Burden of Proof under the Indian Evidence Act

The Burden of Proof under the Indian Evidence Act: Explained

This article on ‘Burden of Proof under the Indian Evidence Act: All you need to know‘ was written by an intern at Legal Upanishad.


This article explores the concept of the burden of proof as laid down in Chapter VII of the Indian Evidence Act. The article encapsulates the aspects covered by the Evidence Act by relying upon judicial pronouncements on the same. The article briefly touches upon how the concept of burden of proof differs from that of the onus of proof as set out by the legislation and the Courts. The article then delves into a few concepts as explained by the Courts describing the burden of proof.

Burden of Proof

Chapter VII (Sections 101-114) of the Indian Evidence Act, 1872 (the “Act”) compactly enlists the provisions on the burden of proof. Per Section 101, the person who claims the assertiveness of an issue, i.e., the one making the claim, is vested with the burden of proof.1 This is in line with “ei incumbit probation qui dicit, non qui negat,” the Latin maxim of “criminal innocence.”2 A plain reading of Section 101 makes clear the following:

  1. If an individual desires the court to give a judgment in his/her favor based on the existence of any right or liability, then such an individual must prove the existence of facts.
  2. When an individual is to prove the existence of facts, the burden rests on such an individual and this is called the burden of proof.

From the aforementioned, it follows that a prima facie case needs to be set out by the onus of proof bearing party. In case a party fails to do so, the shortcomings of the opposing party can be relied upon as a guiding factor.

The Supreme Court has expounded the notion and importance of the burden of proof in the following manner3:

The expression “burden of proof” may include within its ambit two distinct aspects:

  1. Before a judicial decision is laid down in its favor, a party must prove a claim or allegation.
  2. Evidence is brought in by either party in case of a contested issue.

The significance of the burden of proof is realized in instances wherein a party eventually fails to owe to the lack of discharging of the burden placed upon it.

Section 102 of the Act however establishes that the general rule is that the burden of proof rests on the party whose case would collapse if no evidence is given. Resultantly, the burden primarily lies on the plaintiff and once he is successful in discharging such burden and presents a case that enables him to get the relief, there occurs a shift in the onus to the defendant, who is now responsible for proving the circumstances, if any, which would incapacitate the plaintiff from claiming such relief.4

Section 103 of the Act simply states that the burden of proof concerning a particular fact lies on the individual interested in making the court accept as true the existence of the fact, provided that the contrary is not provided for by the law. Section 106 of the Act places the burden of proof on the person who is equipped with the knowledge of a fact. The cardinal principle behind this provision is that the burden of proof pertains only to those cases of defense which are supposedly in a special knowledge of a fact, i.e., possessing special knowledge adjoining the circumstances of an occurrence.5

Burden of Proof under the Indian Evidence Act
The Burden of Proof under the Indian Evidence Act

Difference between the burden of proof and onus of proof

The Supreme Court highlighted the difference between the expressions “burden of proof” and “onus of proof” in the Anil Rishi Case.6 In this case, a sale deed was executed after the parties entered into an agreement of sale, which was later on challenged by the plaintiff through a suit for declaration on the contention that the sale deed was forged and fabricated and thus void. The issue before the Trial judge and subsequently the High Court was whether the document of the sale deed was valid and genuine.

The High Court rejected the claim stating that the burden of proof in fraud, misrepresentation, or undue influence cases rests on the individual in the dominating position when there exists a fiduciary relationship with one individual holding a place of active confidence. Aggrieved by the impugned judgment, the plaintiff (defendant in the prior proceedings) approached the Supreme Court.

Holding that lower courts committed an erroneous error of law, the SC opined that the legal position to prove a forged or fabricated document remains unaffected by the fact that the defendant was in possession of the original sale deed since he can be asked to produce the same. The SC delineated the variation between the concepts of ‘burden of proof’ and ‘onus of proof’ in the following manner:

“The right to begin follows onus probandi. It assumes importance in the early stage of the case. The question of onus of proof has greater force, where the question is which party is to begin.

The burden of proof is used in three ways:

  1. To indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;
  2. To make that of establishing a proposition against all counter-evidence; and
  3. An indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff…”

Judicial Decisions on the burden of proof

The Supreme Court has laid down several judgments which delve into different aspects of the burden of proof. The main principles discussed have been mentioned in the succeeding section.

The Apex Court has stated that “the burden to prove the guilt beyond doubt does not shift on the suspect save where the law casts duty on the accused to prove his/her innocence.”7

In relation to the application of S.106, the SC has observed that “the burden is always on the prosecution to bring home the guilt of the accused beyond a reasonable doubt. Thus, Section 106 constitutes an exception to Section 101.”8

The Court has also expounded upon the concept of reverse burden of proof by opining that “There are a few statutes which create a reverse burden of proof. The relevant section in such statutes clearly presumes the existence of certain facts which the accused has to rebut – it proceeds on the basis that if a particular state of facts exists then it is on the accused to prove

the existence of such facts as improbable or not existing at all.”9 This is in consonance with Section 114 of the Act which pertains to the presumption of certain facts by the Court taking into account the natural course of events.


The burden of proof is an indispensable component of a case that cannot be overshadowed or ignored. Whatever the case, the aforementioned concept will indeed be relevant. Getting a knack for the manner in which the onus of proof shifts throughout the case is of utmost importance. The burden of proof on an issue critical to culpability in an offense arguably interferes the most with the presumption of innocence, and its necessity necessitates the strongest justification. The core premise is that the burden of proof lies on the individual claiming relief from a court of law, except when the law expressly requires the opposition to prove the fact’s existence or lead evidence.



  • Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd ., (2005) 7 SCC 764
  • Anil Rishi v Gurbaksh Singh, (2006) 5 SCC 558
  • Bijender v. State of Haryana, (2022) 1 SCC 92
  • Dilip v. State, (2017) 245 DLT 61
  • Narayan Bhagwant Rao Gosavi Balajiwale v. Gopal. Vinayak Gosavi, AIR 1960 SC 100
  • Raju Roy v. State of W.B., 2022 Cri LJ 439
  • Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116.

Online Sources