burden of proof
Under the BSA, whoever wants the court to give judgment on a legal right depending on the existence of facts he asserts must prove that those facts exist. The burden lies on the person who would fail if no evidence at all were given on either side. The burden of proving a particular fact lies on the person who wants the court to believe it, unless a law provides otherwise.
Two senses must be kept apart. The legal burden (burden of proof proper) is fixed by law and never shifts, for example the prosecution's burden to prove guilt. The evidential burden (onus) shifts during the trial as evidence is led. Statutes sometimes place a burden on the accused, as for general exceptions or facts especially within his knowledge.
Example
Since the accused pleaded private defence, the burden of proof of that exception lay on him under s.108 BSA, but only on a preponderance of probabilities.
In Indian law
- Sections 104 to 106, Bharatiya Sakshya Adhiniyam, 2023 (old ss.101 to 103 Evidence Act)
- Section 108, Bharatiya Sakshya Adhiniyam, 2023 (old s.105 Evidence Act): burden of proving exceptions
- Shambu Nath Mehra v. State of Ajmer, 1956 INSC 15
See also
affirmanti non neganti incumbit probatio · standard of proof · presumption · beyond reasonable doubt
Read more in the study notes
- Burden of proof: the general rules (Bharatiya Sakshya Adhiniyam)
- Burden of proof: exceptions, special knowledge and statutory shifts (Bharatiya Sakshya Adhiniyam)
- Penal provisions for dishonour of cheques (ss.138-148) and the Bankers' Books Evidence Act, 1891 (Banking Law)
- Presumptions in dowry death, abetment of suicide and rape (Bharatiya Sakshya Adhiniyam)
- Co-operative societies (Business Environment)
- Kinds of companies (Company Law)