
11
AIR 2019 SC 1857
12
[1962 AIR 605]
The postulate of presumption of innocence is enshrined in the criminal law of India and must not be
interfered with in unimportant cases and should not be disregarded or compromised unless it is of the
greatest necessity to do so.

The issue regarding the presumption of innocence in India, to an extent, stems from the absence of
explicit mention of the right in the Constitution. This gives the parliament an unrestrained authority to
enforce statutes, including reverse burden clauses that infringe on the presumption of innocence. In my
opinion, the Constituent Assembly, even after the discussion on this principle, has erred in not mentioning
it in the Constitution. Article 20, which mentions the fundamental rights of an accused person, must
additionally contain the principle of presumption of innocence as well, of course, with an exception clause
that allows the reversal of burden in case of heinous crimes of socioeconomic nature that impact the
well-being of the society at large. A provision that fairly represents the idea of a fair balance between the
general interest of the community and the personal rights of an individual must be formulated in this
regard.