When Facts Seek Light

The doctrine of burden of proof lies at the heart of evidence law and plays a pivotal role in how courts assess factual disputes and assign liability or guilt. The Bharatiya Sakshya Adhiniyam, 2023 (BSA) codifies who must prove what and when. By delineating rules on how burden shifts, how presumptions operate and who bears the onus in criminal and civil matters, the BSA provides a comprehensive framework to ensure fairness, predictability and procedural clarity in judicial proceedings.

What is the rule regarding burden of proof when a person wants a court to decide on a legal right or liability?

Whoever wants a court to give a judgment about a legal right or liability that depends on certain facts must prove that those facts exist. When a person is required to prove the existence of a fact, the burden of proof lies on that person.

If A wants the court to punish B for a crime which A alleges B committed, who must prove the commission of the crime?

A must prove that B committed the crime.

If A wants the court to declare that he is entitled to land in B’s possession based on facts that B denies, who must prove those facts?

A must prove the existence of those facts.

Who bears the burden of proving mala fides?

The burden of proving mala fides lies on the person alleging it.

When are presumptions not to be invoked?

Presumptions are not invoked when the truth or fact is already known. If the fact is known, there is no room for presumption.

Who bears the burden when the constitutional validity of a law is challenged?

The person who challenges the constitutional validity of a law must prove that it is invalid.

Who bears the burden of proving the existence of a Hindu Undivided Family (HUF)?

The person who asserts that a HUF exists must prove it.

On whom does the burden of proof lie in a suit or proceeding?

The burden of proof lies on the person who would lose if no evidence were given by either side.

If A sues B on a bond whose execution is admitted, and B alleges fraud, who bears the burden?

The burden of proof is on B because if no evidence were given on either side, A would succeed.

Who bears the burden of proof when alleging breach of contract?

The party alleging breach must prove the breach, applying the test of who would fail if no evidence were led.

Who bears the burden of proving a particular fact?

The person who wants the court to believe in the existence of that fact must prove it, unless the law places the burden elsewhere.

If A alleges that B admitted a theft, who must prove the admission?

A must prove the admission.

If B claims he was elsewhere at the relevant time, who must prove it?

B must prove the fact that he was elsewhere.

Who bears the burden of proving facts necessary to make other evidence admissible?

The person who wants to give that evidence must prove the necessary preliminary facts.

If A wants to prove a dying declaration by B, what must A establish?

A must prove that B is dead.

If A wants to give secondary evidence of a lost document, what must A prove?

A must prove that the document has been lost.

Who bears the burden of proving circumstances bringing an accused person within any general or special exception?

The accused bears the burden, and the court will presume absence of such circumstances.

If A is accused of murder and claims unsoundness of mind, who must prove this?

A must prove it.

If A claims grave and sudden provocation, who bears the burden?

A bears the burden.

If A is charged with voluntarily causing grievous hurt, and claims to fall under a special exception, who must prove this?

A must prove the circumstances bringing the case under the exception.

Does raising a plea of private defence shift the prosecution’s burden?

No. The prosecution must first prove its case beyond reasonable doubt. Only thereafter does the question of private defence arise.

Who bears the burden of proving insanity as a defence?

The accused must prove it.

What is the rule when a fact is especially within a person’s knowledge?

The burden of proving that fact lies on that person.

If a person claims he acted with a different intention than suggested by his conduct, who must prove that intention?

He must prove it himself.

If a person is charged with travelling without a railway ticket, who must prove that he had a ticket?

He must prove it.

Does the rule about special knowledge diminish the prosecution’s burden?

No. It does not undermine the rule that prosecution must prove its case, except in very exceptional cases.

What determines on whom the onus lies?

It depends on the facts of each case.

How does the “last seen together” theory relate to this burden?

If the accused was last seen with the deceased in close proximity to the time of death and provides no explanation, the burden may shift to him regarding facts within special knowledge, contributing to conviction when supported by other circumstances.

Who bears the burden of proving that a person is dead when it is shown that he was alive within thirty years?

The person asserting that the man is dead must prove it.

