Law of Evidence

By Nizam Azeez Sait,

MODULE No. 24

BURDEN OF PROOF

This is the 24rd Module of the subject ‘Law of Evidence’, which deals with Chapter VII titled “Of the Burden of Proof” in Part IV titled “Production and Effect of Evidence” of the the Bharatiya Sakshya Adhiniyam comprising Sections 104 to 120 (Sections 101 to 113 of the Evidence Act).

Out of these, Sections 116 to 120 are dealt with in Module 22 dealing with presumptions.

In this module we will survey through:

  1. the fundamental principles of burden of proof embodied in Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam (Sections 101 to 103 of the Evidence Act),
  2. burden of proving fact to be proved to make evidence admissible under Section 107 of the Bharatiya Sakshya Adhiniyam (Section 104 of the Evidence Act)
  3. burden of proof of Special Exceptions under Section 108 of the Bharatiya Sakshya Adhiniyam (Section 105 of the Evidence Act),
  4. burden of proof of proving facts especially with in one’s knowledge under Section 109 of the Bharatiya Sakshya Adhiniyam (S.106 of the Evidence Act),
  5. presumption as to life and death under Sections 110 and 111 of the Bharatiya Sakshya Adhiniyam (Sections 107 and 108 of the Evidence Act),
  6. burden of proof as to relationship of partners, landlord and tenant, principal and agent, under Section 112 of the Bharatiya Sakshya Adhiniyam (Section 109 of the Evidence Act),
  7. burden of proof to show that person in possession of property is not the owner under Section 113 of the Bharatiya Sakshya Adhiniyam (Section 110 of the Evidence Act),
  8. burden of proof of good faith in transactions where one party is in relation of active confidence under Section 114 of the Bharatiya Sakshya Adhiniyam (Section 111 of the Evidence Act). Etc
  9. the special rules of Reverse burden in some of the Statutes,

MODULE INDEX

  1. Introduction
  1. The Meaning/Different Senses in which The Phrase “Burden of Proof” is Employed
  2. One Who Asserts Must Prove and Onous of Proof Keeps Shifting as Evidence is Adduced
  3. When Both the Sides Adduce Evidence The Burden of Proof Becomes Academic/Insignificant
  4. Parties Cannot Withhold Best Evidence
  5. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved
  6. Burden of Proof in transaction with a Pardanashin Lady or Illiterate Ignorant Person
  7. The Doctrine of ‘non est factum’
  1. Burden to Prove Title in Suit for Declaration of Title or for Recovery of Possession Based on Title
  1. Burden of Proving Lack of Consideration for a Promissory Note
  1. Proof of Mala fides
  2. Proof of Benami Transaction
  3. Family Custom — Burden of Proof
  1. Burden of Proof as to the Authenticity of Electronic Evidence is upon the Person Producing the Same
  2. Burden of proving fact to be proved to make evidence admissible – Section 107 of the Bharatiya Sakshya Adhiniyam (Section 104 of the Evidence Act)
  3. For Offering Secondary Evidence Non-Production Of The Original Should Be Accounted For
  1. Burden of proving that case of accused comes within exceptions is on the Accused – Section 108 of the Bharatiya Sakshya Adhiniyam (Section 105 of the Evidence Act)
  1. Burden and Standard of Proof to Discharge the Burden in Claim of Insanity – Case Law
  1. Burden and Standard of Proof to Discharge the Burden in Claim of Private Defence – Case Law
  1. When Provocation was Sought by the Appellant Himself – Exception under (S.300 IPC) will not Apply
  1. Burden of proving fact especially within knowledge
  1. Case Based On Circumstantial Evidence – Duty of the Accused to Explain the Circumstances Appearing Against Him
  2. Last Seen Together – Duty to Explain
  1. Burden To Prove the Claim of Alibi or Any Such Plea is on the Accused – Standard of Proof is Lower Than That of The Prosecution
  2. Section 109 Does Not Absolve The Prosecution From Its Burden To Prove the Case
  3. Presumption of Continuance of Life and Presumption of Death
  1. Analysis of Sections 107 and 108
  1. There is No Presumption As To Time of Death
  2. An Occasion for Raising the Presumption Arises Only When the Question is Raised in a Court or Other Adjudicatory Authority
  1. Registrar of Births and Deaths Has No Power to Declare Civil Death
  1. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent – 112
  1. Burden of proof as to ownership -S 113
  1. Basic Elements of Section 113
  1. Possession is Good Title Against All the World Except the Rightful Owner
  1. When the Facts Disclose No Title With Either Party Possession Decides – ‘Title Follows Possession’ Applies
  2. ‘Jus tertii’ is Not a Defence
  3. When the Property is a Vacant Site the Principle ‘Possession Follows Title’ Applies
  4. Object of Section 113 is Public Policy and To Prevent Persons From Taking Law on to Their Hands
  5. Law Does Not Favour Taking Forceful Possession Even by the True Owner
  1. Meaning of Settled Possession and Protection of Settled Possession
  1. Proof of good faith in transactions where one party is in relation of active confidence – S 114
  2. Burden and Standard of Proof In Criminal Cases and the Modern Doctrine of Reverse Burden
  3. Reverse Burden and Statutory Presumptions in Special Criminal Statutes
  1. Some of the Provisions Which Provide for Reverse Burden of Proof
  1. Case Law on Reverse Burden
  2. Reverse Burden in Prevention of Corruption Act, 1947– Case Law
  3. Reverse Burden in NDPS ACT– Case Law
  4. Reverse Burden In Protection of Children from Sexual Offences Act (POCSO Act ) – Case Law
  5. PMLA Section 24 – Upheld by the Supreme Court-– Case Law

1. Introduction

The expression “Proved” is defined in Section 2(j) of the Bharatiya Sakshya Adhiniyam (Section 3 of the Evidence Act) as under:

“Proved”–A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

(Refer Module 2 for commentaries on Proved, disproved and not proved, proof beyond reasonable doubt and difference in standards of proof in civil and criminal cases)

The burden of proof is the obligation cast upon a party to establish or prove certain facts before the court. The Bharatiya Sakshya Adhiniyam or the Evidence Act does not precisely define ‘Burden of Proof’. In Section 104 of the Bharatiya Sakshya Adhiniyam (section 101 of the Evidence Act) it is stated that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam (Sections 101 to 103 of the Evidence Act) deals with burden of proof in general. Sections 107 to 109 of the Bharatiya Sakshya Adhiniyam (Sections 104 to 106 of the Evidence Act) deals with specific aspects of burden of proof. Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam (101 to 103 of the Evidence act) along with illustrations are reproduced hereunder:

Section 104: Burden of proof.

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and 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.

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

(b) A desires a Court to give judgment 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 section states that if someone is desirous of obtaining a judgement or an order from the courts upon some facts which he asserts are true and correct then he is required to prove the same.

The following example will help understand the provision better:

‘A’ asserts that a certain land belongs to him but ‘B’ has occupied the same claiming it to be his land. If ‘A’ wish to file a suit and obtain a decree stating that the land belongs to him then he is required to prove the same before the court to get a judgment in his favour. Hence, here the burden of proof is on Rita.

Section 105: On whom burden of proof lies.

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.

(a) 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 would be entitled to retain his possession.

Therefore, the burden of proof is on A.

(b)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.

This section states on whom does the burden of proof shall lie. In a suit or other proceedings, the burden of proof lies on the person who will suffer if no evidence is led. Usually, Person filing such complaint or suit will have to bear the loss if he/she is unable to convince the court with the facts that they are stating.

‘A’ has filed a suit for recovery of possession stating that the land which is in possession of ‘B’ belongs to him. Here, the burden of proof is on ‘A’ as he will lose if he fails to prove his title over the land.

Sometimes the burden may fall on the defendant. For example, in a suit for money based on a Promissory note, if the defendant admits execution of the promissory note but denies consideration. Here the burden to prove absence/lack of consideration is on the defendant and the defendant will fail if he doesn’t discharge such burden of proof.

Section 106: Burden of proof as to particular fact.

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustration

(a) 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.

This section mainly talks about the burden of proof in relation to a particular incident or fact. If a person wishes that the court should believe the existence of a particular fact then it is upon him to prove the same. In simple words it means that if a person wishes the court to believe the story that he/she has narrated then he/she will require to prove the same to the court.

Illustration:

Mr Chirag says that at the time of his neighbour’s murder he was not at home and was at his uncle’s place. In this case it is upon Mr Chirag to prove that he was at his uncle’s place.

Burden of Proof – Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam (101 to 103 of the Evidence Act)

General rule as to burden of proof is that “He who asserts must prove”. It is embodied in the Latin maxim “EI INCUMBIT PROBATIO  QUI DICIT NON QUI NEGAT” which means the burden of proof is upon the party who assert the affirmative of the issue and not on the party who denies. This is reflected in Chapter VII of the Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam especially in Sections 104 to 106 (Evidence Act Sections 101 to 103).

2. The Meaning/Different Senses in which The Phrase “Burden of Proof” is Employed

Supreme Court of India has in many judgments recognised and laid down that burden of proof is employed in two following senses:

  1. The burden of establishing a case. It is the burden as a matter of law and pleading. Burden of proof in this sense remains where it is/upon whom it is throughout the case/litigation and will never shift.
  2. The burden of proof in the sense of adducing evidence ie the evidential burden. The burden of proof /onus of proof in this sense keeps shifting during the pendency of the litigation depending upon the evidence introduced by one side or the other.

It is also often reiterated by the Supreme Court that when both parties adduce evidence the abstract question of burden of proof vanishes into air or becomes academic.

In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 (K. Subba Rao; Raghubar Dayal; J. R. Mudholkar, JJ), a 3 Judges bench of the Supreme Court observed as follows:

The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act (Bharatiya Sakshya Adhiniyam). The phrase “burden of proof” has two meaning – one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. To illustrate how this doctrine works in practice, we may take a suit on a promissory note. Under S.101 of the Evidence Act (Section 104 of the Bharatiya Sakshya Adhiniyam), “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.” Therefore, the burden initially rests on the plaintiff who has to prove that the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved the rule of presumption laid down in S.118 of the Negotiable Instruments Act helps him to shift the burden to the other side. The burden of proof as a question of law rests, therefore, on the plaintiff; but as soon as the execution is proved, S.118 of the Negotiable Instruments Act imposes a duty on the court to raise a presumption in his favour that the said instrument was made for consideration. This presumption shifts the burden of proof in the second sense, that is, the burden of establishing a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in S.114 and other sections of the Evidence Act. Under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), “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 the facts of the particular case.” Illustration (g) to that section shows that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such relevant evidence is withheld by the plaintiff, S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court, can under certain circumstances rebut the presumption of law raised under S.118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumptions of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact.

