Burden of Proof

 

Re: Burden of Proof and Onus of Proof

 

Case Title	Issue	Relevant Observations
Phoenix Mills Ltd. v. Union of India, 2004 SCC OnLine Bom 33		Read Para 17 ……..The burden always lies on the person who asserts that the particular goods are excisable. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. There is essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Onus means the duty of adducing evidence. Assuming that onus has shifted on the petitioner, then, the evidence produced by the petitioners has substantially established the link between the material supplied and used by the petitioners.
Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133		Read para 19, 20, 21, 22, 23   19. "Proof", which is the effect of evidence led, is defined by the provisions of Section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty or burden of showing to the court what conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations; but, the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court.   20. The total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by Sections 101 and 102 of the Evidence Act but also the special or particular ones imposed by other provisions such as Sections 103 and 106 of the Evidence Act. Section 103 enacts: "103. The 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 any law that the proof of that fact shall lie on any particular person." And, Section 106 lays down: "106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 21. In judging whether a general or a particular or special onus has been discharged, the court will not only consider the direct effect of the oral and documentary evidence led but also what may be indirectly inferred because certain facts have been proved or not proved though easily capable of proof if they existed at all which raise either a presumption of law or of fact. Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence.   22. True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the party which initiates a proceeding or comes with a case to court offers no evidence to support it, the presumption is that such evidence does not exist. And, if some evidence is shown to exist on a question in issue, but the party which has it within its power to produce it, does not, despite notice to it to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or particular onus.   23. The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic, embodied in procedural law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence. What is weighed at the end is one totality against another and not selected bits or scraps of evidence against each other.
Babu v. State of Kerala, (2010) 9 SCC 189		27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.   28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution
Ishar Das v. Administrator, Union Territory of Delhi, 1975 SCC OnLine Del 60	.	15. Subba Rao, J. (as he then was), speaking for the Supreme Court in Raghavamma v. A. Chenchamma (A.I.R. 1964 S.C. 136 at p. 143) (7) referring to sections 101 to 103 explained the distinction between burden of proof and onus of proof in the following terms: "There is an essential distinction between Burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.   16. The burden of proof that lies under Section 101 and that under Section 102 of the Evidence Act is distinguishable: the former has been described as a "legal" or "persuasive burden" and the latter as the evidential burden or as the "burden of adducing evidence" (Phipson). It is easy enough to say concerning the legal or persuasive burden that it lies on whichever party would fail if no evidence were given on either side or if the allegation to be proved is struck out of the record. But, as Rupert Cross points out "A moment's reflection should suffice to show that these tests are only applicable to the evidential burden; they cannot apply to the legal burden in all cases." "As a matter of commonsense", "the legal burden of proving all facts essential to their claims normally rests upon the plaintiff in a civil suit or that prosecutor in criminal proceedings"; it would go to such length as the burden of proof of the assertion still resting upon the plaintiff even "if the assertion of a negative is an essential part of the plaintiff's case." (Vide Bowen, L.J. in Abrath v. North Eastern Rail, Co., 1883 11 Q.B.D. 440 at p. (457) (8) a decision which was affirmed by the House of Lords in (1886) 11 A.C. 247). Cross explains the difficulty which may sometimes arise with regard to the question whether an assertion is essential to a party's case or that of the adversary by referring to the decision of the House of Lords in Joseph Constantine Steamship Line, Ltd. v. Imperial Smelting Corporation, Ltd. (1942 A.C. 154) (9). In that case the charterer of the ship claimed damages from the owners for failure to load; the owners pleaded frustration of the contract by reason of the destruction of the ship owing to an explosion. The question of fact for determination was whether the explosion had been caused by the fault of the owner, but the evidence was scanty on this question. The House of Lords held that the plaintiff had the legal burden of proving default when frustration of the contract was pleaded. In some cases, as Cross explains, it becomes necessary to ascertain the "legal burden of proof" even after consulting the precedents concerned with the various branches of substantive law. Even greater difficulty arises when the existence or non-existence of any fact in issue may be known for certain by one of the parties and this is often said to have an important bearing on the incident of burden of proof of that fact. Reference in this connection is made by him to R. v. Turner, (1816) 5 m. & S. 206) where the accused was prosecuted for having pheasants and hares in his possession without the necessary qualification or authorisation; ten possible qualifications had been mentioned in the relevant statute. The King's Bench held that it was unnecessary for the Crown to prove that these qualifications did not apply to the case. In R. v. Spurge, (1961) 2 Q.B. 205 it was held that "there was no rule of law that where the facts are peculiarly within the knowledge of the accused the burden of establishing any defence based on these facts shifts to the accused"   18. Reference has been made to some of these aspects in an endeavour to comprehend the amplitude of the concept of the "shifting" of onus as a "continuous process in the evaluation of evidence" as explained by Subba Rao J. The above passages from Cross and the legal literature on the subject cited by him clearly show that in some cases at least it may not be enough to start at the point where the onus shifts from the landlord to the tenant and to let it stay with him for ever, unless by what he has done or failed to show, in other words, by his failure to play the ball back to the other, the legal burden which has been placed on the landlord, under this piece of substantive law has been discharged. It cannot, for instance, be said that once the landlord gives a version of the tenant's means, however fanciful it may be the onus shifts to the tenant, it stays permanently with him thereafter and that the landlord has nothing further to do with it. To say so would obviously be to throw the burden on the tenant despite Section 19 laying the legal burden, in terms of section 101 of the Evidence Act, on the landlord. It is, therefore, crucial to understand the distinction what Subba Rao, J. explained as the distinction between "burden of proof" and "onus of proof and the "onus of proof" being "continuously shifting in the appreciation of evidence". It would be an easy enough situation where the tenant does not let in any evidence at all or is seen to be guilty of fraudulent conduct and suppresses such evidence as may be in his possession or power and such suppression may in the circumstances of the case give rise to an adverse inference being properly drawn against him. The difficulty in appreciating the evidence in a situation of "shifting of onus as a continuous process", cannot be overcome by reliance on crutches like "unclean hands", an expression