This article on ‘Burden of Proof and Presumptions under Law of Evidence’ is written by Udit Dwivedi and discusses the burden of proof and presumptions under the Evidence Law. I. Introduction In a legal proceeding, the question as to which out of the two parties has to prove a fact is answered with the question, on which party does… Read More »

This article on ‘Burden of Proof and Presumptions under Law of Evidence’ is written by Udit Dwivedi and discusses the burden of proof and presumptions under the Evidence Law. I. Introduction In a legal proceeding, the question as to which out of the two parties has to prove a fact is answered with the question, on which party does the burden of proof lie. The court does not demand proof of self-evident facts and also holds a presumption of continuity of things until...

This article on ‘Burden of Proof and Presumptions under Law of Evidence’ is written by Udit Dwivedi and discusses the burden of proof and presumptions under the Evidence Law.

I. Introduction

In a legal proceeding, the question as to which out of the two parties has to prove a fact is answered with the question, on which party does the burden of proof lie. The court does not demand proof of self-evident facts and also holds a presumption of continuity of things until something contrary is provided. Chapter VII of part III of the Evidence law deals with, which party does the burden of proof lie and presumptions.

II. Burden of Proof

1. Section 101

From the point of view of the burden of proof, facts can be placed in two categories: those which affirm a fact and those which deny it. 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 following was observed by the Supreme Court in State of Maharashtra v. Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199): 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. Although sometimes, the law may require the accused to prove some fact in issue it is not as onerous as what the prosecution carries.

2. Section 102

This section 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. 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.

The illustration (b) to the section makes it clearer: ‘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.

In the above illustration, there was no legal burden to prove that the bond was genuine but it is obtained by fraud, an evidential burden (or onus), was on B, who asserted it.

3. Section 103

This section 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. This section broadly lays down that whoever asserts something in a court, has to prove it.

Illustration: ‘A’ prosecutes ‘B’ for theft, and wishes the court to believe that B admitted the theft to ‘C.’ A must prove the admission. B wishes the court to believe that, at the time in question, he was elsewhere. He must prove it.

4. Section 104

This section 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. Illustration (a) to this section makes it clear: ‘A’ wishes to prove a dying declaration by ‘B.’ A must prove B’s death.

5. Section 105

This section only applies to criminal cases. The preceding sections applied to civil, as well as 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.

In the leading case of KM Nanavati v. State of Maharashtra (AIR 1962 SC 605), a naval officer was held guilty of murdering his wife’s paramour. The accused could not prove that he fired the shots accidentally or in self-defence.

In Dayabhai v. State of Gujarat (AIR 1964 SC 1563), 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.

6. Section 106

It states if any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. For example, when a person is charged with travelling without a ticket, the burden lies on him to prove it as the fact that he bought a ticket is only known to him. The principle behind this section is an application of the maxim, res ipsa loquitur.

III. Survivorship and Death

1. Section 107

This section lays down a presumption that a man would be considered alive, up to 30 years, after he was last seen or heard of. 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.

2. Section 108

This section states that if a person 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. 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.

In Chard v. Chard (1956 P239: 1955 3 WLR 954), a man got married in 1909. He last heard of his wife in 1917 and remarried in 1933, and subsequently filed a petition for a declaration that the marriage of 1933 was a nullity. The court held that the presumption of her death was not proven as any evidence of the condition of her health or those, who would have naturally heard of her, were not given and therefore, the marriage of 1933 was a nullity.

3. Section 109

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. If 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.

4. Section 110

This section 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.

5. Section 111

This section 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. Illustration (b) to the section makes it clearer: 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.

6. Section 111 A

This section 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. These offences include the offences themselves or criminal conspiracy or attempt to commit or their abatement. They include sections 121, 121A, 122 and 123 of the Indian penal code.

7. Section 112

This section deals with the legitimacy of a child. The essentials of this section-

  1. The child should have been born during the continuance of a valid marriage or within 280 days of a dissolved valid marriage, the mother remaining unmarried.
  2. The parties to the marriage should have had access to each other.

A marriage presumed from living together for a long period of time is a valid marriage for the purpose of legitimacy under this section. The Supreme Court in Chilkuri Venkateshwarlu v. Venkatanarayan (1954 SCR 424), held that the decision in Karapaya Servai v. Mayandi (AIR 1934 PC 49) was correct. In the latter case, the privy council held that the word ‘access’ only connoted an existence of an opportunity for marital intercourse.