Narayan Bhagvantrao Gosavi Balajiwale v Gopal Vinayak Gosavi and Others AIR 1960 SC 100 (S. R. Das, C. J. I.; S. K. Das; M. Hidayatullah,) another 3 judges bench laid down:

The expression “burden of proof” really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence ……. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic. (See also Paras Nath Takur v Mohani Dasi AIR 1959 SC 1204)

3. One Who Asserts Must Prove and Onous of Proof Keeps Shifting as Evidence is Adduced

The well-established general principle with regard to the burden of proof is that, one who asserts must prove. Hence, the burden of proof rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it. Accordingly, the issue must be proved by the party who asserts it and not by the party who denies it.

Section 102 of the Indian Evidence Act (Section 105 of the Bharatiya Sakshya Adhiniyam) clearly provides that the burden of adducing evidence rests on the party who would lose, if no evidence is led by any of the parties. But it is to be noted that the burden to prove does not remain static and when a party adduces such evidence, as will support the prima facie case, the onus shifts on the defendant who has then to adduce rebuttal evidence to meet the case made out by the party.

We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. (Velayudhan v. Velayudhan AIR 2001 Ker. 123 : 2001 (1) KLT 392)

4. When Both the Sides Adduce Evidence The Burden of Proof Becomes Academic/Insignificant

In this regard, reference may be made to the decision rendered in Union of India v. Moksh Builders and Financiers Ltd. and Others, AIR 1977 SC 409 wherein, the Apex Court has laid down the law as follows:-

“The burden of proof is, however, not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgement would be given if no further evidence were adduced by either side i.e. on the evidence on record. Where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion. ……..”                   

In Kalwa Devadattam v. Union of India, AIR 1964 SC 880, it was reiterated that when both the parties have adduced evidence in support of their respective cases, the question of onus loses much of its weight and importance and in such a case the evidence is appreciated on the basis of probabilities and balance of the case of the parties.

This decision was quoted with approval by the Supreme Court in the later decision rendered in Union of India v. Moksh Builders and Financiers Ltd. and Others, AIR 1977 SC 409 (supra). The observation of the Court in Paragraph 16 of the judgement is as follows :-

“……..As has been held by this Court in Kalwa Devadattam v. Union of India, 1964 (3) SCR 191 : AIR 1964 SC 880 that where evidence has been led by the contesting parties on the question in issue, abstract consideration of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion”.

The Supreme Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and Others, AIR 1959 SC 31 held that “the question of burden of proof at the end of the case, when both parties have adduced their evidence is not of very great importance and the Court has come to a decision on a consideration of all materials”.

 

In view of the above, it is clear that where contesting parties have led evidence in support of their respective cases, the case of the parties has to be adjudged on the evidence led by the parties without allowing the abstract doctrine of onus of proof to come in the way.

Following are the observations of the Privy Council on the above aspects

In Kumbhan Lakshmanna and Others v. Tangirala Venkateswarlu and Others, AIR 1949 PC 278 Privy Council held as follows:

“…..the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background:”

In Harmes and Another v. Hinkson reported in AIR 1946 PC 156, the Privy Council has held that

“…. Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no conclusion. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered.”

In yet another decision rendered in Mohammad Aslam Khan and Others v. Feroze Shah reported in AIR 1932 PC 228 it has been held that

It is not necessary to enter upon a discussion of the question of onus where the whole of the evidence in the case is before the Court and it has no difficulty in arriving at a conclusion in respect thereof.”

5. Parties Cannot Withhold Best Evidence

The Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 (A), observed:

“A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough – they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordships’ opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”

This rule was again reiterated in Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 PC 95(B).

Quoted with approval by the Supreme Court in Hiralal and others v Badkulal and others AIR 1953 SC 225

In the case of Gopal Krishnaji v. Mohd. Haji Latif, AIR 1968 SC 1413, it is held that even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue. It is not in our opinion a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court, the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.

(See Illustration (g) to Section 114 (Section 119 of the Bharatiya Sakshya Adhiniyam) See Module 22 on presumptions, See also Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, Patel Naranbhai v. Dhulabhai, AIR 1992 SC 2009)

6. Whether Mere Admission of Signature Lead to a Presumption that the Execution of the Document is Admitted/Proved

In Velayudhan v. Velayudhan AIR 2001 Ker. Velayudhan v. Velayudhan (Sankarasubban; A. Lekshmikutty, JJ.) AIR 2001 Ker. 123: 2001 (1) KLT 392)123: 2001 (1) KLT 392, a division bench of the Kerala High Court surveyed through various judgments of different High Courts and correctly held that mere admission of signature will not prove execution and shift the Onus of proof. Court inter alia observed:

We found three types of cases: (1) When defendants merely submitted that signed papers were entrusted to a person and those papers were made use of for the purpose of executing an agreement. (2) The signed papers were given on the understanding that a particular document will be made. But contrary to that assurance, a different document was fabricated. (3) There are third sets of cases where the defendants even though have signed the documents, never intended to bring it in force. The Patna High Court while taking the view that presumption cannot be in favour of the plaintiff held that presumption under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam) and the illustrations given there “are based on long experience and have been drawn so often by Judges in England as well as in this country that many of them have come to be regarded almost as rules of law. The same however cannot be said with regard to the presumption, which we are asked to draw in this case considering that it is not too uncommon in this country for ignorant people to put their thumb impression on blank pieces of paper”. Further, it was held that S.114 (Section 119 of the Bharatiya Sakshya Adhiniyam) is a permissive and not a mandatory section and the court may, having regard to the circumstances of a particular case, refuse to raise a presumption in that cases such a presumption may be properly raised. On the other hand, the Nagpur High Court took the view that if nothing else is known then the mere fact that a document is proved to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. In our opinion, this inference arises in India directly from S.114 of the Evidence Act.

  1. To sign means to affix the signature. But when it comes to the signing of a written instrument, it implies more than the act of affixing a signature. It implies more than the clerical act of writing the name. The intention of the person signing is important. The person should have affixed the signature to the instrument in token of an intention to be bound by its conditions. It has been said that for a signing consists of both the act of writing a person’s name and the intention in doing this to execute, authenticate or to sign as a witness. The execution of a deed or other instrument includes the performance of all acts which may be necessary to render it complete as a deed or an instrument importing the intended obligation of every act required to give the instrument validity, or to carry it into effect or to give it the forms required to render it valid. Thus, the signature is an acknowledgement that the person signing has agreed to the terms of the document. This can be achieved only if a person signs after the document is prepared and the terms are known to the person signing. In that view of the matter, mere putting of signature cannot be said to be execution of the document.
  1. In Ramlakhan Singh v. Gog Singh, AIR 1931 Patna 219, a Division Bench of the Patna High Court held that the onus cannot be discharged merely proving the identity of the thumb impression. It must be further proved that the thumb impression was given on the document after it had been written out and completed. The fact that the defendant’s thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. But the fact remains that if the evidence offered by the plaintiff to prove that the document was duly executed or in other words, that the thumb impression was given on the document after it had been written out and completed is found to be unreliable, he cannot be deemed to have discharged the onus properly. Regarding the presumption under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), the Court held that although a certain presumption may arise in favour of the plaintiff, yet it may be rebutted at the same time by circumstances brought into light in the plaintiff’s own evidence by means of cross examination or otherwise and independently of the evidence adduced by the defendant. Thus, the Court held that the mere admission of the thumb impression or signature does not shift the burden from the plaintiff. In the same volume in Chulhai Lal Dass v. Kuldip Singh and Others, AIR 1931 Patna 266, another Division Bench took the view that where the defendant admits only that he had put a thumb mark or signature on a document which was not hand note sued upon, the admission does not amount to admission of the execution of the hand note and consequently the burden of proving that the particular hand note sued upon was duly executed by the defendant is upon the person issuing upon the same.

Person who signs the paper may not know what are the conditions, which will be imposed by the other side. Hence, in such circumstances, a general proposition cannot be laid down that the burden should be on the person, who has subscribed his signature to a blank paper. As it was stated in AIR 1931 Patna 219, the fact that the defendant’s thumb impression appears on the paper is a strong piece of evidence in favour of the plaintiff and in the majority of cases very slight evidence would be necessary to prove that the thumb impression was given on the document after it had been written out and completed. Thus, evidence that has to be adduced by the plaintiff in such case will be less onerous than in cases where there is complete denial of signature and execution. But if the plaintiff’s evidence is not sufficient or unreliable that onus cannot be said to be discharged. We may further say that always the burden of proof is on the person, who wants to get relief in the suit. As always stated, onus of proof shifts during the pendency of the litigation depending upon the nature of the evidence given by either side. The plaintiff may give evidence regarding the execution of the document. If the fact of thumb impression or signature is admitted, that will give more reliability to the plaintiff’s evidence. If such evidence adduced by the plaintiff is reliable and if the plaintiff is able to discharge his burden sufficiently, then onus will shift on the defendant to show that he had not executed the document. We only say that the plaintiff cannot succeed in the case without giving evidence. Because the defendant had admitted his signature, he had to give some evidence to show that the document has been properly executed. Further things depend upon the evidence adduced and on facts and circumstances of each case. When both sides have adduced evidence, the question of burden to proof vanishes into the air.

Now we will move on to burden of proof in a few specific types of cases:

7. Burden of Proof in transaction with a Pardanashin Lady or Illiterate Ignorant Person

Because of their vulnerable nature law favours and protects the interest of Pardanashin lady, and persons with relevant such other disabilities like old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience, dependence upon others, in their transactions with others and casts burden upon the person who sets up validity of a deed executed by a Pardanashin lady or such others.

Annapurna Barik De and Another v Inda Bewa and Others AIR 1995 Ori 273, the Orissa high court observed:

A person who transacts with a Pardanashin or illiterate lady has to show that the terms are fair and equitable, and that she had been given independent advice in the matter. To charge such a lady, upon an instrument alleged to have been executed by her, it must be shown by satisfactory evidence that the document had been explained to and understood by her. Where a person sets up the validity of a deed executed by a Pardanashin or illiterate lady, the onus is upon him to prove that she had understood the nature and effect of her act. As observed by the apex Court in Mst. Kharbuja Kaur v. Jangbahadur Rai, AIR 1963 SC 1203, Pardanashin ladies have been given a special protection in view of the social conditions of the time; they are presumed to have an imperfect knowledge of the world, as, by the purdah system they are practically excluded from social intercourse and communion with outside world. The burden of proof shall always rest upon a person who seeks to sustain a transaction entered into with a Pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct or circumstantial. Rules regarding transactions by a Pardanashin lady are equally applicable to an illiterate and ignorant woman, though she may not be a Pardanashin. It is not by reason of the Pardah itself that the law throws its protection round a Pardanashin lady, but by reason of those disabilities which a life of seclusion lived by a Pardanashin lady gives rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience and dependence upon others, may by themselves create disabilities that may render the protection equally necessary. If, therefore, it is proved that a woman, although she is not a Pardanashin lady, suffers from the disabilities to which a Pardanashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of the above principles which are applied to a deed by a Pardanashin lady. In the case at hand, an illiterate and rustic lady, who is devoid of intelligence, appears to have reposed confidence on a person, who had rendered help to her. But there was no compassion in such help; mala fides lay hidden behind it. Therefore, there can be no doubt that she was entitled to protection under the law as a Pardanashin lady.

