Burden of proof: the general rules

Bharatiya Sakshya Adhiniyam · Unit IV · Topic 15 of 26 · 7 min read

Onus probandi under sections 104 to 107 of the Bharatiya Sakshya Adhiniyam: who must prove, the legal and evidential burden, how the onus shifts, and the different standards in civil and criminal cases, with Addagada Raghavamma and Rangammal.

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On this page

1. Meaning of burden of proof
2. On whom the burden lies: section 105
3. Burden as to a particular fact: sections 106 and 107
4. Legal burden and evidential burden
5. Standard of proof
6. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two questions in every burden answer. First, who has to prove the case as a whole (sections 104 and 105). Second, who has to prove a particular fact (sections 106 and 107). Keep the two apart, and then say how heavy the burden is: a preponderance of probability in a civil suit, proof beyond reasonable doubt for the prosecution in a criminal trial. The Law of Evidence (Bharatiya Sakshya Adhiniyam, 2023) keeps the old rules word for word and only renumbers them: sections 101 to 104 of the Indian Evidence Act, 1872 are now sections 104 to 107.

1. Meaning of burden of proof

Burden of proof (onus probandi) is the obligation of a party to prove a fact. Section 104 (old s.101) states the basic rule: whoever wants a Court to give judgment about a legal right or liability that depends on facts he asserts must prove that those facts exist, and when a person is bound to prove a fact, the burden of proof is said to lie on him. The rule rests on the maxim ei qui affirmat non ei qui negat incumbit probatio: the burden lies on the one who affirms, not on the one who denies. A negative is hard to prove, so the law asks the person who asserts a fact to establish it.

The illustrations make it concrete. If A wants B punished for a crime, A must prove that B committed it. If A claims land in B’s possession on facts that B denies, A must prove those facts.

2. On whom the burden lies: section 105

Section 105 (old s.102) gives a practical test: the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. Apply the test by imagining a trial in which nobody leads evidence and asking who loses.

A sues B for land in B’s possession, claiming it under the will of C, B’s father. With no evidence on either side, B keeps possession. The burden is on A.
A sues B on a bond. B admits execution but says it was obtained by fraud. With no evidence, A would succeed because the bond is admitted. The burden of proving fraud is on B.

The second illustration shows that the burden can rest on the defendant on a particular issue. Where the defendant admits the plaintiff’s case and sets up new facts in avoidance, he must prove them.

3. Burden as to a particular fact: sections 106 and 107

Section 106 (old s.103) says the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless a law places it on a particular person. In the illustration A prosecutes B for theft and wishes to show that B admitted the theft to C; A must prove the admission. B wishes to show that he was elsewhere at the time; B must prove the alibi. So even in a criminal trial an accused who sets up a specific fact like an alibi has to give some evidence of it, although the prosecution never loses its duty to prove the charge.

Section 107 (old s.104) deals with preliminary facts. Where a fact has to be proved before some other evidence becomes admissible, the person who wants to give that evidence must prove the preliminary fact. To prove a dying declaration of B, A must first prove that B is dead. To give secondary evidence of a lost document, A must prove that it has been lost. Section 141(2) works with this rule at the trial: the Judge may insist that the foundation be laid first. (Dying declarations and secondary evidence are dealt with in Units II and III.)

4. Legal burden and evidential burden

Writers distinguish two senses of the phrase:

Legal burden (burden of proof on the pleadings, or the persuasive burden). It is fixed by the substantive law and the pleadings, it never shifts, and the party who carries it loses if, at the end, the Court is left in doubt. This is the burden of sections 104 and 105.
Evidential burden (the burden of adducing evidence, often called the onus). It shifts back and forth during the trial. Once the party with the legal burden leads evidence that, if believed, would prove his case, the onus moves to the other side to rebut it.

The Supreme Court drew the distinction in Addagada Raghavamma v. Addagada Chenchamma, 1963 INSC 94, AIR 1964 SC 136. Subba Rao J. explained that there is an essential distinction between burden of proof and onus of proof: the burden of proof lies on the person who has to prove a fact and it never shifts, whereas the onus of proof shifts, and the shifting takes place when one party gives evidence sufficient to raise a presumption in his favour. In Rangammal v. Kuppuswami, 2011 INSC 399, (2011) 12 SCC 220, a partition suit, the High Court had put on a third party the burden of disproving a sale deed set up by the plaintiff. The Supreme Court reversed it: under section 101 (now 104) the party who relies on the sale deed must prove it, and the weakness of the other side’s case does not relieve him of that burden.

Trap. Do not write that “the burden of proof shifts.” The legal burden stays where sections 104 and 105 put it. What shifts is the onus, the duty to lead evidence in answer. Presumptions (sections 110 to 120) are the commonest way the onus moves.

5. Standard of proof

Section 2(1)(j) defines “proved”: the Court believes the fact exists, or considers its existence so probable that a prudent man ought, in the circumstances, to act on the supposition that it exists. The same definition is applied differently in the two kinds of case.

Civil cases. A preponderance of probabilities is enough. The party with the burden wins if his version is more probable than not.
Criminal cases. The prosecution must prove guilt beyond reasonable doubt. The accused is presumed innocent. In Woolmington v. Director of Public Prosecutions (House of Lords, 1935) Viscount Sankey called this the “golden thread” running through the web of English criminal law, subject only to the defence of insanity and to statutory exceptions. Indian law follows the same rule.
Accused proving an exception. Where the burden is on the accused (section 108, next note), he need only prove his plea on a preponderance of probability, not beyond reasonable doubt.

6. Problem

A sues B for Rs. 2 lakh lent on a promissory note. B admits signing the note but says it was signed in blank and filled up later for a larger sum. On whom is the burden?

Issue. Who carries the burden on the issue of material alteration.

Law. Section 105: the burden lies on the party who would fail if no evidence were given. Illustration (b) to section 105: where execution of a bond is admitted and fraud is pleaded, the burden of proving fraud is on the defendant. Section 106: the person who wants the Court to believe a particular fact must prove it.

Application. Execution is admitted. If neither side led evidence, A would succeed on the admitted note. B’s plea that the note was filled up later is a new fact he wants the Court to believe. On that issue B carries the burden. A still has to show the note and the debt; once he does, the onus is on B to make out the alteration.

Conclusion. The burden of proving the alleged alteration is on B, and he must establish it on a preponderance of probability.

How this is examined

As an essay: “What is burden of proof? Explain the rules relating to burden of proof” (February 2025) and “What are the rules of burden of proof? State the provisions” (June 2025, Law of Evidence). Start with sections 104 and 105 and their illustrations, then sections 106 and 107, then the legal and evidential burden with Addagada Raghavamma, then the standard of proof, and end with a paragraph on the exceptions in sections 108 and 109 (covered in the next note). Short problems on who bears the burden are set every year; solve them by naming the section and its illustration.

Now try the real questions: Bharatiya Sakshya Adhiniyam past question papers.