burden and onus

8/8/2019 Burden and Onus

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Souvik Chatterji


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Initial Burden on one who takes affirmative

of the issuey Aparty who wishes the court to give a judgement on the existence of a

fact should prove the fact.y K. Prasad v. G.Prasad, A.I.R. 2001 Pat. 1 Aperson who questions a gift

deed on the ground of fraud has to prove that fact. In this case the legal

heirs who would have otherwise inherited the donated propertyquestioned it.

y Where a landlord seeks eviction on the ground of bonafide personalneed, burden lies upon him to establish that he is genuinely in need ofaccommodation. S. Benezer v. Velayudhan, A.I.R. 1998 S.C. 746.


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Onus and Burdeny Burden of proof lie on the person who has to prove a fact and it never

shifts.y Onus of proof shifts and it includes assertion of a proposition or fact

which is not self-evidenty R. Somabhai v. Babubhai, AIR 1982 Guj. 308 Burden of proof as a

matter on law and pleadings never shifts (section 101 whoever desiresany Court to give judgement as to any legal right or liability dependanton the existence of facts which he asserts, must prove that those factsexists).

y Onus of proof as a matter of adducing evidence shifts (section 102 the

burden of proof in a suit or proceeding lies on that person who wouldfail if no evidence at all were given on either side).


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somebody other than the tenant was using

the premises. The landlord had discharged

his initial burden.


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Civil Cases and preponderance of

probabilityy The presumption of sub-letting arises when the

premises are used by other persons other than

tenant.y Atenant will not allow anyone else to stay within

the premises without consideration.

y The burden shifts on the tenant to show whetherthe premises are sub-let or not.


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Section 105 Ind. Evidence Act.yWhen a person is accused of any offence, the

burden of proving the existence of circumstancesbringing the case within any general exceptions in

IPC or special exception or proviso of IPC is uponhim and the court shall presume the absence ofsuch circumstances.

y Section 105 does not indicate the nature and

standard of proof required.


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Section 105, continuedy The Evidence Act does not contemplate that the accused should prove

his case with the same strictness and vigour as a prosecution is requiredto prove in a criminal charge.

y V. Subhramani v. State ofTamil Nadu, AIR 2005 SC 1983 the accused

can discharge the burden of proving right of private defence byshowing the preponderance of probabilities.

y Shah Guman Mal v. State ofAP, AIR 1980 SC 793 the accused wasprosecuted for possession of smuggled gold under the CustomsAct.


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Case continued.y The accused admitted that it was a foreign metal

and that it was delivered to him by a certain personwhose identity he failed to disclose.y It was held that the accused knew who that person

was and whether he had any license and burdenlay upon him.

y From his refusal a presumption arose under

section 114 that the matters were against him.


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Defense can raise reasonable doubt in

the minds of the Courty In criminal cases the defendant is not always

required to prove the fact beyond reasonabledoubt, raising reasonable doubt is enough.

y Following a serious dispute with his workers, theowner was on way back home by a jeep. Suddenlyhe saw two of his workers raising their hands tostop the jeep.

y

They then tried to follow and close in on the jeep.


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The case continuedy In the apprehension that that they might harm, the

accused shot at them and they died.y The Supreme Court held that the evidence on record did

not establish that the jeep was pelted with stones anddamaged, but it established a reasonable possibility of theapprehension of personal harm.

y The circumstances justified the exercise of private defence,but the limit was exceeded. M. Ramzani v. State of Delhi,AIR 1980 SC 1341.


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Burden of proof of death of

persony Section 107- When the question is whether a man is alive or

dead, and it is shown that he was alive within thirty years,the burden of proving that he is dead is on the person who

affirms it.y In R v. Lumley, 1869 LR 1 CCR 196, the prisoner, a woman

was prosecuted for bigamy. She married a man in 1836, lefthim after seven years in 1843 and married another in 1847.

y Nothing was heard of her first husband after she left him.


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Case continuedy The prosecution gave no evidence of his age, or of the fact that he was

alive.y But the judge felt that just because he was alive for four years before the

marriage, there was the presumption that he was still alive and

consequently the prisoner was convicted.y OnAppeal, the conviction was quashed. In an indictment for bigamy, it

is incumbent on the part of the prosecution to prove that the husbandor wife was alive at the date of the second marriage.

y The existence of the party at the antecedent date may not afford areasonable inference that he is living at the subsequent date.

y The law makes no presumption either way.