In Ramdeo v Dulari Devi AIR 1996 All 253, Allahabad explained the principle as under:

It is an established principles of law that when an illiterate person executes some document then the person in whose favour the document is executed has burden to prove that the document has been executed by the said executant. Vide Parasnath Rai v. Tilesara Kaur, 1965 ALJ 1080;

“Obviously it is not by reason of the pardah itself that the law throws its protection round a pardahnashin lady but the reason of those disabilities which a life of seclusion lived by a Pardahashin lady rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience, dependence upon others, may by themselves create disabilities that may render the protection equally necessary. If ,therefore, it is proved that a woman although she is not a pardahnashin lady suffers from the disabilities to which a pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a pardahnashin lady.”

8. The Doctrine of ‘non est factum’

If either party or both parties do not understand any term in the contract, there is no meeting of the minds consensus ad idem.

The principle of non est factum permits one who has signed a written document, which is essentially different from that which he intended to sign, to plead that, notwithstanding his signature, it is not his deed in contemplation of law. In order to succeed in the defence of non est factum, person executing the document must show that the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. So far as illiterate persons are concerned, this doctrine has been applied if it proved that the mind did not accompany the signature when the document was executed. (See Chandran Nair v Krishnan 1997 (1) KLT 656: ILR 1997 (3) Ker. 164)

In one of the earlier decisions, Kwamin Bassayin v. Bendentu II, AIR 1937 PC 274 – the Privy Council observed thus:

“Where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document”.

This doctrine was equally applied in the case of pardanashin lady also. A case relating to execution of a document by pardanashin lady came before the Supreme Court and it is reported in Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203. In that case, the Supreme Court examined the burden of proof in such cases. It referred to the decision in Geresh Chander Lahoree v. Mst. Bhuggobutty Debia – (1870) 13 MIA 419. In that decision, it is held thus:

“… as regards documents taken from pardanashin women the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply in the case of a pardanashin woman”. This view, which was affirmed in subsequent decisions, was modified to some extent, with regard to the nature of the mode of discharging the burden.

In Farid-Un-Nisa v. Mukhtar Ahmad, AIR 1925 PC 204, it was observed thus:

“The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not If the answer is in the affirmative, these relying on the deed have discharged the onus which rests upon them.”

It was also held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. This view was reiterated by the Judicial Committee of Privy Council in Jagadish Chandra v. Debnath AIR 1940 PC 134.

Considering the above decisions, Supreme Court in Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203 – held as follows:

“The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with the pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial”.

9. Burden to Prove Title in Suit for Declaration of Title or for Recovery of Possession Based on Title

In a suit for declaration of title, the burden of proof is only upon the plaintiff to prove the title and this burden will never get shifted to the defendant till the plaintiff discharges his burden. (Pazhamalai v Muruganandam AIR 2022 Mad. 200).

Suit for recovery of possession of land on the basis of title — It is obligatory on the part of plaintiff to prove the plaintiff’s title to the suit land. (MTW Tenzing Namgyal and Ors v Motilal Lakhotia and Ors AIR 2003 SC 1448).

10. Burden of Proving Lack of Consideration for a Promissory Note

In a case of Promissory note executed by A, Burden of proving that no consideration passed under it is on A who denies that he received consideration ( See Presumption under S118 of the Negotiable Instruments Act) .

When Admission by A in another deed that he had received the amount of the promissory note, is proved, then the burden is on A to prove that the admission was made under a mistake and is not true. (Kishore Chandra Deo v Babu Ganesh Prasad Bhagath and others AIR 1954 SC 316 -four judges bench)

11. Proof of Mala fides

It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. The Supreme Court observed in Union of India v. Ashok Kumar and Others, 2005 (8) SCC 760 that “it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility.” (See also Uniworth Textiles Ltd. (M/s.) v. Commissioner of Central Excise, Raipur 2013 (9) SCC 753)

12. Proof of Benami Transaction

In, Krishnanand Agnihotri v State of M P; AIR 1977 SC 796 (P. N. Bhagwati; A. C. Gupta; P. N. Shinghal,) it was laid down by the Supreme Court as under:

It is well settled that the burden of showing that a particular transaction is benami and the appellant owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. (Vide Jayadayal Poddar v. Mst. Bibi Hazra, 1974 (2) SCR 90 = (AIR 1974 SC 171). It is not enough merely to show circumstances which might create suspicion, because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. (See also Jayadayal Poddar v. Mst. Bibi Hazra, AIR 1974 SC 171)

13. Family Custom — Burden of Proof

Burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it is incumbent on him to prove by clear and cogent evidence that there is a family custom excluding the females for taking as heirs. A statement as to custom from a person of the age of twenty-two cannot command much weight as that must largely depend on his means of knowledge. (See Mohammad Baqar and others v Naim Un Nisa Bibi and others AIR 1956 SC 548)

Burden to prove custom as to devolution of Mahantship of Turki Math from a Guru to senior most chella is on the person who claims Mahantship on the basis of seniority (Mahanth Bhagwan Bhagath v G N Bhagath and others  AIR 1972 SC 814   (J. M. Shelat; I. D. Dua; H. R. Khanna; G. K. Mitter, JJ))

14. Burden of Proof as to the Authenticity of Electronic Evidence is upon the Person Producing the Same

The burden of proof in relation with the electronic evidence being authentic and correct is upon the person producing the same. (See Sections 62 and 63 of the Bharatiya Sakshya Adhiniyam (Sections 65 A and 65 B of the Evidence Act) and Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors)

15. Burden of proving fact to be proved to make evidence admissible – Section 107 of the Bharatiya Sakshya Adhiniyam (Section 104 of the Evidence Act)

Section 107 reads as under:

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

(a) A wishes to prove a dying declaration by B. A must prove B’s death.

(b) A wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

16. For Offering Secondary Evidence Non-Production Of The Original Should Be Accounted For

For admission of the Secondary evidence the non – production of the original should be accounted for, so as to bring it within one or other of the cases provided for in Section 60 of the Bharatiya Sakshya Adhiniyam (section 65 of the Evidence Act). The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.

Supreme Court has in many cases reiterated, the general rule that secondary evidence is not admissible until the non – production of primary evidence is satisfactorily explained and foundational facts are proved.

Case Law

In J. Yashoda v. K. Shobha Rani, 2007 (5) SCC 730, after analyzing the language employed in S.63 and S.65 (a) of the Evidence Act, (Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam),  the Supreme Court held as follows: –

“S.65 (Section 60 of the Bharatiya Sakshya Adhiniyam) however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non – production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section.”

In M. Chandra v. M. Thangamuthu and Other, 2010 (9) SCC 712, it has been held as follows: –

“It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.”

In H. Siddiqui (Dead) by Lrs. v. A. Ramalingam, 2011 (4) SCC 240, while

dealing with S.65 of the Evidence Act (Section 60 of the Bharatiya Sakshya Adhiniyam), the Supreme Court opined that though the said provision permits the parties to adduce secondary evidence, yet such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non – production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It has been further held that mere admission of a document in evidence does not amount to its proof. Therefore, it is the obligation of the Court to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.

17. Burden of proving that case of accused comes within exceptions is on the Accused – Section 108 of the Bharatiya Sakshya Adhiniyam (Section 105 of the Evidence Act)

Section 108 of the Bharatiya Sakshya Adhiniyam (Section 105 of the Evidence Act) reads as under:

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 Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Illustrations.

(a)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.

(b)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.

(c)Section 117 of the Bharatiya Nyaya Sanhita, 2023 provides that whoever, except in the case provided for by sub-section (2) of section 122, voluntarily causes grievous hurt, shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under section 117.

The burden of proving the circumstances bringing the case under sub-section (2) of section 122 lies on A.

Chapter IV in IPC comprising Sections 76 to 105 deals with general exceptions including insanity, consent, private defence etc.

Section 122(2) of the Bharatiya Nyaya Sanhita, 2023 (Section 335 of the IPC) reads as:

Voluntarily causing grievous hurt on provocation

Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to five years or with fine which may extend to ten thousand rupees, or with both.

It is settled law that on the question whether the incident was an accident , the accused was exercising his right to private defence or he was insane or entitled to any other exceptions the burden of proof would be on the accused.

The standard of proof to discharge the burden on the accused is Preponderance of Possibilities and not proof beyond doubt. Whereas the standard of proof on the prosecution to prove the guilt of the accused is proof beyond reasonable doubt.

18. Burden and Standard of Proof to Discharge the Burden in Claim of Insanity – Case Law

In Elavarasan v. State Rep. by Inspector of Police AIR 2011 SC 2816 the Supreme Court laid down the law with respect to the burden of proof under Section 108 of the Bharatiya Sakshya Adhiniyam (section 105 of the Evidence Act) upon the accused as to insanity as under:

Before adverting to the evidence on record as regards the plea of insanity set up by the appellant, we consider it necessary to refer to two aspects that bear relevance to cases where a plea of insanity is raised in defence by a person accused of a crime. The first aspect concerns the burden of proving the existence of circumstances that would bring the case within the purview of S.84 of the IPC (Section 22 of the Bharatiya Nyaya Sanhita). It is trite that the burden of proving the commission of an offence is always on the prosecution and that the same never shifts. Equally well settled is the proposition that if intention is an essential ingredient of the offence alleged against the accused the prosecution must establish that ingredient also. There is no gainsaying that intention or the state of mind of a person is ordinarily inferred from the circumstances of the case. This implies that, if a person deliberately assaults another and causes an injury to him then depending upon the weapon used and the part of the body on which it is struck, it would be reasonable to assume that the accused had the intention to cause the kind of injury which he inflicted. Having said that, S.84 (Section 22 of the Bharatiya Nyaya Sanhita) can be invoked by the accused for nullifying the effect of the evidence adduced by the prosecution. He can do so by proving that he was incapable of knowing the nature of the act or of knowing that what he was doing was either wrong or contrary to law. But what is important is that the burden of bringing his / her case under S.84 of the IPC (Section 22 of the Bharatiya Nyaya Sanhita) lies squarely upon the person claiming the benefit of that provision. S.105 of the Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam) is in this regard relevant. …

 A careful reading of the above would show that not only is the burden to prove an exception cast upon the accused but the Court shall presume the absence of circumstances which may bring his case within any of the general exceptions in the Indian Penal Code or within any special exception or provision contained in any part of the said Code or in law defining the offence. The following passage from the decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, [ AIR 1964 SC 1563: 1964 (2) CriLJ 472 K. Subba Rao; K. C. Das Gupta; Raghubar Dayal, JJ] may serve as a timely reminder of the principles governing burden of proof in cases where the accused pleads an exception:

‘The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:

(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S.84 of the Indian Penal Code (Section 22 of the Bharatiya Nyaya Sanhita) the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.’

