07. Evidence Act 101-115

Delhi Law Academy

                                                      INDIAN    EVIDENCE    ACT

                         CHAPTER    VII            THE   BURDEN   OF   PROOF

Section 101                 Burden of Proof

  • Whoever desires a Court to give judgment
    • as to any legal right or liability
    • dependent on existence of facts which he asserts
  • must prove that those facts exist
  • When a person is bound to prove the existence of any fact
    • the burden of proof lies on that person

 

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

Illustration (b)

  • A desires a Court to give judgment
    • that he is entitled to certain land in 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

 

Section 102                 On whom burden of proof lies

  • 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

Illustration (a)

  • A sues B for land of which B is in possession
    • which A asserts was left to A by will of 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

Illustration (b)

  • A sues B for money due on a bond
    • 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

 

Section 103                 Burden of proof as to particular fact

  • 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 law
    • that proof of that fact shall lie on any particular person

Illustrations

  • 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

 

Section 104                 Fact to be proved to make evidence admissible 

  • Burden of proving any fact
    • necessary to be proved to enable any person
    • to give evidence of any other fact
  • is on the person
    • who wishes to give such evidence

Illustration

  • A wishes to prove a dying declaration by B
    • A must prove B’s death
  • B wishes to prove, by secondary evidence
    • contents of a lost document
  • A must prove
    • that the document has been lost

 

Section 105                 Burden of proof, for exceptions

  • When a person is accused of an offence
    • burden of proving existence of circumstances bringing his case
    • within any of the General Exceptions in IPC
    • or within any special exception in any other part of IPC
    • or in any law defining the offence
  • is upon him
    • and Court shall presume absence of such circumstances

 

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

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

Illustration (c)

  • Section 325 of IPC provides that whoever
    • except in cases provided for by section 335
    • voluntarily causes grievous hurt
    • shall be subject to certain punishments
  • A is charged with voluntarily causing grievous hurt u/s 325
  • Burden of proving the circumstances bringing his case u/s 335
    • lies on A

 

Section 106                 Fact specially within knowledge

  • When any fact is specially within the knowledge of any person
    • burden of proving that fact is upon him

 

Illustration (a)

  • When a person does an act
    • with some intention other than
    • that suggested by the character and circumstances of the act
  • burden of proving that intention is upon him

Illustration (b)

  • A is charged with travelling on a railway without a ticket
    • burden of proving that he had ticket is on him

 

Section 107                 Person known to be 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
  • burden of proving that he is dead
    • is on the person who affirms it

 

Section 108                 Person not heard of for seven years

  • But 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
  • burden of proving that he is alive
    • is shifted to the person who affirms it

 

Section 109                 Burden of proof as to relationship

  • 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
  • burden of proving that
    • they do not stand or have ceased to stand in those relationships
    • is on the person who affirms it

 

Section 110                 Burden of proof as to ownership 

  • When the question is
    • whether any person is owner of anything
    • of which he is shown to be in possession
  • burden of proving that he is not the owner
    • is on the person who affirms that he is not the owner

 

Section 111                 Proof of good faith in transactions

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

 

Illustration (a)

  • Good faith of a sale by a client to an attorney
    • is in question in a suit brought by the client
  • Burden of proving good faith of the transaction
    • is on the attorney

Illustration (b)

  • 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
  • Burden of proving good faith of the transaction
    • is on the father

 

Section 112                 Conclusive proof of legitimacy

  • The fact that any person was born
    • during continuance of a valid marriage between his mother and any man
    • or within 280 days after its dissolution, the mother remaining unmarried
  • shall be conclusive proof that
    • he is the legitimate son of that man
  • unless it can be shown
    • that parties to the marriage had no access to each other
    • at any time when he could have been begotten

 

Section 113A               Abatement of suicide by a married woman

  • When the question is
    • whether 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 seven years of her marriage
    • and her husband or such relative of her husband has subjected her to cruelty
  • court may presume, having regard to all other circumstances of the case
    • that such suicide had been abetted
    • by her husband or by such relative of her husband

 

Explanation

  • “cruelty” shall have the same meaning
    • as in section 498-A of IPC

 

Section 113B               Presumption as to dowry death

  • When the question is
    • whether a person has committed 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
  • court shall presume
    • that such person had caused the dowry death

 

Section 114                 Court may presume existence of certain facts

  • Court may presume existence of any fact
    • which it thinks likely to have happened
  • regard being had to common course
    • of natural events
    • human conduct
    • and public and private business
  • in their relation to facts of the particular case

 

Illustrations

  • Court may presume

(a)

  • that a man who is in possession of stolen goods after the theft
    • is either the thief or
    • has received the goods knowing them to be stolen
  • unless he can account for his possession

(b)

  • that an accomplice is unworthy of credit
    • unless he is corroborated in material particulars

(e)

  • that judicial and official acts
    • have been regularly performed

(f)

  • that common course of business
    • had been followed in particular cases

(g)

  • that evidence which could be and is not produced
    • would, if produced, be unfavorable to the person who withholds it

(h)

  • that if a man refuses to answer a question
    • which he is not compelled to answer by law
    • the answer, if given, would be unfavorable to him

(i)

  • that when a document creating an obligation
    • is in the hands of the obligor
    • the obligation has been discharged

 

As to illustration (a)

  • A shop-keeper has in his till a marked rupee soon after it was stolen
    • and cannot account for its possession specifically
    • but is continually receiving rupees in the course of his business

As to illustration (b)

  • A, a person of the highest character
    • is tried for causing a man’s death
    • by an act of negligence in arranging certain machinery
  • B, a person of equally good character, who also took part in the arrangement
    • describes precisely what was done
    • and admits and explains the common carelessness of A and himself

As to illustration (e)

  • A judicial act, the regularity of which is in question
    • was performed under exceptional circumstances

As to illustration (f)

  • The question is
    • whether a letter was received
  • It is shown to have been posted
    • but the usual course of the post was interrupted by disturbances

As to illustration (g)

  • A man refuses to produce a document
    • which would bear on a contract of small importance on which he is sued
    • but which might also injure feelings and reputation of his family

As to illustration (h)

  • A man refuses to answer a question
    • which he is not compelled by law to answer
  • but the answer to it might cause loss to him
    • in matters unconnected with the matter in relation to which it is asked

As to illustration (i)

  • A bond is in possession of the obligor
    • but circumstances of the case are such that
    • he may have stolen it

 

Section 114A               Absence of consent in prosecutions for rape 

  • In a prosecution for rape under clauses (a) to (n) of section 376(2) of IPC:
    • where sexual intercourse by the accused is proved
    • and the question is
      • whether it was without consent of the woman alleged to have been raped
    • and such woman states in her evidence before the court
      • that she did not consent
    • court shall presume that she did not consent

 

Section 115                 Estoppel 

  • When one person has by his declaration, act or omission
    • intentionally caused or permitted another person
    • to believe a thing to be true
    • and to act upon such belief
  • neither he nor his representative shall be allowed
    • in any suit or proceeding between himself and such person
    • to deny the truth of that thing

 

Illustration

  • A intentionally and falsely leads B to believe
    • that certain land belongs to A
    • and thereby induces B to buy and pay for it
  • The land afterwards becomes the property of A
  • A seeks to set aside the sale on ground that
    • at the time of sale he had no title
  • He must not be allowed to prove his want of title