In Tesku Dutta v. State (AIR 2004 SC 205), the Delhi HC held that no party could be subjected to a scientific test (such as DNA) without his consent, just because the other party asked for it. This would infringe the right to privacy of that other party. Only in deserving cases can such a direction be given.

8. Section 113

It says that a government notification as to cession of territory to any other state is conclusive proof of that act. The said cession should have taken place before the commencement of the Government of India Act, 1935.

III. Presumption

Presumptions are of compulsory nature as they are of reasonable nature and help in giving direction to the case and avoiding unnecessary matters. They are of two types, as per section 4, rebuttable and irrebuttable. Rebuttable presumptions can be overthrown by evidence while irrebuttable ones are conclusive.

1. Section 113 A

This section is a presumption as to the abetment of suicide by a married woman. To attract the presumption, the following conditions have to be met:

  1. The question before the court should be whether the commission of suicide by a married woman was the result of abetment by her husband or relatives.
  2. The suicide must have been committed within 7 years from the date of marriage.
  3. Evidence to show that her husband or his relatives subjected her to cruelty. Cruelty shall have the same meaning as under section 498A of the IPC.

If the three conditions are met, the court presumes that the husband or his relatives abetted her suicide and then the burden to prove that suicide was her own personal choice lies on the husband or his relatives.

2. Section 113 B

Section 304B of the IPC defines dowry death and this section deals with the presumption as to dowry death. If the ingredients of section 304B of the IPC are met, the onus gets transferred to the accused to rebut the presumption.

The term ‘soon before’ used in section 113B of the evidence law means that there should be a proximate link between acts of cruelty or harassment and death. There can be no laid down formula to establish such a link and the court should consider the facts of each case separately (Kunhiabdulla v. State of Kerala, AIR 2004 SC 1731).

3. Section 114

This section 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. As inferred from the illustrations, these may include:

  1. Unexplained possession of the recently stolen property has been held to create a presumption of guilt. In Mohan Lal v. Ajit Singh (AIR 1978 SC 1183), a case of murder and robbery, a gold ring along with handkerchief and currency notes were recovered, at the suggestion of the accused and they all bore his fingerprints. The court held that it was not merely proof of robbery but presumptive evidence of the charge of murder as well.
  2. An accomplice is deemed to be unworthy of credit unless he is corroborated in material particulars. This presumption is not mandatory and it rests on the discretion of the court.
  3. Every negotiable instrument is presumed to be made or drawn for consideration purposes.
  4. It shall assume continuity of things unless the contrary is provided. For example, if a property is shown to be ancestral, it shall be presumed to be so until the contrary is provided (Chito Mahtoo v. Lila Mahto, AIR 1991 Pat 186).
  5. Judicial decisions and official acts (executive and legislature) shall be presumed to be valid and correct until the contrary is shown. If there are factual errors in a statement as under a judgment, the same can be rectified by an application. If a person alleges any defects to rebut a presumption of correctness of official work, the burden would be on him to prove such defects.
  6. A presumption that the common course of business has been followed in particular cases. In J Mc Gaffin v. LIC of India (AIR 1978 Cal 123), the court refused to raise a presumption that a letter to a tenant asking him to quit was delivered. The certificate of posting was lodged but there was no evidence to show that it was received.
  7. When evidence is withheld by a party, it is presumed to be against him.
  8. If a man refuses to answer a question, which he cannot be compelled to give, the court presumes that the answer, if given, would be unfavourable to him.
  9. If the documents creating an obligation are with the obliger, the court may presume that the obligation has been discharged. For example, if a promissory note is in the hands of the person who made it, the presumption is that it must have been paid off.

4. Section 114 A

This section relates to the consent of the woman (victim) in a prosecution for rape under section 376 of the IPC. If the sexual intercourse is proved and the woman states in her evidence, before the court and during questioning that it was done without her consent, the same shall be presumed by the court.

IV. Conclusion

The addition of section 114A was a necessity, especially after the Mathura rape case (Tukaram v State of Maharashtra, 1979 2 SCC 143). Presumptions help in giving direction to the case and also ensure quick justice, while the burden and onus of proof help in avoiding fake allegations.

Edited by- Akriti


  1. The Indian Evidence Act, 1872
  2. The Indian Penal Code, 1860
  3. SCC Online
  4. Dr Avtar Singh, Central Law Publications, Principles of the law of Evidence

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 27 Sep 2021 1:00 AM GMT
Udit Dwivedi

Udit Dwivedi

Next Story