 The second aspect which we need to mention is that the standard of proof which the accused has to satisfy for the discharge of the burden cast upon him under S.105 (Section 108 of the Bharatiya Sakshya Adhiniyam) is not the same as is expected of the prosecution. A long line of decisions of this Court have authoritatively settled the legal proposition on the subject. Reference in this connection to the decision of this Court in State of U.P. v. Ram Swarup and Another, [AIR 1974 SC 1570] should suffice where this Court observed:

‘The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in his favour.’

 (See also Bhikari v. State of Uttar Pradesh, [AIR 1966 SC 1: 1966 CriLJ 63).

In Tikaram Krishnalal Pandey, 2013 CriLJ 2410 V. K. Tahilramani; Sadhanas S. Jadhav, JJ. Bombay High Court summarised the law and held:

The question whether the appellant has proved the existence of circumstances bringing his case within the purview of S. 84 (Section 22 of the Bharatiya Nyaya Sanhita) will have to be examined from the totality of circumstances. The unsoundness of mind as a result whereof one is incapable of knowing consequences is a state of mind of a person which, ordinarily can be inferred from the circumstances.

The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:

(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.

(2) There is a rebuttable presumption that the accused was not sane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code (Section 22 of the Bharatiya Nyaya Sanhita); the accused may rebut it by placing before the Court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the accused is not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof, resting on the prosecution was not discharged. (Kali alias Kalidoss alias Kalirajan v State 2017 CriLJ 4804 M. M. Sundresh; N. Sathish Kumar, JJ, a division bench of the Madras High Court)

19. Burden and Standard of Proof to Discharge the Burden in Claim of Private Defence – Case Law

In Pratap v State of U.P, AIR 1976 SC 966: 1976 CriLJ 697, (M. H. Beg; P. N. Bhagwati; R. S. Sarkaria, JJ), a 3 judges bench of the Supreme Court speaking through Justice R. S. Sarkaria relied on a 9 judges Allahabad High Court Judgment, and  observed:

We have carefully scrutinised the judgments of the courts below. In our opinion, their finding in regard to the plea of self defence is clearly erroneous. They appear to have overlooked the distinction between the nature of burden that rests on an accused under S.105, Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam) to establish a plea of self defence and the one cast on the prosecution by S.101 (Section 104 of the Bharatiya Sakshya Adhiniyam) to prove its case. It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.

In Rishi Kesh Singh v. the State, AIR 1970 All 51 (FB), a Full Bench of nine Judges of the Allahabad High Court (at page 51) observed:

‘The accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused.”

The law in relation to the provisions of S.105 of the Evidence Act was summed up as follows (at page 97-98):

“… an accused’s plea of an exception may reach one of three not sharply demarcated stages, one succeeding the other, depending upon the effect of the whole evidence in the case judged by the standard of a prudent man weighing or balancing probabilities carefully. These stages are. Firstly, a lifting of the initial obligatory presumption given at the end of S.105 of the Act (Section 108 of the Bharatiya Sakshya Adhiniyam); secondly, the creation of a reasonable doubt about the existence of an ingredient of the offence; and, thirdly a complete proof of the exception by a preponderance of probability’, which covers even a slight tilt of the balance of probability in favour of the accused’s plea. The accused is not entitled to an acquittal if his plea does not go beyond the first stage. At the second stage, he becomes entitled to acquittal by obtaining a bare benefit of doubt. At the third stage, he is undoubtedly entitled to an acquittal. …..”

Provisions of S.105 of the Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam), which are applicable in such cases, contain what are really two kinds of burden on the accused who sets up an exception: firstly, there is the onus laid down of proving the existence of circumstances “bringing the case within any of the General Exceptions in the Indian Penal Code, or, within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence”,

and, secondly, there is the burden of introducing or showing evidence which results from the last part of the provision which says that “the Court shall presume the absence of such circumstances.” The effect of this obligatory presumption at the end of S.105 of the Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam) is that the Court must start by assuming that no facts exist which could be taken into consideration for considering the plea of self-defence as an exception to the criminal liability which would otherwise be there. But, when both sides have led evidence of their respective versions, the accused can show, from any evidence on the record, whether tendered by the prosecution or the defence, that the mandatory presumption is removed. The last mentioned burden is not really a burden of establishing the plea fully but of either introducing or of showing the existence of some evidence to justify the taking up of the plea. The burden resulting from the obligatory presumption is not difficult to discharge and its removal may not be enough for an acquittal.

S.105 of the Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam) was thus explained in Rishi Kesh Singh’s case (supra) (at p. 95):

“Even a literal interpretation of the first part of S.105 could indicate that “the burden of proving the existence of circumstances bringing the case” within an exception is meant to cover complete proof of the exception pleaded, by a preponderance of probability, as well as proof of circumstances showing that the exception may exist which will entitle the accused to the benefit of doubt on the ingredients of an offence. If the intention was to confine the benefit of bringing a case within an exception to cases where the exception was established by a preponderance of probability, more direct and definite language would have been employed by providing that the accused must ‘prove the existence’ of the exception pleaded. But, the language used in the first part of S.105 (Section 108 of the Bharatiya Sakshya Adhiniyam) seems to be deliberately less precise so that the accused, even if he fails to discharge his duty fully, by establishing the existence of an exception, may get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused. Again, the last part of S.105 (Section 108 of the Bharatiya Sakshya Adhiniyam), even if strictly and literally interpreted, does not justify reading into it the meaning that the obligatory presumption must last until the accused’s plea is fully established and not just till circumstances (i. e. not necessarily all) to support the plea are proved. Moreover, a restrictive interpretation of S.105(Section 108 of the Bharatiya Sakshya Adhiniyam), excluding an accused from the benefit of branding his case within an exception until he fully proves it, is ruled out by the declaration of law by the Supreme Court that there is no conflict between S.105 (Section 108 of the Bharatiya Sakshya Adhiniyam) and the prosecution’s duty to prove its case beyond reasonable doubt. Hence, the obligatory presumption, at the end of S.105 (Section 108 of the Bharatiya Sakshya Adhiniyam), cannot be held to last until the accused proves his exception fully by a preponderance of probability. It is necessarily removed earlier or operates only initially as held clearly by judges taking the majority view in Parbhoo’s case, 1941 All LJ 619: AIR 1941 All 402 (FB).”

 It was also said there (at page 89):

“The legal position of a state of reasonable doubt may be viewed and stated from two opposite angles. One may recognise, in a realistic fashion, that, although the law prescribes only the higher burden of the prosecution to prove its case beyond reasonable doubt and the accused’s lower burden of proving his plea by a preponderance of probability only, yet, there is, in practice, a still lower burden of creating reasonable doubt about the accused’s guilt and that an accused can obtain an acquittal by satisfying this lower burden too in practice. The objection to stating the law in this fashion is that it looks like introducing a new type of burden of proof, although, it may be said, in defence of such a statement of the law, that it only recognises what is true. Alternatively, one may say that the right of the accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution’s undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded. This technically more correct way of stating the law was indicated by Woolmington’s case and adopted by the majority in Parbhoo’s case, and, after that, by the Supreme Court. It seems to me that so long as the accused’s legal duty to prove his plea fully as well as his equally clear legal right to obtain the benefit of reasonable doubt, upon a consideration of the whole evidence, on an ingredient of an offence, are recognised, a mere difference of mode in describing the position, from two different angles, is an immaterial matter of form only. Even if the latter from appears somewhat artificial, it must be preferred after its adoption by the Supreme Court.” (See: K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605).

In Pratap v State of U.P, AIR 1976 SC 966: 1976 CriLJ 697, (M. H. Beg; P. N. Bhagwati; R. S. Sarkaria, JJ), in his concurring separate judgment of Justice M. H. Beg fully endorsed the above views of the above 9 judges bench of the Allahabad High Court in Rishi Kesh Singh v. the State, interestingly majority view in that judgment was also authored by Justice M. H. Beg, while he was a judge of Allahabad High Court.

20. When Provocation was Sought by the Appellant Himself – Exception under (S.300 IPC) will not Apply

In Raj Kumar v State of Maharashtra 2009 (15) SCC 292 (R. V. Raveendran; J. M. Panchal, JJ). The Supreme Court observed:

Though the appellant failed to prove the existence of circumstances bringing his case within ‘Exception 1’ to S.300, (Section 101 of the Bharatiya Nyaya Sanhita) the Court may look to the evidence of prosecution to find out whether the burden cast by S.105 of the Indian Evidence Act (Section 108 of the Bharatiya Sakshya Adhiniyam) stands discharged by the appellant by preponderance of probabilities. The deceased in her two dying declarations has clearly mentioned that when she refused to accede to the demand of the appellant to withdraw the maintenance proceedings, the appellant had inflicted blow with Stone Rolling Pad on her head. Exception 1 to S.300 (Section 101 of the Bharatiya Nyaya Sanhita) has certain provisos. The first proviso states that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing any person. Here in this case the wife, who was neglected by the appellant and was not able to maintain herself and her son, was justified in initiating maintenance proceedings against the appellant. The appellant could not have insisted that the proceedings against him for maintenance should be withdrawn by the deceased. Further when a lady, entitled to initiate maintenance proceedings against her husband, refuses to accede to unreasonable demand made by her husband to withdraw the maintenance proceedings, it can hardly be said that her denial to accede to such unreasonable demand would amount to grave and sudden provocation within the meaning of ‘Exception 1’ of S.300 IPC. In any view of the matter the facts of the case clearly indicate that the so called provocation was sought by the appellant himself as an excuse for killing his wife and, therefore, the appellant is not entitled to the benefit of the provisions of ‘Exception 1’ to S.300 IPC (Section 101 of the Bharatiya Nyaya Sanhita).

21. Burden of proving fact especially within knowledge

Section 109 of the Bharatiya Sakshya Adhiniyam (Section 106 of the Evidence Act) reads as:

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

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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

Under Section 104 of the Bharatiya Sakshya Adhiniyam (S.101 of the Evidence Act), whoever desires any Court to give a judgment as to a liability dependent on the existence of facts, he must prove that those facts exist. Therefore, the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Section 109 of the Bharatiya Sakshya Adhiniyam ( S 106 of the Evidence Act) constitutes an exception to Section 104 of the Bharatiya Sakshya Adhiniyam ( S 101 of the Evidence Act).

On the issue of applicability of S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam), the Supreme in a well-articulated decision Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404: 1956 CriLJ 794, observed: –

“S.106 ( Section 109 of the Bharatiya Sakshya Adhiniyam) is an exception to S.101 (Section 104 of the Bharatiya Sakshya Adhiniyam). S.101 lays down the general rule about the burden of proof. “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”.

