BURDEN of PROOF is Static; ‘ONUS’ alone Shifts, According to Indian Law

Jojy George Koduvath & Saji Koduvath.

Introduction

The doctrine of ‘burden of proof’ indicates the party upon whom the responsibility lies to establish the truth of a relevant fact in a legal proceeding.

In certain cases, the entire burden of proof may rest on one party to the litigation. In others, it may ‘shift’ to the other side when the first party prima facie discharges its obligation. It is, in most cases, depended upon the standard of proof expected from the parties to the litigation. In criminal cases, the standard of proof rests upon the prosecution and is ‘beyond a reasonable doubt’; whereas in civil cases, it is simply the ‘preponderance of the evidence’ or ‘balance of probabilities.’

Part I

Burden of Proof as a Legal Concept in Indian and English Law

Sec. 104 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Sec. 101 of the Indian Evidence Act, 1872) defines Burden of Proof as under:

  • “104. Burden of proof: 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.”

The Evidence Act in force in India systematically codifies the rules of evidence in civil and criminal cases, and provides clear guidelines on what is admissible in court and how evidence is to be presented.

But, in the UK (especially England and Wales), there is no full-fledged or comprehensive single enactment similar to the ‘Evidence Act’ in India.

Fundamentally, English courts follow the Common Law (judge-made law) with respect to the basic doctrines of evidence, such as the burden of proof, standard of proof, probative evidence, relevance, the res gestae rule, direct evidence, circumstantial evidence, and primary evidence. Various procedural enactments also provide piecemeal statutory provisions. The important statutes in this regard are –

  • Criminal Justice Act, 2003,
  • Youth Justice and Criminal Evidence Act, 1999,
  • Civil Evidence Act, 1995,
  • Police and Criminal Evidence Act, 1984 (PACE).

Burden of Proof – Primary Principles

1. Burden of Proof is Static; It never Shifts

As shown above, the “burden of proof” is depended upon the obligation upon each party in a legal proceeding to furnish evidence. The fundamental rules regarding the burden of proof in the Indian judicial system, as established by judicial authorities, can be summarized as under:

  • The burden of proof is always static and does not shift.
  • Burden of proof lies on the person who would fail if no evidence is adduced on either side.
  • Ordinarily, the burden of proof would be on the party who asserts the affirmative of an issue.

2. ‘Onus’ of proof ‘shifts’

‘Onus’ literally means – ‘the responsibility or duty to do something‘. In Indian law, “onus of proof” has a distinct connotation:

  • Though Indian Evidence Act does not use the word “onus”, authoritative judicial pronouncements have clarified that it differs from the ‘static’ burden of proof.
  • The doctrine of onus of proof ‘shifts’ the duty of proving a fact upon one party (when sufficient or proper evidence is furnished by it) to the other party. That is, when the ‘onus’ on the first party is discharged, it shifts to the opposing party to provide rebuttal or counter evidence.

In Rajesh Jain v. Ajay Singh, AIR 2023  SC5018; 2023-10 SCC 148, it is observed as under:

  • “29. There are two senses in which the phrase ‘burden of proof ’ is used in the Indian Evidence Act, 1872…. One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the ‘legal burden’ and it never shifts, the latter is called the ‘evidential burden’ and it shifts from one side to the other. [See: Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)].
  • 30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party’s case.
  • On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury’s Laws of England, 4th Edition para 13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G. Vasu v. Syed Yaseen (AIR 1987 AP 139) affirmed in Bharat Barrel v. Amin Chand [1999- 3 SCC 35].”

See also: Gian Chand & Brothers v. Rattan Lal, AIR 2013 SC 1078,

Burden of proof never shifts; Onus of proof shifts

In Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136, it was pointed out – there is an essential distinction between burden of proof and onus of proof. It reads as under:

  • “Burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.”

This principle in Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 (burden of proof never shifts, and onus of proof shifts) is affirmed in the folloing decisions of our Apex Court-

  • Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 2024-8 SCC 712;
  • Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379;
  • Mohd.  Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689
  • Union of India v. Vasavi Coop. Housing Society, 2014- 2 SCC 269;
  • Gian Chand & Brothers v. Rattan Lal @ Rattan Singh, AIR 2013 SC 1078: 2013-2 SCC 606;
  • Sebastiao Luis Fernandes v. K.V.P.  Shastri, 2013-15 SCC 161;
  • Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971; 2006-5 SCC 558;
  • R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, AIR 2003 SC 4548; 2003-8 SCC 752.

‘Burden of Proof’ and ‘Onus of Proof‘- English Law

These terms (‘burden of proof’and ‘onus’) are often regarded as synonymous expressions by English courts, and are used interchangeably. (See: R v Hunt [1987] AC 352: (1987) I All ER I (HL); Cross and Tapper on Evidence.)

The terms ‘Legal burden‘ and ‘Evidential burden‘ are legal concepts primarily rooted in English Law. The ‘legal burden’ identifies the party responsible for proving a fact; the ‘evidential burden’ pertains to whether sufficient evidence has been presented to warrant proper adjudication.

Halsbury’s Laws of England

Halsbury’s Laws of England, 4th Edition, Volume 17, para 13 and 14, explains these legal concepts under the head, ‘Legal burden‘ and ‘Evidential burden‘. It reads as under:

  • “13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”
  • “14. The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence”. (Referred to in: Rajesh Jain v. Ajay Singh, AIR 2023 SC 5018; 2023-10 SCC 148).

Part II

Burden of Proof Loses its Importance

  • (a) if both parties adduced evidence
  • (b) if there is sufficient evidence on an issue.

