CHAPTER VII: OF THE BURDEN OF PROOF

This is a new, critical chapter. It stops talking about what evidence is allowed and starts talking about who is responsible for proving it.

Section 104: Burden of proof.

• Legal Text: 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.
• Simple English: This is the most fundamental rule of a trial, often stated as “He who asserts, must prove.”
• If you want the court to rule in your favour, you must prove the facts that entitle you to that ruling. The responsibility to prove those facts is your “burden of proof.”
• Example (Illustration 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.
  • Breakdown: In a criminal case, the prosecution (A) asserts that B is guilty. Therefore, the prosecution has the burden of proof. B is presumed innocent and has to prove nothing (unless he raises a special defense).
• Example (Illustration 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…A must prove the existence of those facts.
  • Breakdown: In a civil case, the Plaintiff (A) asserts that B’s land is rightfully his. Therefore, the Plaintiff has the burden of proving the facts that make the land his (e.g., “I have a valid sale deed,” “It was in my father’s will”).

Section 105: On whom burden of proof lies.

• Legal Text: 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.
• Simple English: This is the practical test to figure out who has the main burden of proof. Ask this question: “If the trial stopped right now, before anyone said anything, who would lose?”
• The person who would lose in that scenario is the one who has the burden of proof.
• Example (Illustration 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.
  • Breakdown: B is already in possession. Possession is a strong right. If A (the plaintiff) says nothing, B wins. Therefore, the burden is on A to prove B’s possession is wrong.
• Example (Illustration 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…Therefore, the burden of proof is on B.
  • Breakdown: This shows how the burden can shift.
    1. A’s claim: “B owes me money on this bond.”
    2. B’s reply: “I admit I signed the bond, but A forced me (fraud).”
    3. Test: If no one gives any evidence, A wins, because the bond is admitted and the fraud is not proven.
    4. Conclusion: The burden of proof is on B to prove the fraud he asserted.

Section 106: Burden of proof as to particular fact.

• Legal Text: The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence…
• Simple English: The “burden of proof” is not one big thing. It’s a bundle of smaller burdens. The burden to prove any specific fact (an alibi, a payment, a threat) lies on whichever side wants the court to believe that fact.
• Example (Illustration): A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
  • Breakdown:
    1. Prosecution (A) wants the court to believe the fact of “B’s admission to C.” So, A must prove it.
    2. Defense (B) wants the court to believe the fact of “B’s alibi.” So, B must prove it.

Section 107: Burden of proving fact to be proved to make evidence admissible.

• Legal Text: 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.
• Simple English: This is the burden for “foundational evidence.” If your piece of evidence is only admissible if some other fact is true (a “condition precedent”), you have the burden of proving that other fact first.
• Example (Illustration a): A wishes to prove a dying declaration by B. A must prove B’s death.
  • Breakdown: A dying declaration (under Sec 26) is only admissible if the person who made it is dead. Therefore, A has the burden of proving B is dead before the court will even listen to the declaration.
• Example (Illustration b): A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
  • Breakdown: You can only use a photocopy (secondary evidence) if the original is lost, destroyed, or in the other side’s hands (under Sec 60). Therefore, A has the burden of proving the original is lost before the court will look at the photocopy.

Section 108: Burden of proving that case of accused comes within exceptions.

• Legal Text: 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…is upon him, and the Court shall presume the absence of such circumstances.
• Simple English: This is a critical rule in criminal law.
  1. The Prosecution has the burden of proving all the ingredients of the crime (e.g., “A intentionally caused B’s death”).
  2. The Accused has the burden of proving any General Exception (like self-defense, insanity, mistake of fact, or acting under threat).
• Key Part: The court shall presume the absence of these defenses. This means the judge must assume the accused was sane and not acting in self-defense, until the accused provides enough evidence to prove it.
• Example (Illustration 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.
• Example (Illustration 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.
• Example (Illustration c): This provides a specific example related to grievous hurt, where the burden is on the accused (A) to prove his case falls under a specific exception.

Section 109: Burden of proving fact especially within knowledge.