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Burden of proving that a person is alive

who has not been heard of for 7 yearsy Section 108 the burden is on the person who

affirms it.y M Sharif v. Bande Ali, ILR, 1911, 34 All. 36, M

mortgaged certain property to the defendant in1890. Thereafter he disappeared and nothing washeard of him again.

y He had no heir.

y His brother D, who should have inherited theproperty, died about 14 years after Msdisappearance.


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Case contiuedy The heirs of D filed a suit for redemption of the mortgage

and contended that as M disappeared 18 years ago, he mustbe presumed to have been dead for last 11 years, and D who

was alive till a later date, must be deemed to havesucceeded him as a heir.

y The Court held that there is no presumption that M died inthe first 7 years or in the last 7 years. The presumptionmerely is that he was dead.


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Proof of good faith in

transactions.y Section 111- where one party is in relation of active

confidence the burden of proving the good faith ison him.

y Daya Shankar v. Bachi, AIR 1982 All. 376 Theplaintiffs uncle, being childless, used to treat theplaintiff as his own son.

y He was eighty years old.

yWhen he became sick the plaintiff admitted himinto a railway hospital.

When he became sick, the plaintiff admitted


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Case continuedy Within 8 days he executed a gift deed of his house in favour

of the plaintiff.

y After a month his other heirs obtained another gift deed

favouring them.y He died 6 months later.

y The court laid down that the deed in favour of the plaintiffwas executed in abnormal circumstances.

yThe burden of proving good faith was cast upon him whichhe did not discharge.

y The deed of gift was set aside.


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Birth during marriage, conclusive proof

of legitimacyy Essential conditions for the presumption of legitimacy

(section 112, Ind. Evid. Act)

y The child should have been born during the continuance of

a valid marriage, or if the marriage was dissolved, within280 days after dissolution, the mother remainingunmarried.

y The parties to the marriage should have had access to eachother at any time when the child could have been begotten.


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Access or non-access must be proved

satisfactorilyy C. Venkateshwaralu v. Venkatanarayana, AIR 1954 SC 176.

y In this case the husband tried to show that he had providedseparate residence to his wife and never visited her.

y The wife alleged that the husband used to frequently visither.

y The husband was unable to prove his non-access and thechild born by the wife was presumed to be a legitimate

child.


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Gautam Kundu v. State of

West Bengaly Gautam Kundu case, (1993) 3 SCC 418.y The criminal law standard of proof beyond

reasonable doubt could not be applied because itwould create the risk of many a children beingrendered homeless.

y The court considers that very rarely in Indiansociety a lady with children would claim that she is

the wife of a person who is not her husband.


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Goutam Kundu Case continuedy The Supreme Court held that Courts in India cannot order blood test as

a matter of course.y There must be a strong prima facie case in that the husband must

establish non-access in order to dispel the presumption arising u/s 112.y The Court must carefully examine as to what would be the consequence

of ordering the blood test; whether it will have the effect of branding achild as bastard and the mother as an unchaste woman.

y No one can be compelled to give sample of blood for analysis.


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Blood Group Testy The Courts do not order any body to submit

himself for blood group test.y No one can be compelled to give sample of blood

for analysis.yWhere the presumed father of the child prayed for

blood test for the purpose of denying legitimacyand liability to maintenance, his prayer was not

accepted. Gautam Kundu v. State of West Bengal,AIR 1993 SC 2295.


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DNA Testy Kanchan Bedi v. Gurpreet Singh, AIR 2003 Delhi 446.y In an application for grant of maintenance to a minor child,

the alleged father denied his parentage.

y He showed no concern for the minor child.y The Court directed him to submit to DNAtest.y The Court said that there was no violation of a persons

rights in directing him to take the test particularly when achilds right to maintenance was involved.


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Section 114 Court may presume

existence of certain facts.y The Court may presume that a man, in possession of stolen

goods is either a thief, or has received the goods knowingthem to have been stolen.

yAn accomplice is unworthy of credit, unless he iscorroborated in material particulars.

y Abill of exchange was accepted or endorsed for goodconsideration.

y That evidence which could be and is not produced would,

if produced be unfavourable to the person who withholdsit.