Illustration (a) says –

“A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime”.

This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre – eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.

Illustration (b) to S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) has obvious reference to a very special type of case, namely to offences under S.112 and S.113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.

We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be “especially” within the knowledge of the accused. This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well-established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”

In Razik Ram v J.S Chouhan and others, AIR 1975 SC 667, the Supreme Court observed:

…the principle underlying S.106, Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) which is an exception to the general rule governing burden of proof – applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent.

22. Case Based On Circumstantial Evidence – Duty of the Accused to Explain the Circumstances Appearing Against Him

In Nagendra Sah v State of Bihar 2021 (10) SCC 725 (Ajay Rastogi; Abhay S. Oka, JJ) the above view has been reiterated and the Supreme Court observed:

Thus, S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam), such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.

23. Last Seen Together – Duty to Explain

In Mohd Firoz v State of Madhya Pradesh, AIR 2022 SC 1967 (Uday U. Lalit; S. Ravindra Bhat; Bela M. Trivedi), the Supreme Court held:

Once the theory of “last seen together” was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam), such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non – furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim.

In case of Rajender vs. State (NCT of Delhi), 2019 (10) SCC 623, the Supreme Court has succinctly dealt with the doctrine of “last seen together” in the light of S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam). The relevant observations read as under:

“Having observed so, it is crucial to note that the reasonableness of the explanation offered by the accused as to how and when he / she parted company with the deceased has a bearing on the effect of the last seen in a case. S.106 of the Evidence Act, 1872 (Section 109 of the Bharatiya Sakshya Adhiniyam) provides that the burden of proof for any fact that is especially within the knowledge of a person lies upon such person. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) only lays down the rule that when the accused does not throw any light upon facts which are specially within his / her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.”

 In Satpal vs. State of Haryana, 2018 (6) SCC 610, the Supreme Court observed:

“We have considered the respective submissions and the evidence on record. There is no eyewitness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under S.106 of the Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine.”

24. Burden To Prove the Claim of Alibi or Any Such Plea is on the Accused – Standard of Proof is Lower Than That of The Prosecution

Burden to Prove the claim of Alibi is on the Accused (Gurucharan Singh and another v State of Punjab, AIR 1956 SC 460: 1956 CriLJ 827).

 In Sawal Das v State of Bihar AIR 1974 SC 778: 1974 CriLJ 664 (M. H. Beg; P. N. Bhagwati, JJ), the Supreme Court observed:

“This Court held in Gurcharan Singh v. State of Punjab, AIR 1956 SC 460: 1956 CriLJ 827, that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt.

Neither an application of S.103 nor of 106 of the Evidence Act (Section 106 nor section 109 of the Bharatiya Sakshya Adhiniyam) could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.”

25. Section 109 Does Not Absolve The Prosecution From Its Burden To Prove the Case

In Razik Ram v J.S Chouhan and others, AIR 1975 SC 667, the Supreme Court observed:

…the principle underlying S.106, Evidence Act (Section 109 of the Bharatiya Sakshya Adhiniyam) which is an exception to the general rule governing burden of proof – applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent.

In Shambu Nath Mehra v. State of Ajmer, AIR 1956 SC 404, (Vivian Bose; N. Chandrasekhara Aiyar, JJ), the Supreme court had aptly explained the scope of S.106 of the Evidence Act in criminal trial. It was held in para 9:

” This lays down the general rule that in a criminal case the burden of proof is on the prosecution and S.106 (Section 109 of the Bharatiya Sakshya Adhiniyam) is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre – eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. it is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor (AIR 1936 PC 169] and Seneviratne v. R. ((1936) 3 All ER 36, 49]”

26. Presumption of Continuance of Life and Presumption of Death

The Presumption of Continuance of Life and Presumption of Death are embodied in Sections 110 and 111 of the Bharatiya Sakshya Adhiniyam (Sections 107 and 108 of the Evidence Act) respectively.

The reason for the presumption is that it has been found necessary, on grounds of public policy, that rights depending on life or death of persons long absent and unaccounted for, should not remain in abeyance indefinitely but should be settled according to some fixed rule.

The provisions read as under:

Section 110: Burden of proving death of person known to have been alive within thirty years.

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

Section 111: Burden of proving that person is alive who has not been heard of for seven years.

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

27. Analysis of Sections 107 and 108

In Jayalekshmi Ammal v Gopala Pather AIR 1995 SC 995 (N. Venkatachala; K. S. Paripoornan, JJ.), the Supreme Court analysed the provisions and observed:

S.107 of the Indian Evidence Act (Section 110 of the Bharatiya Sakshya Adhiniyam deals with presumption of continuation of life and S.108 (Section 111 of the Bharatiya Sakshya Adhiniyam) deals with the presumption of death.

The principle discernible from a combined effect of the above two statutory provisions has been summarised in the book, Sir John Woodroffe and Amir Ali’s ‘Law of Evidence,’ 15th Edn. (1991) at pages 672-673 thus:

“The principle of S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam) is that when once a state of things is shown to exist, there is in law a presumption of its continuance for a period for which such state of things ordinarily lasts. This section is merely a deduction from this presumption. If a person is shown to have been alive within thirty years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive, and the burden of proving that he is dead lies on him who asserts that he is dead. But this presumption is rebutted, if it is shown that he has not been heard of for seven years by those who if he had been alive, would naturally have heard of him; and, on such proof being given the burden of proving that he is still alive, is, under S.108(Section 111 of the Bharatiya Sakshya Adhiniyam), upon those who assert that he is alive. The presumption under S.108 (Section 111 of the Bharatiya Sakshya Adhiniyam) is as to the fact of death at the time the question was raised and not at any particular antecedent time. There is no presumption also to the cause and circumstances of the death.

S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam)deals with the presumption of continuation of life, whereas S.108 (Section 111 of the Bharatiya Sakshya Adhiniyam)deals with the presumption of death. S.108 enacts a proviso to S.107 by specifying that when a person was continuously absent for seven years and lie was not heard by his friends and neighbours he may be presumed to have died and the burden of proving that he is alive shifts on the person that he is alive. The presumption of continuance of life under S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam)ceases at the expiration of seven years from the period when the person in question was last heard of. The presumption under S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam)will apply when the question is whether a person was alive or dead and not who re the question is whether the person was alive or dead on a particular date.”

28. There is No Presumption As To Time of Death

It is a settled proposition that there is no presumption as to time of death.

In Jayalekshmi Ammal v Gopala Pather AIR 1995 SC 995 (N. Venkatachala; K. S. Paripoornan, JJ.), the Supreme Court, further laid down:

The Judicial Committee of the Privy Council, more than 60 years ago, in the leading case Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9, stated the law authoritatively thus:

“There is only one presumption, and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof.

These words taken originally from In re, Phene’s Trusts run as follows:

‘If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential.’

Following these words, it is constantly assumed — not perhaps unnaturally — that where the period of disappearance exceeds seven years, death, which may not be presumed, at any time during the period of seven years, may be presumed to have taken place at its close. This, of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years.”

‘In M. Monir’s Principles and Digest of the Law of Evidence, Vol.2, 7th Edn. at page 1145, the law on the point is succinctly summarised thus:

“The only presumption enjoined by S.108 of the Evidence Act (Section 111 of the Bharatiya Sakshya Adhiniyam)being that a person who has not been heard of for seven years or more is dead at the time the question is raised, there can be no presumption of his being dead or alive at any particular time of the period for which he has not been heard of. There, is neither any presumption of his being alive for a period of seven years from the time he was last heard of: nor any presumption of his having died immediately after his disappearance, nor any presumption of his being alive or dead at any particular time antecedent to the suit or proceeding in which the question of his being dead or alive arises. The result, therefore, is that where nothing more is shown, than that a person has not been heard of for seven years or more, the party, on whom the burden of proving him to be alive or dead at any particular time during the period he has not been heard of ties, will fail.”

Sarkar on Evidence, 14th Edn,, at page 1438, has summarised the law after a detailed survey of the decisions of the various Courts thus:

“If a person is not heard of for seven years there is a presumption of the fact of death at the expiration of seven years, but the exact time of death is not a matter of presumption but of evidence and the onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. There is no presumption that death took place at the close of seven years.”

29. An Occasion for Raising the Presumption Arises Only When the Question is Raised in a Court or Other Adjudicatory Authority

In LIC of India v Anuradha AIR 2004 SC 2070 (R. C. Lahoti; Dr. AR. Lakshmanan, JJ), the Supreme Court summed up the law as under:

The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in S.107 and 108 of the Indian Evidence Act 1872 (Sections 110 and 111 of the Bharatiya Sakshya Adhiniyam). In the scheme of Evidence Act, though S.107 and 108 are drafted as two Sections, in effect, S.108(Section 111 of the Bharatiya Sakshya Adhiniyam) is an exception to the rule enacted in S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam). The human life shown to be in existence, at a given point of time which according to S.107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in S.108 (Section 111 of the Bharatiya Sakshya Adhiniyam). If the persons, who would have naturally and in the ordinary Course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under S.107 (Section 110 of the Bharatiya Sakshya Adhiniyam) ceases to operate. S.107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. S.108 (Section 111 of the Bharatiya Sakshya Adhiniyam), subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under S.108 is a limited presumption confined only to presuming the factum of death of the person who’s life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to S.108 (Section 110 of the Bharatiya Sakshya Adhiniyam) would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.

It is trite that no presumption as to the date or time of death is available. Whether a person is alive or dead should be a question arising in a suit or proceeding and then only the said provisions would operate. In other words, a presumption being not evidence in itself and only a rule concerning evidence, it can be put forward only in a properly instituted suit or proceeding. (Devaki Amma Kamalamma and another v Grace Appi Amma and others, ILR 2018 (1) Ker. 539 A. Hariprasad, J.  Kerala High Court )

It is settled that the presumption of death is practically available for all legal purposes including proceedings relating to property. It is to be noted that the burden of proving the facts giving rise to the presumption lies on the party invoking the presumption. …. a rebuttable presumption of law that the person died sometime within the period of 7 years or more, must be applied with caution to prevent fraud and injustice. (Vasantha P and others v Southern Railway and another 2021 KHC OnLine 357: 2021 (4) KLT 342)

30. Registrar of Births and Deaths Has No Power to Declare Civil Death

…..in order to declare the civil death of a person there is no power vested with the Registrar of Births and Deaths under the Registration of Births and Deaths Act, 1969. The Indian Evidence Act, 1872 applies to the courts considering the questions before it and not to an administrative authority discharging the functions in the matter of issuance of a death certificate. To put it otherwise, the 2nd respondent is not vested with powers to adjudicate the issue in question and declare that a person has suffered civil death and then issue a death certificate. ( See Libin Augustian and Another v Corporation of Kochi AIR 2022 Ker. 120)

31. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent – S112

Section 112 of the Bharatiya Sakshya Adhiniyam (Section 109 of the Evidence Act) reads as under:

When the question is whether 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.