• Legal Text: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
• Simple English: This is a common-sense exception to the main rule. If a fact is something that only you could possibly know, or is extremely easy for you to prove and extremely hard for the other side to disprove, the burden shifts to you to prove it.
• Example (Illustration 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.
  • Breakdown: A is seen taking a bag from a temple’s donation box. The obvious intention is theft. If A claims he had a different intention (e.g., “I was taking it to the priest for safekeeping”), that special intention is a fact within his knowledge, and the burden is on him to prove it.
• Example (Illustration b): A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
  • Breakdown: This is the classic example. The prosecution proves A was on the train. The fact of whether A has a ticket is “especially within his knowledge.” It is very easy for him to show the ticket and very hard for the prosecution to prove he doesn’t have one (they can’t search every pocket). Therefore, the burden is on A to produce the ticket.

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

• Legal Text: 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.
• Simple English: This is the Presumption of Life. If it is shown that a person was alive at any point in the last 30 years, the law presumes they are still alive today.
• The burden of proof is on the person who claims they are dead.
• Example: A man, Ram, was last seen by his family in 2010. In 2025 (15 years later), his son, B, wants to inherit Ram’s property, claiming Ram is dead. The court presumes Ram is alive. The burden is on B to prove that Ram is, in fact, dead. (This is different from the rule in the next section).

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

• Legal Text: 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.
• Simple English (The 7-Year Rule): This rule establishes the Presumption of Death. If you can prove two things:
  1. A person has been missing for 7 years or more.
  2. The people who normally would have heard from him (family, close friends) have not heard anything.
• …then the law shifts the burden. The court presumes the person is dead. The other party (who claims the person is still alive) must now prove that fact.
• Note: This section only presumes the fact of death; it doesn’t presume when the death occurred (that must be proved separately).
• Example: A wife seeks to claim her husband’s insurance money. She proves that her husband has been missing since 2018 (seven years ago), and none of his family or bank contacts have heard from him. The court presumes he is dead. The insurance company must now prove he is, in fact, alive to avoid paying the claim.

Section 112: Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent.

• Legal Text: 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.
• Simple English: If two people or parties have clearly been acting in a specific relationship (like two partners sharing profits, or a tenant paying rent to a landlord), the law assumes that relationship still exists.
• The burden of proof shifts to the person who claims the relationship either never existed or has ended.
• Example: A landlord (L) sues a tenant (T) for rent. T argues, “I’m not a tenant anymore; the lease ended last year.” Since L can prove T was paying him rent until recently (acting as tenant), the court assumes the relationship continues. The burden is on T to prove that the lease was terminated or expired.

Section 113: Burden of proof as to ownership.

• Legal Text: 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.
• Simple English: Possession is 9/10ths of the law. If a person is currently in possession of an asset (land, a car, jewelry), the court legally presumes they are the owner.
• The burden shifts to the person who tries to claim the owner in possession is not the rightful owner.
• Example: Ravi has been driving a specific truck for two years, and the registration is in his name (he is in possession). Maya sues Ravi, claiming the truck is hers. The court presumes Ravi is the owner. The burden of proof is on Maya to produce documents or evidence showing her superior title.

Section 114: Proof of good faith in transactions where one party is in relation of active confidence.

• Legal Text: 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.
• Simple English (Fiduciary Duty): This applies to relationships based on high trust or power imbalance (like lawyer/client, doctor/patient, parent/child). If the person in the weaker position challenges a deal they made with the person in the position of active confidence, the court presumes the deal was unfair.
• The burden shifts to the person in the position of confidence to prove that the deal was conducted with absolute good faith (fairness, transparency, no undue influence).
• Example (Illustration a): A client sells a piece of land to his lawyer. The client later sues, claiming the sale price was too low. The court presumes the lawyer acted improperly. The burden is entirely on the lawyer to prove that the sale was fair, the client received independent advice, and the price was market value.
• Example (Illustration b): A young adult son who just turned 18 sells his property to his father. If the son later sues, the court presumes the father used his influence. The burden is on the father to prove the sale was fair and in the son’s best interest.