Who bears the burden of proving that a person is alive when he has not been heard of for seven years?

The person asserting that he is alive must prove it.

Who bears the burden of proving that parties who acted as partners, landlord and tenant, or principal and agent are no longer in those relationships?

The person who claims that the relationship has ceased must prove it.

Who bears the burden of proving that a person in possession of property is not its owner?

The person asserting that he is not the owner must prove it.

Who bears the burden of proving good faith in a transaction where one party stands in a position of active confidence?

The party in the position of active confidence must prove the good faith of the transaction.

What presumption applies when a person is accused of certain offences in disturbed areas?

If the person was present at a place where firearms or explosives were used to attack armed forces, it is presumed unless the contrary is shown that he committed the offence.

What offences does this presumption apply to?

It applies to certain offences involving unlawful assembly, rioting, and related acts, including conspiracy, attempt, and abetment.

What is the rule regarding legitimacy of a child born during marriage?

A person born during a valid marriage or within 280 days after its dissolution (if the mother remains unmarried) is conclusively presumed to be the legitimate child of the husband, unless it is shown that the spouses had no access to each other.

What presumption applies when a married woman commits suicide?

If she dies within seven years of marriage and it is shown that she was subjected to cruelty by her husband or his relatives, the court may presume that the suicide was abetted by them.

When can this presumption be invoked?

Only when the prosecution proves the prerequisites thereafter the burden shifts to the accused.

Does suicide at the matrimonial home automatically imply cruelty?

No. Suicide by itself does not lead to a presumption of cruelty.

What presumption applies in cases of dowry death?

If it is shown that the woman was subjected to cruelty or harassment for dowry soon before her death, the court shall presume that the accused caused the dowry death.

What may a court presume regarding the existence of certain facts?

The court may presume facts likely to have happened, considering natural events, human conduct, and business practices.

Are there any examples of these presumptions?

(a) A person in possession of stolen goods soon after theft is presumed to be the thief or receiver.

(b) An accomplice is presumed unworthy of credit unless corroborated.

(c) A bill of exchange is presumed to be for good consideration.

(d) A state of things existing recently is presumed to continue.

(e) Judicial and official acts are presumed properly performed.

(f) Usual business practices are presumed followed.

(g) Withholding evidence raises a presumption that it would be unfavourable.

(h) Refusing to answer a question implies an unfavourable answer.

(i) A document creating an obligation found with the obligor implies discharge.

What factors must the court consider in applying or rejecting these presumptions?

The court must consider various circumstances provided, such as:

(a) The nature of business (e.g., a shopkeeper receiving marked coins).

(b) The credibility of witnesses.

(c) Improbability of prior concert among accused persons.

(d) Relative influence between parties.

(e) Effects of natural events like floods.

(f) Exceptional circumstances affecting official acts.

(g) Interruptions in postal service.

(h) The impact of producing sensitive documents.

(i) Risks unrelated to the matter when refusing answers.

(j) Possibility of the obligor having stolen a document.

What is the purpose of these presumptions?

Their purpose is to fill gaps in the chain of evidence and aid judicial reasoning.

Can a presumption be raised against the accused?

No. Presumptions of fact or evidence cannot be raised against an accused.

Can courts presume continuance of a state of affairs?

Yes, unless discontinuity is proved. A stray revenue entry is insufficient to prove discontinuity.

Are official acts presumed to be regularly performed?

Yes. Courts should not begin with distrust of police records.

Can an adverse presumption be drawn against a defendant who avoids cross examination?

Yes. If a defendant refuses to enter the witness box, an adverse presumption may be drawn.

Therefore, the BSA affirms and refines the timeless principle that a party who asserts facts must prove them, while also specifying circumstances in which legal presumptions and shifts of onus arise. Whether in civil disputes over property and contracts, or criminal cases invoking general or special exceptions, the law strikes a balance, placing initial responsibility with the party making allegations, yet not losing sight of fairness and substantive justice. By clarifying when, how, and on whom the burden rests, the BSA streamlines evidence law and enhances the predictability of outcomes.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.