Chapter 7 of the Indian Evidence Act, 1872 talks about burden of proof and presumption. According to Section 101- whenever a person desires the court to give judgment depending on the facts that he asserts, then he must prove that those facts exist. When a person is bound to prove the existence of these facts – then it is said that the burden of proof lies on that person.

In- ‘Jarnail and State of Punjab’, it was held that in all criminal cases the responsibility of proving if the accused has committed a crime beyond reasonable doubt is on the prosecution.

Burden of proof:-

        The question that now arises is on whom does the burden of proof lie in a suit/proceeding? The burden of proof in a suit or a proceeding lies on that person, who would fail if there isn’t any evidence produced by any of the parties. E.g. – ‘A’ sues ‘B’ that he is in possession, stating that it belonged to him. So if no evidence is produced by either sides, then ‘A’ would be in possession of land and would fail, therefore burden of proof is on ‘A’, as stated under section 102.

In- ‘Triro and Devi Raj’, it was held by the Court that because of the delay in constructing the suit, the defendant had prayed the Court over a limitation of period. The plaintiff had burden of proof to see if the cause of delay is true and proving it within period or not.

       There are situations when evidence needs to be made admissible in the Court. In such situation Section 104 states that the burden of proving any fact, which is essential to be proved by that person who wishes to give the evidence for the same.

      ‘A’ wishes to prove ‘B’s dying declaration so ‘A’ needs to prove ‘B’s death first. Every law in legal system has exceptions to it. The case with burden of proof is same. The burden of proving that the case lies within the exceptions is on whom, is stated in Section 105. It states that whosoever takes the defense of exceptions has the burden of proving that exception & circumstances. E.g. – exception of unsoundness of mind, grave and sudden provocation etc. as mentioned under general exception in Indian Penal Code (45 of 1860) or proviso, or within any special exemption in the same code.

           Intention / mens rea also play a vital role in the case of burden of proof. Whenever an accused person needs the court to believe that his intentions were different from what is been seen by the circumstances of the committed act, then, burden of proof is on the accused. This is explained in Section 106.

In- ‘Eshwari and Karnataka’, the Court held that if a man and a women is found hiding under the bedroom of the deceased who died because of succumbing to injuries, then the burden of prove lies on that man and women to explain their presence in the room and circumstances.

       There have been many cases before the Supreme Court, where a person is missing for a period of seven years and no one knows about his whereabouts, then he is considered dead. Section 108 states that- the burden of proving that the person is alive, the one who has not been heard of for seven years lies on the person who affirms it. What is essential here is that the person shouldn’t be heard of for seven years by those who would naturally have heard of him if he was alive.

            When issues arise due to the existence of the relationship of landlord and tenant in property matters, principle and agent in contractual situations or in case of partners in any business, then according to Section 109 – the burden of proof would lie on the person who affirms it by stating that the relationship does not stand / cease to stand. In cases of ownership of land, property or anything in that matter, the person who affirms that he is not the owner of the thing in question before the court has the burden of proof. Otherwise owner doesn’t have burden of proof under Section 110. A son just attained majority, made a sale to his father. Later he filed a suit stating his father is in possession of active confidence. In such situation when there is a question of good faith under Section 111, then, the one who stands at a position of active confidence has the burden of proof. In the above case, the father is in active confidence; therefore, the burden of proof is on father.


        Section 111A states Presumption on to certain offences. Offences such as criminal conspiracy, abetment, attempt to commit murder or other sections mentioned under Section 121,122,123 of the Indian Penal Code, when committed by a person who is accused under 111A- that he has committed the offence specified above in any area that is declared to be disturbed areas under any enactment, or for a period of more than 1 month, has been under extensive disturbance. Now, it is sown that the accused was present at that place, in that area at the specified time, then, it is presumed that he has committed the offence.

       What amounts to conclusive proof of legitimacy and how it is presumed by the Court is given under Section 112. When a person is born during the continuance of a valid marriage, or within 280 days after its dissolution and the mother remained unmarried then this shall be the conclusive proof & presumed that the child is legitimate until and unless it is otherwise proved that the parties had no access to each other at the time he could have begotten.   

      In cases where a women has committed suicide, and abetment is done by husband/ or other family members within 7 years of marriage & she had been subjected to cruelty. (Meaning of cruelty as mentioned in Section 498A of the Indian Penal Code), by the husband/ or his family member. In such situations, the Court presumes that the suicide had been abetted by the husband/ or other members of the family under Section 113A of Indian Evidence Act, 1872. This is presumed in dowry deaths as well under Section 113B of this Act. When a person commits dowry death of a women and it is shown that she was subjected to cruelty before her death for the purpose of dowry.

      There are heinous offences committed such as rape under Section 376 of Indian Penal Code, where sexual intercourse by the accused has been proved by the accused; and the question is regarding consent. When she states in her evidence before the Court that she didn’t consent then the court presumes that she didn’t give her consent. There isn’t a question of burden of proof under Section 114A.

In- ‘Nawab Khan and State’, the Court held that person with whom the sexual intercourse is committed tells the Court that it was a non-consensual sex then the Court will presume that there wasn’t any consent.


In most of the cases, presumption imposes the burden of proof to be on the party against whom the said presumption is operable. In reality, both these concepts are closely related to each other. There have been situations where the burden of proof has been shifted to the defendant due to presumptions made. Therefore, both these concepts are different and inter-related to each other in their own way.

Article by: Mukti Heliwal, 3rd Year Law Student at Bharati Vidyapeeth New Law College



1990 SCC 1779.

AIR 1996 SC 755

AIR 1993 J&K 14

1994 SC.

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