Burden of proof

Dear Harsh

Proving and disproving of the facts and alligation is the matter of trial. In family matter rpoving and disproving the fact based on the examination of witnesses if there is not documentory proof in the case, and the questions for prooving and disprooving the facts are diffrent as per case.

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101. Burden of Proof -

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that 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.

(b) A desires a Court to give judgment that he is entitled to certain land in the 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.

COMMENTS

Joint family property

Merely because some of properties continue to stand in the name of plaintiff that by itself cannot lead to any conclusion that the property purchased by any one member of the family would necessarily be a part of joint family property and when evidence shows that the person who has purchased property had been engaged in an independent business for a sufficient long period; Baban Girju v. Namdeo Girju Bangar, AIR 1999 Bom 46.

Reasonable proof of ownership

In absence of any reasonable proof that defendant was the actual owner of the property, and plaintiff was only a name given does not prove that respondent was owner and plaint maker was only a name given to the property; Rama Kanta Jain v. M.S. Jain, AIR 1999 Del 281.

What to be proved by prosecution

It is well settled that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis; Narain Singh v. State, (1997) 2 Crimes 464 (Del).

Section 

102. On whom burden of proof lies. -

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.

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, 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.

(b) A sues B for money due on a bond.

The 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.

103. Burden of proof as to particular fact. -

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.

Illustration

¹[(a)] 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.

COMMENTS

Plea of alibi

Plea of alibi taken by accused, it is he who has to prove it; State of Haryana v. Sher Singh, AIR 1981 SC 1021: 1981 SC Cr R 317: 1981 Cr LJ 714: (1981) 2 SCC 300.

You can read section 101 to 114A of the Indian Evidence Act, all the sections are related to Burden Of Proof.

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This is wrong

However in my findings on plain 498A till now I have not found the burden shifting on the accused, I would like to quote a fewof the judgments which prove the contrary and are in line with what fighter stated:

In Sarla Wadhmare Vs State of Maharashtra (1990) & Shanti Vs State of Haryana (1991) 1 SCC 377 it was noted, "The complainant has to conclusively establish (i) There has been beating and harassment, (ii) The beating and harassment in question is with the view to compel her to commit suicide or to satisfy the dowry demand."

In Ashok Chottelal Shukla Vs State of Maharashtra 1987 Crl.LJ (Guj & Maha) 164 it was noted, "In the absence of evidence regarding demand of dowry, harassment in itself cannot and would not consitute "cruelty" within the meaning ofexplaination of (b) of section 498A"

This is my favorite, In Giridhar Shankar Tawade Vs State of Maharashtra (2002) 5 SCC 177: 2002 CriLJ 2814 it was noted by none other than Apex Court, "In order to justify a conviction under section 498A there must be available on record some material & cogent evidence." 

Thanks, this clarifies it. The 'textbook' definition and descripttion of Dowry Prohibition Act may mention that

Burden of Proof lies on him, but in the  hall of courts, proving facts is still chiefly complainant's responsibility.

So, the menace of 498a still lies in arresting the innocent without validating the complaint.

"8-A. Burden of proof in certain cases.- Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him."

The applicable law is S. 8A of the Dowry Prohibition Act which says:  Burden of proof in certain cases.- Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.

So, please do not look only into Evidence Act as S. 8A overrides IE Act and imposes "reverse burden" on the accused. You can safely ignore the other case law on IE Act. Look to the definition of the offence under DP Act and ask accused to disprove the allegations in the complaint.