Section 115: Presumption as to certain offences.

• Section 115(1): Where a person is accused of having committed any offence specified in sub-section (2), in— (a) any area declared to be a disturbed area…; or (b) any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces…it shall be presumed, unless the contrary is shown, that such person had committed such offence.
• Simple English: This is a very strong “Shall Presume” rule for crimes committed in dangerous or volatile areas (like areas designated as ‘disturbed’ or experiencing severe, prolonged civil unrest).
• The Chain of Proof: If the prosecution proves:
  1. The area was disturbed or violent.
  2. The accused was at a specific spot (like a house or building).
  3. Firearms or explosives were used from that specific spot against security forces.
• …then the court MUST presume that the person committed the offence (listed in sub-section 2), unless the person can prove their innocence (e.g., they were a hostage, or locked in a room).
• Example: In an area declared disturbed, a group opens fire from a school building onto security forces. An individual is later apprehended inside the building. The court shall presume that individual participated in the attack, and the burden shifts to the individual to prove they were not involved.
• Section 115(2): The offences referred to in sub-section (1) are the following, namely:— (a) an offence under section 147, section 148, section 149 or section 150 of the Bharatiya Nyaya Sanhita, 2023; (b) criminal conspiracy or attempt to commit, or abetment of, an offence under section 149 or section 150 of the Bharatiya Nyaya Sanhita, 2023.
• Simple English: This just lists the specific crimes to which the presumption applies, which primarily deal with rioting, unlawful assembly, and related conspiracies or attempts.

Section 116: Birth during marriage, conclusive proof of legitimacy.

• Legal Text: The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
• Simple English: This is a “Conclusive Proof” rule, the strongest form of evidence. The law protects the legitimacy of children born into a marriage.
• The Rule: If a child is born:
  1. During a valid marriage, OR
  2. Within 280 days of the marriage ending (and the mother hasn’t remarried).
• …then the court MUST accept that the husband is the father and CANNOT accept any evidence to deny it.
• The Only Exception: The only way to overturn this is to prove that the husband and wife had absolutely no physical access to each other at any time the child could have been conceived (e.g., the husband was permanently separated, in prison, or overseas). DNA evidence alone is generally insufficient to overturn this presumption if access is proved.
• Example: A child is born 6 months after the parents legally separated but while they were still technically married. The law says the husband is the father (Conclusive Proof). The husband cannot simply claim he is not the father, unless he can prove he was on a different continent with no communication during the time of conception.

Section 117: Presumption as to abetment of suicide by a married woman.

• Legal Text: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume…that such suicide had been abetted by her husband or by such relative of her husband.
• Simple English: This is a “May Presume” rule designed to address cruelty against women in marriage (often related to dowry).
• The Trigger: If the prosecution proves these three facts:
  1. A married woman committed suicide.
  2. The suicide occurred within 7 years of the marriage date.
  3. The husband or his relatives subjected her to cruelty.
• …then the court MAY (has the option to) presume that the husband or relative pushed her to commit suicide (abetted it).
• Example: A woman commits suicide 5 years into her marriage. Evidence shows her in-laws habitually harassed her and called her incompetent. Because the suicide occurred within 7 years of marriage and cruelty is proven, the judge may presume the in-laws abetted the suicide. The burden shifts to the in-laws to prove their innocence.
• Explanation: Defines “cruelty” by referring to the specific section in the Bharatiya Nyaya Sanhita, 2023.

Section 118: Presumption as to dowry death.

• Legal Text: When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
• Simple English: This is a very strong “Shall Presume” rule used in cases of death related to dowry.
• The Trigger: If the prosecution proves:
  1. The woman died.
  2. Soon before her death, she was subjected to cruelty or harassment by the accused.
  3. This cruelty was in connection with a dowry demand.
• …then the court MUST presume that the accused caused the dowry death (murder or abetment).
• Example: A newly married woman dies of burns in her kitchen. Her parents testify that just two weeks before her death, the husband and his mother were harassing her for a car, and there are WhatsApp messages confirming the demands. Because harassment was proven “soon before death” and linked to dowry, the court shall presume the husband and mother caused the dowry death. The burden is now on them to prove their innocence.

