Dr. Ram Manohar Lohiya National Law University, Lucknow: Acknowledgement

Dr.
RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
LAW OF EVIDENCE
BURDEN OF PROOF
SUBMITTED TO SUBMITTED BY
ACKNOWLEDGEMENT
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I would like to express my special thanks of gratitude to my teacher Dr. Kumar Askand Pandey
who gave me the golden opportunity to do this wonderful project of Jurisprudence on the topic
“BURDEN OF PROOF”. He also helped me in completing my project and has rendered endless
support, kind and understanding spirit during my project completion. I came to know about so
many new things, I am really thankful to him. The completion of this project could not have been
possible without the participation and assistance of various people thus; I would also like to thank
my parents and friends who helped me a lot in finalizing this project within the limited period.
I would also like to thank the Great Almighty, source of supreme knowledge for countless love
rendered on me.
TABLE OF CONTENTS
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INTRODUCTION………………………………………………………………………………...4
FACTS…………………………………………………………………………………………….5
ISSUES……………………………………………………………………………………………7
DISSENTING OPINION………………………………………………………………………….8
CONCLUSION.…………………….………………………………………………………..……9
INTRODUCTION
Section 105 of the Evidence Act deals with the Burden of Proof.
According to this Section, when a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions in the Indian
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Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part
of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the
absence of such circumstances.
Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is
interested to take benefit of ‘the general exceptions of the Indian Penal Code or of any of the
special laws.
The general principles relating to burden of proof are:
1. The accused is always presumed to be innocent, and
2. It is prosecution to prove the guilt of the accused. It is only after the prosecution to
discharge its initial traditional burden establishing the complicity of the accused.
Under section 105 the burden lies on the accused. Once the prosecution has been successful to
prove the guilt beyond reasonable doubt that the accused had committed offence. It is immediately
shifted to the accused who, if he so desires, may set up a defense of bringing his case within general
exceptions of I.P.C. or within special exception or proviso contained in any part of the same code
or any other law.
For example, in a murder case the prosecution proved that it was a case of murder under section
300, I.P.C. The accused alleged that by grave and sudden provocation he was deprived of the
power of self-control. The burden of proof lies on the accused1. Similarly, an accused of murder
alleged that by reason of unsoundness of mind he did not know the nature of act what he had done.
The burden lies on the accused.
It is prescribed rule2 that the burden is on the accused to prove the existence of circumstances
bringing his case within any of the exceptions. The said rule does not whittle down the axiomatic
rule of burden of proof that the prosecution must prove that the accused has committed the offence
charged against them.
GENERAL CONCEPT OF BURDEN OF PROOF
The responsibility to prove a thing is called the 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
1
Section 300 of the Indian Penal Code.
2
Section 105 of the Evidence Act
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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 Of Evidence Act defines 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
case3. 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.
3
Section 101 of the Evidence Act
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Dr.

RAM MANOHAR LOHIYA NATIONAL

GENERAL CONCEPT OF BURDEN OF PROOF

Section 101 Of Evidence Act defines burden of proof as follows :

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