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Presumption of human conducty Moti v. State of UP (AIR 2003 SC 1897) In a case involving the murder

of her husband, the wife of the deceased stated that the incidentoccurred after she cooked dinner and served the same to her father andhusband whereas the mother-in-law of the deceased stated that the

dinner was not cooked when the incident occurred.y The Court presumed that in a village where there is no electricity, the

villagers after finishing their work normally have their meals early.y It was held that the evidence of the wife even after being contradicted,

was worthy of acceptance.


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Conclusive Proofy There are three cases where conclusive presumption may be drawn,

they are sections 41(judgements in rem relating to probate, admiralty,matrimonial and insolvency jurisdiction), 112 (legitimacy) and 113(cessation of territory).

y In these cases enquiry is altogether excluded.y It is undesirable to enquire into the paternity of the child whose

parents have access to each other.y In Kanti Devi v. Poshi Ram, AIR 2001 SC 2226, the Supreme Court held

that even a DNAtest that indicated that the person is not the father ofthe child would not be enough to rebut the conclusiveness of marriage

as proof of legitimacy of child


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Incapability of husbandy C. Kutty v. Subhramainan, AIR 1987 Ker. 5,y The parties married in 1967.y The husband underwent vasectomy operation on 8.01.1976.y Both were living together and the wife gave birth to a child

on 30. 8. 1978.y The husband disputed the paternity of the child but failed

to prove that when the child was conceived he was unableto procreate.

y The Court presumed the child to be legitimate.


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Withholding Evidence

{IIlustration (g)}y Tulasa Priya v. A.P. State Council Of Higher Education,

(1998) 6 SCC 284

y In an admission test to medical colleges, a candidate was

given wrong type of answer- book which was replaced by acorrect one after sometime.

y The candidate only attempted 170 questions out of 200 andgot 94.555% marks.

y

She said that her answer book should be assessed on thebasis of 170 questions.


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Case continuedy The examination authorities alleged that the right type of

answer book was supplied to her without any loss of time.

y The candidate requested that her first answer book should

be produced to assess the loss of time which theAuthorities failed to do.

y An adverse inference was drawn that against them that ifthe same was produced that would have substantiated hrversion.


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Effect of non-production of

witnessy State v. Abdul Aziz, ILR (1971) 21 Raj 209y The following factors should be considered.y Whether the witness is in a position to give relevant and

material evidence.y Whether witness is within easy reach of the prosecution or

defencey The nature and intensity of the controversy raised by the

defence on which the witness is supposed to testify

y Persuasiveness of the evidence which is on the record


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It is not necessary to examine all the

possible witnessesy A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534y In a matrimonial dispute both the husband and the wife were doctors

serving in the same hospital.y The wife made allegations of adultery with the nursing staff against her

husbandy The husband did not examine any witness from the hospital staff to

rebut the allegations.y High Court drew an adverse inference against the husbandy Supreme Court held that the High Court erred in doing so without

discussing the sufficiency of other evidence to sustain the allegation of

cruelty by the husband against the wife.


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Withholding of documents

(civil)y GK Srivastav v. State of Bihar (AIR 2005 SC 3123)

y Apublic servant accused of accepting bribe claimed to

be on leave on the relevant day.y He failed to produce the casual leave register of the

department


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Case continuedy He produced the application made for casual leave on that

particular date and he had examined an officer of thedepartment as witness to prove the absence on that date.

y An adverse inference was drawn against him for non-production of the said register.

y The Supreme Court held that there was no reason todiscard his application for casual leave and the evidence ofthe departmental officer and the Courts below erred indrawing an adverse inference against him.


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Estoppely Section 115 When one person has, by his declaration, act or omission,

intentionally caused or permitted another person to believe a thing tobe true and to act upon such belief neither he nor his representativeshall be allowed to deny the truth of the thing in a suit or proceeding.

y Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553, property was soldbyApretending to be the owner when he was not the owner.y Subsequently he became the owner of the property by succession and

wanted to avoid the sale on the ground of his lack of title at that time.y He was held to be estopped from doing so.


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Representationy Sarat Chunder Dey v. Gopal Chander Laha, (1891-92) 19 IA203.y Amuslim died leaving a wife, son and daughter.y The property was in the wifes possession.y She claimed to have gift deed of her husband in her favour which was

invalid.y She mortgaged the property and the mortgagees interest was

purchased by the defendant Sarat Chander.y Subsequently the son and daughter sold their shares in the property to

Gopal Chunder.y Gopal Chunder sued to recover possession of the property from

mortgagee Sarat Chunder.


