This question relates to burden of proof. There are certain facts that must be proved by one of the parties to the dispute. The party who has the responsibility of proving a certain fact is said to have the burden of proof on him. The law of evidence lays down that person who wants the court to believe certain things must prove them. The burden is usually fixed at the beginning of trial by the Court on the basis of statement of pleadings.

The meaning of the phrase "burden of proof" is not defined in the Act. The burden of proof as a matter of law and pleading-the burden, as it has been called, of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof.

Section 101 defines burden of proof as under:

• Whoever desires any court to give judgement as to any legal right or liability, dependent on this existence of facts, which he asserts, must prove that those facts exist.

• When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations:-

1. A desires a Court to give judgement that B shall be punished for a crime which A says B has committed.A must prove that B has committed the crime.

2. A desires a Court to give judgement that he is entitled to certain land in the possession of B, by reason of facts, which he asserts, and which B denies to be true. A must prove the existence of those facts.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations:

1. A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B will be entitled to retain his possession. Therefore the burden of proof is on A

2. A sues for money due on a bond. The execution of bond is admitted, but B says it was obtained by fraud, which A denies. If no evidence is 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.

Unless it is provided by law that proof of such fact shall lie on any particular person, the burden of proof as to any particular fact lies on that person, who wishes the court to believe in its existence

Illustrations:

1. A prosecutes B for theft, and wishes the Court to believe, that B admitted the theft to C. A must prove the admission.

2. B wishes the Court to believe, that at the time in question, he was elsewhere. He must prove it.

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustrations:

1. A wishes to prove a dying declaration of B. A must prove B's death.

2. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

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 Penal Code (45 of 1860) or within any special exceptions 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.

(Chapter IV -General Exceptions of Indian Penal code covers exceptions which are included as offences like 'acts done by an individual by mistake' 'acts of judges' etc.)

Illustrations:

1. A accused of murder, alleges, that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A

2. A accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.

Section 325 of the Indian Penal Code provides that whoever, except in the case provided by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishment.

1. A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances for bringing the case under Section 335 lies on A

When any fact is especially within the knowledge of any person, the burden of proving the fact is upon him.

Illustrations:

1. When a person does some act with some intention other than which the character and circumstances of the act suggests, the burden of proving the intention is upon him.

2. A charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

When the question is whether a man is alive or dead, and it was shown that he is alive within 30 years, the burden of proving that he is dead is on the person who affirms it.

When it is proved that a man is not been heard of for seven years by those who would naturally have heard of him if he had been alive, that when the question is whether the man is alive or dead, the burden of proving that he is alive is shifted to the person who affirms it.

When the question is whether the persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person, who affirms it.

When the question is whether any person is owner of anything of which he is shown to be of in possession, the burden of proving that he is not the owner is on the persons who affirms that he is not the owner.

When there is a question of good faith of a transaction between parties , one of whom stands to the other in a position of active confidence, he burden of proving the good faith of the transaction is on the party who is in a position of active confidence

Illustrations:

1. The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving good faith of the transaction is on the attorney.

2. 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.

Where a person is accused of having committed any office specified in-

1. 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

2. 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 has 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.

The offences referred above are the following namely: -

1. An offence under Section1 21 A, Section 122 or Section 123 of the Indian Penal Code, Criminal conspiracy or attempt to commit, or abetment of, an offence under Section 122 or Section 123 of the Indian Penal Code.

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.

The law presumes strongly in favour of legitimacy of offspring, as it is birth that determines the status of a person. This Section refers to point of time of birth as the deciding factor and not to the time of conception; the latter point of time has to be considered only to see whether the husband had not access to the mother. Whenever a child is born in lawful wedlock, there is a conclusive presumption of legitimacy, unless it is proved by very reliable evidence (e.g. divorce, long and continued separation, illness rendering sexual intercourse impossible, etc) that the parties had not or could not have any access.

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 her to 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 such relative of her husband.

The presumption as to abetment of suicide arises where the woman has been subjected to cruelty by her husband and his relations
[Shyama Devi Vs. State of West Bengal, 1987 Cr. L.J. 1163].

The drinking habit of a husband along with late coming and beating his wife was held to be a cruelty for the purpose of the presumption under this Section but not where he only came late after drinking and did not beat his wife
[Amarjit Singh Vs. State of Punjab 1989 Cr. L.J (NOC) 13 P&H].

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.

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.

Illustrations: The Court may presume-

1. That a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession- a shopkeeper has in his till a marked rupee soon after it was stolen and cannot account for its possession specifically but is continually receiving rupees in the course of his business.

2. That an accomplice is unworthy of credit, unless he is corroborated in material particulars -a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D and the accounts corroborate each other in such a manner as to render previous concert highly improbable.

3. That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration - A, the drawer of a bill of a exchange, was a man of business. B, the acceptor, was young and ignorant person, completely under A's influence.

4. That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence - It is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course.

5. That judicial and official acts have been regularly performed;

6. That the common course of business had been followed in particular cases;

7. That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The illustration refers to the presumption raised from willful withholding of evidence and from spoliation, i.e. destruction, mutilation or suppression or fabrication of evidence. The suppression or destruction of useful evidence naturally leads to the inference that the evidence if produced would go against the party who withholds it. The rule is contained in the well-known maxim: omnia praesumuntur contra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted.

8. That, if a man refuses to answer questions which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. Refusal to answer a question is generally a legitimate ground of unfavourable inference against the person who may answer the question. But high Authority has declared a contrary rule on the ground that a party should not be punished for the misconduct of its witness, but that the witness, in such cases should be punished for contempt of court.

9. That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. There is natural presumption that a person discharging his debt will generally protect himself by securing the document creating the liability. So when a bond is produced by the obligor, the presumption is that it has been satisfied. The obligor's possession of the instrument after maturity is usually said to raise a presumption of payment; but there are various limitations laid down, in particular concerning the obligor's opportunity of surreptitious access to the obligee's papers.

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. In plain words, a person shall not be allowed to say one thing at one time and the opposite of it at another time.

Illustration:

1. A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induced B to buy and pay for it.

2. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

No tenant of immovable property, or person claiming through such tenant, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who come upon any immovable property by the licensee of the person in possession thereof, will be permitted to deny that such person had a title to such possession at the time the licence was given.

No acceptor of a bill of exchange shall be permitted to deny that the drawer had such authority to draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or licence commenced, authority to make such bailment or grant such licence.

Explanation 1: - The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Explanation 2: - If the bailee delivers goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.