The presumption under this section applies to 1. Partnership, 2.  Landlord and tenant and 3. Principal and Agent.

Once it is proved or admitted that A and B were acting as partners or Landlord and tenant or principal and agent then the presumption comes into operation and one who asserts that they do not stand in such relation or ceased to be so, have to rebut this presumption and prove otherwise.

In Harish Chander and others v Gisha Ram and Another, 1981 (1) SCC 431: AIR 1981 SC 695 (A. D. Koshal; Baharul Islam, JJ), the person who was recorded as a tenant in the Jamabandhi register filed a suit for pre-emption, the purchaser opposed the suit. The supreme Court held that Mere allegation of the purchaser that he was put in possession of the land two years prior to sale would be of no avail in the absence of cogent explanation as to way he did not get the entry in the relevant record corrected showing his possession before the sale deed was registered. The Court observed:

……by reason of the rule contained in S.109 of the Indian Evidence Act (Section 112 of the Bharatiya Sakshya Adhiniyam), namely, that when two persons have been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationship has ceased, is on the party who so asserts. It may therefore be legitimately presumed that the plaintiff continued to possess the land as a tenant till the institution of the suit.

(See also Prem Prakesh v Santhosh Kumar and Sons (HUF) and another, AIR 2017 SC 4060: 2018 (12) SCC 637 (R. K. Agrawal; Ashok Bhushan, JJ))

32. Burden of proof as to ownership -S 113

Section 113 of the Bharatiya Sakshya Adhiniyam (Section 110 of the Evidence Act) reads as under:

When the question is whether any person is 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 who affirms that he is not the owner.

It is often said that possession is 10 points in law, title follows possession and Possession is good against whole world except the true owner/person with a better title. These principles are reflected in the maxim “Potior Est Conditio Poddidentis”. Parry v Clissold , (1907) AC 73, is an English case which affirmed the principle that Possession is good against whole world except the true owner. The maxim of law ‘Adversus extraneous vitiosa possessio prodesse solet’ means Prior possession is a good title of ownership against all who cannot show a better title.

33. Basic Elements of Section 113

To apply Section 113 of the Bharatiya Sakshya Adhiniyam (Section 110 of the Evidence Act), the party is to be shown to be in possession and the facts disclose no title in either of the disputants. The Section applies in the case of both movable and immovable property. This provision can be invoked against the government also subject to any contrary statutory provision. ( See Suraji Fulahji v Secretary of State, (AIR 1937 Bom 193)

34. Possession is Good Title Against All the World Except the Rightful Owner

In Siddiq M (D) Thr LRs v Mahant Suresh Das and Others 2020 (1) SCC 1 (Ranjan Gogoi, C. J.; S. A. Bobde; Dr. D. Y. Chandrachud; Ashok Bhushan; S. Abdul Nazeer, JJ – Ayodhya Case), the Supreme Court observed:

S.110 deals (Section 113 of the Bharatiya Sakshya Adhiniyam) with the burden of proof. Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for S.110 (Section 113 of the Bharatiya Sakshya Adhiniyam) to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. S.110 (Section 113 of the Bharatiya Sakshya Adhiniyam) is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner.

…S.110 (Section 113 of the Bharatiya Sakshya Adhiniyam) is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well – settled that the presumption cannot be arise when the facts are known.”

The 5 judges bench further held:

In assessing this limb of the submission on the applicability of S.110 (Section 113 of the Bharatiya Sakshya Adhiniyam) the crucial test is whether the disputed site represents “anything of which” the Muslim parties are “shown to be in possession”. Unless the ‘shown to be in possession’ requirement is fulfilled, the presumption would not arise and there would be no question of placing the burden of establishing that the plaintiffs in Suit are not the owners on the contesting Hindu parties.

The 5 judges Constitution bench in ‘Siddiq’ relied on the judgements in Nair Service Society Ltd, M S Jagadambal, Chief Conservator of Forests, Govt of A P, and State of A P v Star Bone Mill & Fertiliser Company.

In Chief Conservator of Forests, Govt of A P v Collector ((2003) 3 SSC 472), Justice Syed Shah Mohammed Quadri, speaking for a two judge Bench of the Supreme Court held:

…presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.”

35. When the Facts Disclose No Title With Either Party Possession Decides – ‘Title Follows Possession’ Applies

When the facts disclose no title with either party possession decides, the principle is ‘Title Follows Possession’

In Nair Service Society Ltd. v K C Alexander (AIR 1968 SC 1165), Justice M Hidayatullah (as the learned Chief Justice then was) speaking for a three judge Bench of the Supreme Court held:

“…That possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides.”

The Court in ‘Nair Service Society’ Ltd inter alia quoted from Parry v Clissold , (1907) AC 73, as under:

“Perry v. Clissold reaffirmed the principle by stating quite clearly:-

“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title,”

36. ‘jus tertii’ is Not a Defence

The court in Nair Service Society Ltd. v K C Alexander (AIR 1968 SC 1165) inter alia quoted from Salmond on Jurisprudence as under:

The proposition of law on the subject has been summed up by Salmond on Torts (13th Edn.) at page 172 in the following words:

“The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a, better title in themselves, and is therefore sufficient to support an action of trespass against such persons. Just as a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal tills is enough. In other words, no defendant in an action of trespass can plead the jus tertii the right of possession outstanding in some third person as against the fact of possession in the plaintiff”.

The maxim of law is Adversus extraneous vitiosa possessio prodesse solet Prior possession is a good title of ownership against all who cannot show a better title and if the plaintiff is in possession the jus tertii does not afford a defence.

In M S Jagadambal v Southern Indian Education Trust (1988 Supp SCC 144), Justice K Jagannatha Shetty, speaking for a two judge Bench of the Supreme Court held that possession continues with the title holder unless and until the defendant acquires title by adverse possession:

“The possession continues with the title holder unless and until the defendant acquires title by adverse possession. There would be no continuance of adverse possession when the land remains submerged and when it is put out of use and enjoyment. In such a case the party having title could claim constructive possession provided the title had not been extinguished by adverse possession before the last submergence. There is no difference in principle between seasonal submersion and one which continues for a length of time.”

37. When the Property is a Vacant Site the Principle ‘Possession Follows Title’ Applies

When the Property is a vacant site the principle ‘Possession Follows Title’ applies instead of ‘Title Follows Possession’

Anathula Sudhakar v P Buchi Reddy (Dead) by LRs and Others 2008 (4) SCC 594: AIR 2008 SC 2033 (R. V. Raveendran; P. Sathasivam, JJ), the Supreme Court observed:

But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.

38. Object of Section 113 is Public Policy and To Prevent Persons From Taking Law on to Their Hands

In State of A P v Star Bone Mill & Fertiliser Company (2013 (9) SCC 319), the Supreme Court held that the object of S.110 (Section 113 of the Bharatiya Sakshya Adhiniyam) is based on public policy. The object is to prevent persons from committing a breach of peace by taking the law into their own hands however good their title may be over the land in question. This object underlies provisions such as S.6 of the Specific Relief Act 1963, S.145 of the Code of Criminal Procedure 1973 (section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and S.154 and S.158 of the Indian Penal Code 1860 (section 198 of the Bharatiya Nyaya Sanhita, 2023).

Justice B S Chauhan speaking for a two judge Bench of the Supreme Court explained in the above decision that:

“…The said presumption is read under S.114 of the Evidence Act (Section 119 of the Bharatiya Sakshya Adhiniyam), and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim “possession follows title” is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass / encroachment, etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and / or continuity thereof, both forward and backward, can also be raised under S.110 of the Evidence Act (Section 113 of the Bharatiya Sakshya Adhiniyam).”

39. Law Does Not Favour Taking Forceful Possession Even By the True Owner

No one is entitled to take law on to his own hands. Generally, an aggrieved person has to resort to due process of to redress his grievance.

In Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy and Others (1924 PC 144) Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.

In Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh and Others (1968 (2) SCR 203) the Supreme Court held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee.

A Full Bench of Allahabad High Court in Yar Mohammad v. Lakshmi Das (AIR 1959 All. 1), observed:

“Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause.”

In M. C. Chockalingam and Ors. v. V. Manickavasagam and Others (1974 (1) SCC 48) the Supreme Court held that the law forbids forcible dispossession even with the best of title. In Nagar Palika, Jind v. Jagat Singh, Advocate (1995 (3) SCC 426) this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.

In Fakirbhai Bhagwandas and Another v. Maganlal Haribhai and Another (AIR 1951 Bombay 380) a Division Bench spoke through Bhagwati, J. (as his Lordship then was), and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof.

In Krishna Ram Mahale (dead) by his Lrs. v. Mrs. Shobha Venkat Rao (1989 (4) SCC 131) it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.

40. Meaning of Settled Possession and Protection of Settled Possession

In Puran Singh and Ors. v. The State of Punjab (1975 (4) SCC 518), the Supreme Court held that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ‘settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase settled possession does not carry any special charm or magic in it nor is it a ritualistic formula which can be confined in a straight-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’:

  1. i) that the trespasser must be in actual physical possession of the property over a sufficiently z long period;
  2. ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

  1. iv) that one of the usual tests to determine the quality of settled possession, in the case of cultivable land. would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

In Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702 (S. M. Sikri; J. M. Shelat; K. S. Hegde, JJ.) it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is, entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force.

In the cases of Munshi Ram and Others (supra) and Puran Singh and Others (supra), the Court has approved the statement of law made in Horam v. Rex (AIR 1949 Allahabad 564) wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable force, the later, may be dispossessed by the true owner only by having recourse to the due process of law for reacquiring possession over his property.

In Rame Gowda v M Varadappa Naidu (2004)1 SCC 769 AIR 2004 SC 4609 (R. C. Lahoti; B. N. Srikrishna; G. P. Mathur, JJ), The plaintiff failed in proving his title. Nevertheless, he was found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Supreme Court held that the Trial Court and the High Court have rightly decided the suit. It was also observed that it is still open to the defendant – appellant to file a suit based on his title against the plaintiff – respondent and evict the latter on the former establishing his better right to possess the property.

The three judges bench after a survey of precedents including ‘Puran Singh’ and ‘Munshi Ram’, observed as under:

“It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

 It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner.”

The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions.”

(See also, Ram Rattan and Ors. v. State of Uttar Pradesh (1977 (1) SCC 188).

41. Proof of good faith in transactions where one party is in relation of active confidence – S 114

Section 114 of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 111 of the Evidence Act) reads as under:

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

Illustrations

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

(b) 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.