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Case continued.y The defendant claimed an estoppel against him.y The mother had no right to mortgage the share of property of the son and the

daughter and it was void.y The defendant claimed that the son and the daughter should not be permitted

to say the mortgage is void.y They had allowed the mother to be in possession and the son acted on her

behalf in executing the mortgage.y That was a representation that the mother had the right of the mortgage.y The mortgagee acted on the representation.y The Privy Council held that the son and plaintiff were estopped but there was

no estoppel against the daughter.


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Section 41 TP Acty Principle of section 41 ofTP Act is similar to principle of section 115 of

Ind. Evid. Act.y When an owner transfers property with apparent ownership and right

of disposition thereof, he would be estopped from claiming the title

against a person to whom the original transferee disposed of theproperty and who took it in good faith and for consideration.y B. D. Chakravarty v. N.C. Pal, ILR (1901) 29 Cal 306.y In 1894 the appellant agreed in writing to give the respondent a lease of

a plot of land for the purpose of erecting buildings from year to year atan annual rent of Rs180.


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Case contd.y The respondent took possession.y In 1903 he wished to build a pucca house upon the land and

in answer to inquiries the appellant wrote a letter stating

that the lease is a permanent lease though the rent wasliable to enhancement.y Acting upon that letter the respondent build the house.y The appellant knew of the building and received a bonus in

respect of ity

In 1916 the appellant sued to eject the respondent from theland.


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Case continued.y It was held that whether or not the letting was a

permanent one upon the construction of the

agreement, the statement in the letter was therepresentation of fact and the appellant wasestopped from denying that the letting was of thatcharacter though subject to enhancement of rent.


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Estoppel of tenant and licenseey Section 116 Estoppel of tenant binds him till he is in possession.y Atenant is not permitted to deny the title of his landlord. An estoppel

arises as soon as the relationship of landlord and tenant is created.y Harbans Singh v. Tekamani Devi, AIR 1990 Pat. 26 The tenant after

having accepted the landlord, cannot afterwards say that he was notentitled to grant the tenancy.

y TheTenant is free on the expiry of the tenancy to question the title ofthe landlord.


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Inadmissible statements and

discoveryy R. v.Warickshall, (1783) 1 Leach 263 Whether a confession is

admissible or inadmissible, any fact, the knowledge of which has beenobtained through it, may still be proved by the prosecution.Alsomentioned in Kuruma v. R, (1955) AC 197.

y

R. v. Sadler, (1970) 2 All ER 12 The rules regarding confession andadmission have no application to the discovery of material evidencewhich has itself probative value.

y Emperor v. Ganu Chandra Kashid, (931) 34 Bom LR 303. Where theacused states to the police, I will produce the share which I received insuch a and such dacoity the statement is divisibe into the followingparts.


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Section 27 Ind. Ev. Acty (1) an admission that there was dacoity,

y (2) an admission that the accused took part in it,

y (3) and admission that he got part of the property,

y (4) a statement as to where the property is,

y The first 3 parts are not admissible in evidence, havingregard to the provisions of Ind. Ev. Act, but the 4th part isadmissible.


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Section 136y Party seeking to put a document in evidence must show

under which section it is admissible.y Section 141 Any question suggesting the answer which the

person putting it wishes or expects to receive is called aleading question.y The prohibition of putting leading questions in

examination in- chief and re-examination is not absolute.The Court may allow it under Order XVIII, Rule 11, CPC.


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Leading Questionsy Section 143 Leading question may be asked in cross-examination.y LP v. Inspector General of Police, (1954) All LJ 316 The reason why

leading questions are allowed to be put to an adverse witness in cross-examination is that the purpose of a cross-examination being to test

the accuracy, credibility and general value of evidence given, itsometimes becomes necessary for a party to put leading questions inorder to elicit facts in support of his case, even though it may beentirely unconnected with facts testified to in an examination-in-chief.