Section 119: Court may presume existence of certain facts.

• Section 119(1): 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.
• Simple English: This is the court’s general power to use common sense and experience. The judge MAY (has the option to) presume that something happened if it follows the “common course” of life, nature, or business practice.
  • Illustration (a): a man who is in possession of stolen goods soon, after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
    • Simple English: Possession of recently stolen goods implies guilt. If someone is caught with stolen jewelry the day after the theft, the court may presume they are the thief or knew the goods were stolen, unless they can prove a legitimate way they got them.
  • Illustration (b): an accomplice is unworthy of credit, unless he is corroborated in material particulars;
    • Simple English: The court may presume that an accomplice (a co-conspirator who turned witness) is a liar, unless there is other, independent evidence to back up the key parts of their story.
  • Illustration (c): a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
    • Simple English: The court may presume that a signed business document (like a cheque or promissory note) was signed for valid payment (for “good consideration”) and not just as a favor.
  • Illustration (e): judicial and official acts have been regularly performed;
    • Simple English: The court may presume that official procedures were followed correctly (e.g., the police officer recorded the FIR properly, or the notary public verified the signature correctly).
  • Illustration (f): the common course of business has been followed in particular cases;
    • Simple English: If a business usually follows a process (e.g., every contract must be signed by the CEO), the court may presume that the process was followed in the current case.
  • Illustration (g): evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
    • Simple English: If you have a piece of key evidence (like a letter) and you refuse to show it in court, the judge may presume that the evidence is bad for your case.
  • Illustration (i): when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
    • Simple English: If a document showing a debt (like a loan agreement) is found in the hands of the person who owed the money (the debtor), the court may presume the debt has been paid off (discharged).
• Section 119(2): The Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:
• Simple English: This tells the judge that the “common sense” presumptions in sub-section (1) can be wrong in certain situations. The judge must be careful and consider the specific facts before applying the presumption.
  • Counter-Illustration (i) (Against Illustration a): A shopkeeper is caught with a marked rupee coin soon after a robbery. He deals with hundreds of rupees daily and can’t explain that one coin. The judge should be cautious, as the presumption of guilt might be unfair here, given the normal course of his business.
  • Counter-Illustration (ii) and (iii) (Against Illustration b): Shows cases where an accomplice’s testimony might be credible even without typical corroboration (e.g., if multiple accomplices captured separately give identical accounts of the crime).
  • Counter-Illustration (vii) (Against Illustration f): A letter was posted, but there were disruptions (like a flood or civil disturbance) that interrupted mail service. In this specific case, the presumption that the letter reached its destination (the common course of business) may not apply.
  • Counter-Illustration (ix) (Against Illustration h): A man refuses to answer a question that might expose him to financial loss in a totally separate business deal. The court should not assume his answer would be unfavorable to his current legal case.

Section 120: Presumption as to absence of consent in certain prosecution for rape.

• Legal Text: In a prosecution for rape under sub-section (2) of section 64 of the Bharatiya Nyaya Sanhita, 2023, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
• Simple English: This is a powerful “Shall Presume” rule in cases of sexual violence, placing the burden firmly on the accused.
• The Trigger: If the prosecution proves:
  1. The accused committed the act (sexual intercourse).
  2. The victim testifies in court that she did not consent.
• …then the court MUST presume that she did not consent. The burden then shifts to the accused to prove that she did consent.
• This eliminates the common defense tactic of attacking the victim’s character to imply consent.
• Example: During a trial, the accused admits to the sexual act. The woman takes the stand and unequivocally states, “I did not consent.” The judge must assume her statement is true and that consent was absent. The accused’s lawyer cannot simply argue, “She looked like she consented.” The accused must produce evidence to overturn the victim’s testimony and the presumption.
• Explanation: Clarifies that “sexual intercourse” means any of the acts listed in the relevant section of the Bharatiya Nyaya Sanhita, 2023.