In terms of Section 104 of the Bharatiya Sakshya Adhiniyam (Sections 101 of the Evidence Act), the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. Section 114 of the Bharatiya Sakshya Adhiniyam (Section 111 of the Evidence Act) casts the burden as to good faith of the transaction on the party who is in a position of active confidence. For the application of Section 114 of the Bharatiya Sakshya Adhiniyam (Section 111 of the Evidence Act), the fact that the defendant was in a dominant position must be proved at the first instance, then the burden of proving the good faith of the transaction would be on such party who is in a position of active confidence.

In Anil Rishi v Gurbaksh Singh 2006 (5) SCC 558: AIR 2006 SC 1971, (S. B. Sinha; P. K. Balasubramanyan, JJ.), the Supreme Court reiterated:

“The averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.”

In Krishna Mohan Kul v. Pratima Maity (2004 (9) SCC 468)( Doraiswamy Raju; Arijit Pasayat, JJ), laid down the law as under:

When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in S.111 of the Indian Evidence Act,. The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and others have been held to fall without the rule….. Where an active confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.

Section 16 of the Indian Contract Act should be read along with this provision as it is a corollary of this provision.

In Daya Sankar v Bachi and Others, AIR 1982 All. 376, Allahabad High Court, analysed the provision in detail referring to English law and Some of the Precedents on the subject:

Burden of proving good faith is on the dominant party

The Court observed:

Obviously as between persons dealing on the footing of complete equality, there is no presumption against good faith. The law presumes, prima facie, in favour of the deeds being duly executed. So ordinarily the person who challenges the validity of a transaction on the ground of fraud, undue influence etc., and charges his opponent with bad faith has to discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who relies on such deed if a relationship of “active confidence” or fiduciary relationship subsists between the contracting parties, such as guardian and ward, agent and principal, doctor and patient spiritual adviser and disciple, trustee and cestui que trust etc.. The underlying, principle of engrafting such exception to the general rule is that on account of the existence of such relationship as mentioned above, one of the contracting parties is in a position to exert undue influence or ‘dominate’ over the other and extort benefit from him. In such case justice demands that the burden of proving good faith of the transaction must be thrown upon the dominant party, i.e. the party who is in a position of “active confidence”. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus S.111 of the Indian Evidence Act (Section 114 of the Bharatiya Sakshya Adhiniyam) has to be read along with the provisions of S.16 of the Indian Contract Act.

The Phrase ‘Fiduciary Relationship’ is Explained

The Court further observed:

….fiduciary relationship is not exhausted by the few well – known patterns of relationship to which we have adverted above. Any relationship in which one party enjoys the “active confidence” of another party who is to lean on him and is inclined to repose implicit confidence in him is enough to approximate to the kind of relationship which may attract the provisions of S.111 of the Evidence Act (Section 114 of the Bharatiya Sakshya Adhiniyam)with regard to the rule of burden of proof. Consequently, even if restricted and technical construction were put on the term ‘fiduciary relationship, the principle enshrined in S.111 (Section 114 of the Bharatiya Sakshya Adhiniyam)should be extended to cases where there is proof of a Person dependent, by virtue of his physical or mental infirmity or disability on another party and the circumstances have been proved to show that the other party, taking advantage of such position, has secured a deed or instrument for his own benefit.

Scope of Section 16 of the Contract Act

The Court further observed:

 ….the provision of law which is directly applicable to a case like the one before us and which is very salutary for safeguarding the rights and interest of a party whose will can be dominated over by another person, is S.16 of the Contract Act which provides:

“16 (1). A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another –

(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.”

Obviously the provisions of this section are wide enough in their scope to cover all such cases where “one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other”. In such circumstances, this section categorically enacts that “the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other”.

The Indian law on the point is founded substantially on the rules of English law. In Allcard v. Skinner, (1887) 36 Ch D 145, Lindley L. J, explained the rule in these words;

“The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? or is it that it is right and expedient to save them from being victimised by other people? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction.

 ……In cases where undue influence is presumed the court sets aside the gift unless it is proved that it was in fact the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the court in holding that the gift was the result of the free exercise of the donor’s will.

 All the salient ingredients of the doctrine of undue influence flowing from the existence of a particular relationship between the parties have been seized in S.16 of the Indian Contract Act which is very widely worded so as to include a myriad of circumstances which may give rise to the possibility of a person being able to dominate over the will of another. They include handicap suffered by a person on account of mental capacity affected by reason of age, illness etc. or a likelihood of a person holding a real or apparent authority over the other or standing in a fiduciary relation to the other. The word ‘fiduciary” as contained in the Webster’s New International Dictionary connotes “a person in trust, a person or thing holding something in trust”. The other meaning given in the dictionary is “of or pertaining to a trust, pertaining to or of the nature of trusteeship.” Thus, whenever it is brought to the notice of the courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the courts always insist on placing the burden of proof on the person who was in such advantageous position to establish that he did not abuse his position. The principle was originally confined to cases of pardahnashin ladies who manifestly suffered from such inhibition and limitation. Gradually the area covered by this rule was enlarged and it was extended to females who, though not strictly observing, pardah, yet were prone to labour under such infirmities and handicap by virtue of their lesser experience of the world and their inability to cope with the complexities of life.

Rules Regarding Transactions of a Pardahnashin Lady is Equally Applicable to an Illiterate and Ignorant Person

The Court further observed:

In Parasnath Rai v. Tileshra Kuar, 1965 All LJ 1080. Gangeshwar Prasad, J. followed the decision of the Calcutta High Court in Chinta Dasya v. Bhalku Das, AIR 1930 Cal. 591, wherein Miller, J. held, that rules regarding transactions by a pardahnashin lady were equally applicable to an illiterate and ignorant woman, though she may not be Pardahnashin. We are unable to comprehend as to why the broad principle which has been accepted and widely applied in the numerous decisions to which we have adverted should not also embrace within its sweep the cases of males who by reasons of their apparent physical or mental incapacity or infirmity or being placed in circumstances where they and greatly amenable to the overpowering influence of another person are induced to enter into conveyances and transaction relating to their property. The basic principle is the same and where it is proved to the satisfaction of the court either that the bargain was on the face of it unconscionable or the executant was the victim of physical or mental handicap or that he was subdued by the complexity of circumstances in which another person had an upper hand, the burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith.

In Sher Singh v. Pirthi Singh, AIR 1975 All. 259, where the learned single Judge extended the principle to the case of an old and illiterate male who on account of long illness had lost his capacity to understand things and was persuaded to execute a gift deed in favour of the defendants at a time when the old man was away even from his daughter whose advice alone he could have sought for his guidance.

 In Debi Prasad v. Chhotey Lal, AIR 1966 All. 438. It was held in that case that the deed of gift was an unconscionable transaction as the appellant was in a dominating position and the plaintiffs were old and infirm persons having none to look after them.

42. Burden and Standard of Proof In Criminal Cases and the Modern Doctrine of Reverse Burden

It is a fundamental principle in criminal law that in order to convict an accused the prosecution must discharge the heavy burden cast upon it to prove the guilt of the accused beyond reasonable doubt. The prosecution case has to stand on its on legs and not on the weakness of the defence.

In, Dr S.L Goswami v State of M P, AIR 1972 SC 716 (P. Jaganmohan Reddy; D. G. Palekar, JJ), the Supreme Court laid down the basic rule as to the burden of proof in criminal cases as under:

In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt.

In Gurucharan Singh and Another v State of Punjab AIR 1956 SC 460, The Supreme Court laid down that:

Burden of proving the case against the accused is on the prosecution irrespective of whether or not the accused have made out a plausible defence.

“It is one of the fundamental tenets of criminal jurisprudence that the burden of proving the prosecution case squarely lies on the prosecution. This general burden never shifts. Defence is not bound to open its mouth so long as prosecution does not discharge its general burden of proving its case beyond reasonable doubt. Defence version may even be false, because a falsely instituted prosecution may compel the accused to adopt a false defence. So, prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubts.” (Md. Alimuddin and Others v. State of Assam 1992 CriLJ 3287)

(For commentaries on ‘Proved’, ‘Disproved’ ‘Not Proved’, Difference in the required Standards of Proof between Civil Cases and Criminal Cases and the ‘Benefit of reasonable doubt in criminal cases’ see Module No. 2)

Now we will deal with Reverse Burden and Statutory Presumptions in Special Criminal Statutes

43. Reverse Burden and Statutory Presumptions in Special Criminal Statutes

‘Presumption of Innocence’ is considered as a fundamental principle of our criminal justice system. It means an accused who is put on trial before a court shall not be presumed to be guilty of an offence until the prosecution proves the guilt beyond reasonable doubt. This is implicit in the concept of fair trial. In short an accused is innocent until proven guilty. This is referred conventionally as the ‘golden thread principle of criminal law’. (See English case Woolmington v. Director of Public Prosecutions 1935 UKHL1).

In view of the low conviction rate, for stringent enforcement of the criminal justice system in certain heinous crimes the legislature has come up with the devise of imposing the burden to prove certain facts upon the accused, which is generally known as reverse burden.

When the burden of proof is on the accused to establish a particular issue, it is often referred to as a ‘reverse burden’, because it reverses the normal situation in which the prosecution must prove the facts constituting the offence beyond reasonable doubt.

In the case of ‘ Babu v. State of Kerala, (2010) 9 SCC 189 : (2010 AIR SCW 5105)’ the Supreme Court held in para 27 and para 28 as follows:

(IV) Burden of Proof and Doctrine of Innocence.

‘ Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of the criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely an the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instrument Act, 1881; The Prevention of Corruption Act, 1988, and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.

However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as of those is statutes as referred to hereinabove, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Art.14 and Art.21 of the Constitution.’

Now it is also a settled proposition that mens rea may not be absolutely essential in all the offences and the Statute may make exceptions, having regard to the peculiar nature of the offence by diluting the principle of no mens rea no crime, explicitly or by necessary implication. Partial burden can also be fastened on the accused in cases where there are special facts falling within the knowledge of the accused. That by itself will not make the provisions unconstitutional or violative of any International Conventions.

44. Some of the Provisions Which Provide for Reverse Burden of Proof

Following are some of the provisions which provide for Reverse Burden of Proof.

NDPS Act

Section 35 of the Narcotic Drugs and Psychotropic Substances Act, reads as follows:

Presumption of culpable mental state:

(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation- In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exit beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

POCSO ACT

Section 29 and 30 of the Protection of Children from Sexual Offences Act, 2012 read as under:

Presumption as to certain offences

Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

Section 30: Presumption of culpable mental state

(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation. – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

Prevention of Money Laundering Act

Section 24 of the Prevention of Money Laundering Act, 2002 reads as under:

Burden of proof:

In any proceeding relating to proceeds of crime under this Act,

(a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and

(b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering.

Negotiable Instruments Act

Section 139 of the Negotiable Instruments Act reads as follows:

Presumption in favour of holder.

It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.