Burden of Proof Gets Significance

  • (a) when no evidence at all on the question in dispute
  • (b) when a person on whom the burden of proof lay, failed to adduce any evidence altogether
  • (c) when no adequate evidence so as to shift onus, or
  • (d) when best evidence is withheld (Sriram Industrial Enterprises Ltd.  v. Mahak Singh, AIR 2007 SC  1370; 2007-4 SCC 94).
  • (e) when Court cannot “Make Up its Mind” (Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278) from the evidence adduced.

Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 of the Evidence Act allows the court to take the presumption that, had that evidence been produced, it would have been unfavourtable to him.

Weakness of the Defence & High Degree of Probability

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. But it must be noted that the plaintiff need to show only a high degree of probability; and that it shifts the onus on the defendant.

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

  • “The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

The Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, 2020-7 SCC 275, held as under:

  • “The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”

Ownership & Title – High degree of Probability, Onus would “Shift“

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752, the law is stated in the following terms :

  • “A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
  • In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof:
    • burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
  • In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
  • In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
  • … A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
  • (Quoted in: Anil. Rishi v. Gurbaksh Singh, 2006-5 SCC 558; City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Adverse Inference Drawn (even if no burden), if Withheld Documents

The Supreme Court held in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

  • Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

From the above, it is definite that, in a proper case, if the defendant who withholds important document (admittedly) in his possession, the court can take the adverse presumption against the defendant, even if the plaintiff (who has the burden of proof or who is bound to create a high degree of probability) did not adduce any evidence.

Duty to Produce Helpful Document

In National Insurance Co. Ltd., New Delhi v. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:

  • “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (Quoted in: Sushil Kumar v. Rakesh Kumar, 2003-8 SCC 673)

Modern Trend in English Law

In a leading Scottish case, Nimmo v. Alexander Cowan & Sons Ltd., 1967 SC (HL) 79; [1968] AC 107, the majority of the House of Lords held that, where a statute does not expressly indicate the burden of proof in respect of a particular fact, the court should consider practical considerations in determining on whom the burden lies — particularly the relative ease or difficulty with which each party might face in discharging the burden. Analysing Nimmo, in R v Hunt [1987] 1 AC 352, Lord Griffiths said:

  • “When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged.”

R v Hunt [1987] 1 AC 352, is followed in subsequent cases which include –

  • R v Horncastle [2009] UKSC 14
  • R v Wright [2009] EWCA Crim 2169
  • R v Sheldrake [2004] UKHL 43.

Burden of Proof Not Relevant when “Both Sides had Adduced Evidence”

In Moran Mar Basselios Catholicos v. Thukalan paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

  • The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India,  1964-3 SCR 191, the Supreme Court held as under:

  • “The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ” 

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

  • “On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay, failed to adduce any evidence altogether.”

The Supreme Court, in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, referring Sec. 102 of the Evidence Act (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), explained ‘burden of proof’ as under:

  • “Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

Burden of Proof Remains Only Academic

In Narayan v. Gopal, AIR 1960 SC 100, it was held as under:

  • “The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail, where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.”

In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

See also:

  • Seturatnam Aiyar v. Venkatachala Gounden, (1919)   47 IA 76,
  • Chidambara Sivaprakasa v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292,
  • Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278,
  • Mohd.  Abdullah Azam Khan v. Nawab Kazim Ali Khan, 1976-3 SCC 32,
  • Sushil Kumar v. Rakesh Kumar, 2003-8 SCC 673.

Courts prefer Substantial Justice in the Judicial Process

In Lakshmi v.  Chinnammal (Mukundakam Sharma, S.B. Sinha), AIR 2009 SC 2352, 2009-13 SCC 25, it is held as under:

  • “12. If bringing on record a document is essential for proving the case by a party, ordinarily the same should not be refused; the Court’s duty being to find out the truth. The procedural mechanics necessary to arrive at a just decision must be encouraged. We are not unmindful of the fact that the court in the said process would not encourage any fishing enquiry. It would also not assist a party in procuring a document which he should have himself filed.”

In Kailash v. Nanhku, 2005-4 SCC 480, it was held as under :

  • “All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.” (Quoted in: Lakshmi v.  Chinnammal, AIR 2009 SC 2352, 2009-13 SCC 25)

In Uday Shankar Triyar v. Ram Kalewar Prasad Singh, 2006-1 SCC 75, it was observed as under:

  • “17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a hand-maiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognized exceptions to this principle are:
  • where the Statute prescribing the procedure, also prescribes specifically the consequence of non-compliance.
  • where the procedural defect is not rectified even after it is pointed out and due opportunity is given for rectifying it;
  • where the non-compliance or violation is proved to be deliberate or mischievous;
  • where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court.
  • in case of Memorandum of Appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” (Quoted in: Lakshmi v.  Chinnammal, AIR 2009 SC 2352, 2009-13 SCC 25)

Conclusion

From Chapter VII, (Of the Burden of Proof) of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Chapter VII of the Indian Evidence Act, 1872), it is deciphered by our courts –

  • Burden of proof is constant, and
  • Onus of proof alone shifts.

Authoritative judicial pronouncements enjoin that it is improper to say: ‘the burden of proof shifts.’

It is also noteworthy that Indian courts prefer substantial justice in the judicial process and they consistently emphasize that it is the duty of the party in possession of a document (which would aid in delivering justice) to produce it; and such a party would not be allowed to take shelter behind the abstract doctrine of the burden of proof.

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