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Section 145y Awitness may be cross-examined as to any statements as to relevant facts made

by him on a former occasion, in writing, without showing the writing to him orproving the same.

y Md. Abdul Azeez v. State ofAP, 2003 CrLJ 4410 In a proceeding u/s 498AofIPC against husband instituted by the wife, the wife alleged that the husbandpressurised her to bring money from her parents for construction of additionalaccommodation.

y Certified copy of the deposition of the complainant filed by her in earliermaintenance case, cannot be used in evidence in view of section 145 Ind. Evi.Act, as omission of said allegation in maintenance case cannot be used for thepurpose of contradiction since matter of demand of money was irrelevant insaid maintenance proceeding.


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Section 146y Witness can be asked questions to test his veracity, or to discover who he is, or

to shake his credit.y As long as the cross-examiner confines his questions to the points of testing

veracity of a witness or discovering the status in life, there seem to be ny

o limits to his power of putting questions.y The moment he undertakes the task of impeaching the character of thewitness, section 147 to 150 protect the witness and impose restraints uponassertions levelled against him.

y Deb Narayan Halder v. Anushree Halder, AIR 2003 SC 3174 In a proceeding formaintenance by the wife, the cross-examining counsel made a suggestion of tothe witness, the landlady, produced by the husband.


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Case continuedy The suggestion was that the husband he was in love with

her daughter-in-law and that is why he used to go herhouse which was stoutly denied by the witness.

y

It was held that putting such a question to the witness,when there was no such complaint in the application andthe respondent side had stated nothing to this effect,should not have been permitted, particularly when itreflected not only on the character of the husband but alsoon another lady who was not a party to the proceedings.


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Section 148y The section deals with the exercise of discretion of the

court, while deciding whether a witness should becompelled to answer a question in cross-examination or

not.y Rex v. Clarke, (1817)2 Stark 41 On an indictment for rape,

or for an indecent assault, the prosecutrix cannot be askedin cross-examination whether she had connection withanother person not the accused, and if she denies it,

evidence cannot be called to contradict her.


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Section 149y The questions which are contemplated under section 148, ought not to

be asked unless the person asking the question has reasonable groundfor thinking that the imputation which it conveys is well founded.

y Deepchand v. Sampathraj, 1970 CrLJ 260 Defamatory questions were

put by the lawyer to a witness in cross-examination, on the clientsinstructions and the imputation conveyed by those questions were perse defamatory.

y It was held that there was no reasonable basis for putting thosequestions and the client was liable under section 500 IPC, though thelawyer could take protection under the 9th exception to section 499,IPC.


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Section 150y If the Court is of opinion that any question was asked without reasonable

grounds, it may report the circumstances of the case to the High Court or otherAuthority to which the barrister, pleader, vakil, or attorney who asked thequestions is subject in the exercise of his profession.

y Section 151 Indecent and scandalous questions are not allowed by the Courtunless they relate to facts in issue.

y State of UP v. Raghubir Singh (1997) 3 SCC 775 The fact in issue was notconcerning the paternity of a child rather it was concerned with the issuewhether the child /son was kidnapped by the accused and murdered. It washeld that the Court should not have allowed indecent and scandalousimputations on the moral character of the witness, the mother of the victim.


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Section 152y The section empowers the Court to forbid question which appears to it

to be intended to insult or annoy, or which, though proper in itself,appears to the Court needlessly offensive in form.

y Fatima Rizwana v. State, (2005) 1 SCC 582 In a case concerning

commission of offenses relating to pornographic materials, evidencesas to the subject-matter which could cause embarassment to the ladywitnesses/ accused , etc., the Supreme Court held that PresidingOfficer could make adjustments, arrangements in the procedure so asto minimise embarassment to himself/ herself and the witnesses.


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Section 155y The credit of a witness may be impeached by the adverse party, or the

party who calls him, (a) by the evidence of persons who testify thatthey believe him to be unworthy of credit,

y (b) by proof that the witness has been bribed,

y (c ) by proof of former statements inconsistent with any part of hisevidence which is liable to be contradicted.y Dinkar Bandhu Deshmukh v. State AIR 1970 Bom 438 Opinion

evidence, as a general rule is not admissible. Section 155(1) is anexception to that rule. To draw an inference against the credibility of a

witness without anybody going into the witness-box in the mannercontemplated by secton 155 (1) would not be legitimate.


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Rama Reddy v. VV Giriy Rama Reddy v. VV Giri, AIR 1971 SC 1162 Even tape

recorded evidence can be used for the inferenceagainst the credibility of a witness, although the

standard of proof differs as it falls under the categoryof documentary evidence.

burden and onus

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