Provisions of Reverse Burden in the Bharatiya Sakshya Adhiniyam/the Evidence Act

Section 117 of the Bharatiya Sakshya Adhiniyam (Section 113(A) of the Evidence Act), raises a presumption about abetment of suicide.

Section 118 of the Bharatiya Sakshya Adhiniyam (Section 113B of the Evidence Act) raises Presumption as to dowry death.

Section 120 of the Bharatiya Sakshya Adhiniyam (S.114A of the Evidence Act) raises presumption of absence of consent in a rape case.

(For commentary see Module 22 on Presumptions)

45. Case Law on Reverse Burden

The following are some of the judgments of the Supreme Court which dealt with, analysed and interpreted presumptions and provisions of reverse burden under various Statutes:

(1) K. Veeraswami v. Union of India, (1991) 3 SCC 655 (Regarding provision in the Prevention of corruption Act)

(2) State of Maharashtra v. Wasudeo Ramachandra Kaidalwar, (1981) 3 SCC 199 : AIR 1981 SC 1186

(3) Noor Aga v. State of Punjab, (2008) 16 SCC 417 (Regarding provisions S.35 and S.54 of the Narcotic Drugs and Psychotropic Substances Act, 1985)

(4) Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513: AIR 2009 SC 1518 (NI Act Presumption)

(5) Abdul Rashid Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513: AIR 2000 SC 821,

(6) Chandran and Others v. State of Kerala and Others, AIR 2011 SC 1594 (2011) 5 SCC 161,

(7) Naresh Kumar v. State of Himachal Pradesh, AIR 2017 SC 3859: (2017) 15 SCC 684 and

(8) Gangadhar @ Gangaram v. State of Madhya Pradesh, 2020 KHC 6473 : AIR 2020 SC 3656 : (2020) 9 SCC 202.

46. Reverse Burden in Prevention of Corruption Act, 1947– Case Law

Under S.5(1)(e) of the Prevention of Corruption Act, 1947 reverse liability was imposed on the accused to establish his innocence. The Supreme Court in K. Veeraswami v. Union of India, (1991) 3 SCC 655, while evaluating the provisions of the Prevention of Corruption Act, 1947, held;

“to substantiate the charge, the prosecution must prove the following facts before it can bring a case under S.5(1)(e), namely (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove, quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under S.5(1)(e) is complete, unless the accused is able to account for such resources of property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under S.5(1)(e) cannot be higher than the test laid by the Court in Jhingan case, (V. D. Jhingan v. State of U.P, AIR 1966 SC 1762) i.e., to establish his case by a preponderance of probability.

The Supreme Court also held that:

“….this procedure may be contrary to the well-known principle of criminal jurisprudence laid down in Woolmington v. Director of Public Prosecutions, 1935 AC 462 that the burden of proof is always on the prosecution and never shifts to the accused person. But Parliament is competent to place the burden on certain aspects on the accused as well and particularly in matter “specially within his knowledge”. (S.106 of the Evidence Act). Adroitly, as observed in Swamy case, 1960 (1) SCR 461 : 1960 CriLJ 131 (at p.469) and reiterated in Wasudeo case, 1981 (3) SCC 199 : 1981 (3) SCR 675 (at p.683 : SCC p. 205), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income. It is for him to explain. Such a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Art.21 of the Constitution as contended for the appellant. It may be noted that the principle reaffirmed in Woolmington case (1935 AC 462) is not a universal rule to be followed in every case. The principle is applied only in the absence of statutory provision to the contrary (See the observation of Lord Templeman and Lord Griffiths in Rig. v. Hunt, 1986 (3) WLR 1115, 1118, 1129.”)

47. Reverse Burden in NDPS ACT– Case Law

In Noor Aga v. State of Punjab and Ors (2008) 16 SCC 417 it was contended that the provisions of S.35 and S.54 of the NDPS Act being draconian in nature imposing reverse burden on an accused and, thus, being contrary to Art.14(2) of the International Covenant on Civil and Political Rights ensuring that an accused shall be deemed to be innocent until proved guilty, must be held to be ultra vires of Art.14 and Art.21 of the Constitution of India. The Court held that, Presumption of innocence was a human right as envisaged under Art.14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the Fundamental Right and liberty adumbrated in Art.21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions, which, of course, must be read in the light of the Constitutional guarantees as adumbrated in Art.20 and Art.21 of the Constitution of India. The Act was enacted having regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances was placed on the accused, the same, by itself would not render the impugned provisions unconstitutional

The Court held that, a legal provision does not become unconstitutional only because it provides for a reverse burden. Referring to Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3897) and M. S. Narayan Menon v. State of Kerala (AIR 2006 SC 3366.), it was held that the question as regards burden of proof is procedural in nature.

The Supreme Court in Noor Aga v. State of Punjab and Ors ultimately held that, provisions imposing reverse burden, however, must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the statute in question. The provisions of S.35 of the NDPS Act as also S.54 thereof cannot be said to be ex facie unconstitutional. (See Justin @ Renjith and Another v. Union of India ILR 2020 (4) Ker. 679.)

48. Reverse Burden In Protection of Children from Sexual Offences Act (POCSO Act ) – Case Law

In, Attorney General for India and Others v. Satish and Another AIR 2022 SC 13: 2022 (5) SCC 545, the Supreme Court observed:

“The surrounding circumstances like the accused having taken the victim to his house, the accused having lied to the mother of the victim that the victim was not in his house, the mother having found her daughter in the room on the first floor of the house of the accused and the victim having narrated the incident to her mother, were proved by the prosecution, rather the said facts had remained unchallenged at the instance of the accused. Such basic facts having been proved by the prosecution, the Court was entitled to raise the statutory presumption about the culpable mental state of the accused as permitted to be raised under S.30 of the said Act.”

In, David v. State of Kerala 2020 (5) KLT 92: 2020 CriLJ 3995, the Kerala High Court after surveying through various decisions relating to reverse burden entered the following conclusion in the context of section 29 of the the Protection of Children from Sexual Offences Act, 2012:

Coming to the manner in which the accused is required to rebut the presumption, I must notice at once that the Apex Court has clarified in Trilok Chand Jain v. State of Delhi (AIR 1977 SC 666 : 1977 CriLJ 254), in the context of S.4 of the Prevention of Corruption Act, 1947, that the quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case and that such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. The relevant portion of the judgment reads thus:

“The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise.”

Similarly, it was also held by the Apex Court in the said case that if the case of the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered lifeless from its very inception, if out of judicial courtesy, it cannot be rejected out of hand as still born. The relevant passage from the judgment in the said case reads thus:

“Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under S.4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under S.5(1)(2) of the Prevention of Corruption Act and S.161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born.”

Thus, an accused in order to prove his case may or may not produce evidence and need only show on the totality of all the materials available on record that the fact presumed cannot be said to have been proved on the touchstone of preponderance of probability, for which, he may even rely on patent absurdities or inherent infirmities or improbabilities in the prosecution case leading to an irresistible inference of falsehood in the prosecution case.

To sum up, the presumption under S.29 of the POCSO Act does not, in any way, affect the obligation of the prosecution to produce admissible evidence which, if accepted, would constitute the offence and when the prosecution produces admissible evidence to prove the foundational facts constituting the offence, the accused must, at the pain of losing, prove that he did not commit the offence on the principle of preponderance of probability. If he fails, the presumption applies and the evidential burden being undischarged, the prosecution will be considered to have discharged its legal burden and if he succeeds, the prosecution will be considered to have failed in discharging its legal burden in establishing the guilt of the accused. In other words, the essence of S.29 of the POCSO Act is only that a higher degree of proof of facts constituting the guilt of the accused, as is usually insisted in criminal trials, is not insisted from the prosecution in a case arising under the POCSO Act. The Parliament has certainly the power to lay down a different standard of proof for certain offences or certain pattern of crimes subject to the establishment of some foundational facts and the same would not, therefore, affect any of the constitutional and established rights of the accused in such cases [See Harendra Sarkar v. State of Assam (AIR 2008 SC 2467: 2008 (3) SCC (Cri) 740)].

49. PMLA Section 24 – Upheld by the Supreme Court-– Case Law

In, Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929. The Supreme Court upheld the validity of Section 24 of the Prevention of Money Laundering Act, 2002. Court emphasised that the foundational facts should be proved applying section 24. The Court observed:

“Further, keeping in mind the legislative scheme and the purposes and objects sought to be achieved by the 2002 Act coupled with the fact that the person charged or any other person involved in money-laundering, would get opportunity to disclose information and evidence to rebut the legal presumption in respect of facts within his personal knowledge during the proceeding before the Authority or the Special Court, by no stretch of imagination, provision in the form of Section 24 of the 2002 Act, can be regarded as unconstitutional. It has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act. In any case, it cannot be perceived as manifestly arbitrary as is sought to be urged before us.

Be that as it may, we may now proceed to decipher the purport of Section 24 of the 2002 Act. In the first place, it must be noticed that the legal presumption in either case is about the involvement of proceeds of crime in money-laundering. This fact becomes relevant, only if, the prosecution or the authorities have succeeded in establishing at least three basic or foundational facts. First, that the criminal activity relating to a scheduled offence has been committed. Second, that the property in question has been derived or obtained, directly or indirectly, by any person as a result of that criminal activity. Third, the person concerned is, directly or indirectly, involved in any process or activity connected with the said property being proceeds of crime. On establishing the fact that there existed proceeds of crime and the person concerned was involved in any process or activity connected therewith, itself, constitutes offence of money-laundering. The nature of process or activity has now been elaborated in the form of Explanation inserted vide Finance (No.2) Act, 2019. On establishing these foundational facts in terms of Section 24 of the 2002 Act, a legal presumption would arise that such proceeds of crime are involved in money-laundering. The fact that the person concerned had no causal connection with such proceeds of crime and he is able to disprove the fact about his involvement in any process or activity connected therewith, by producing evidence in that regard, the legal presumption would stand rebutted.”

Now the Review Petition in Vijay Madanlal Choudhary v. Union of India is pending before the Supreme Court

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

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Exercise Questions

  1. Explain the term Burden of Proof, Discuss the provisions in the Bharatiya Sakshya Adhiniyam / the Evidence Act, relating to Burden of Proof.
  2. Discuss Burden of proof and Standard of Proof in civil cases and Criminal Cases
  3. What is reverse burden? Cite a few examples
  4. Burden of proof in criminal cases when the accused sets up plea of right of private defence or insanity as a defense.
  5. Discuss Burden of proving fact especially within knowledge of a person. Does that absolve the Prosecution from proving the case beyond reasonable doubt?
  6. Explain the phrases “Possession follows title” and “Title follows possession”.
  7. ‘Possession is 9 points in law’ Explain
  8. Can an injunction be granted against true owner in favour of a person in possession of the property?
  9. Explain the law relating to the Burden as to prove good faith of a transaction on the party who is in a position of active confidence.