Author: Deeksha Gupta


Doctrine of Burden of Proof is an indispensable part of any criminal justice system. Burden of Proof means an obligation of a party to a case to prove a fact. In other terms, in any issue, if the party on whom the burden of proof lies fails to discharge that burden i.e. to give evidence to prove facts in his favor, the issue will be found against him. There are basically two types of burden of proof:

  1. burden to prove a fact on pleadings.
  2. burden to adduce evidence related to a fact or to prove a fact

Burden To Prove A Fact On Pleadings 

Section 101 of the Indian Evidence Act deals with the first type of burden of proof and provides for general rule of burden of proof in a sense that a party who asserts a fact must prove that fact. The burden of proof to prove a fact always remains on the party who put forwards that fact in his pleading and this burden never shifts. The importance of proper discharge of burden of proof can be inferred by the judgment of the court in the case of Rangammal v Kuppuswami[1], in which the court held that if the burden of proof is placed on wrong party, the judgment of court is vitiated.

In criminal cases, it is a general principle that burden of proof lies on the prosecution. This principle is based on another fundamental principle of criminal justice system that a person is presumed to be innocent until proven guilty. In Jarnail Singh v State of Punjab[2] Supreme Court observed that in criminal cases, if the prosecution fails to adduce evidence in its favor, it cannot rely upon the evidence adduced by the accused in his defence. The burden of proof always rests upon the prosecution.

Burden To Adduce Evidence

Section 102 deals with the burden to adduce evidence and provides that in a suit or proceeding, the burden of proof lies on that person who would fail if no evidence at all is given on either side. This burden constantly shifts during the trial depending upon the various stages of trial.

Other Principles Related To Burden Of Proof

Burden To Prove A Particular Fact 

According to section 103, burden of proof of any particular fact lies on the person who asserts that fact. The difference between section 101 and 103 is that section 101 talks about burden of proof as to whole of facts in a suit or proceeding whereas section 103 talks about a particular fact only and not the whole of the facts. For example, if an accused raises the plea that at the time of commission of offence he was out of the town, the burden of proof to prove such fact rest on him. But, for all other facts of the case, the burden of proof still rest upon prosecution.

Burden To Prove That The Case Of Accused Comes Within Exceptions

According to section 105 of Indian Evidence act, whenever a person is accused of committing an offence, the burden of proof to prove the existence of the facts to bring his case under one of the exceptions provided by the Indian Penal Code or any other legislation defining the offence, rests upon him and the court shall presume the absence of such circumstances.

This burden on the accused can be discharged by him through preponderance of probabilities and not beyond reasonable doubt.

Also, it is not necessary that the accused raises his plea specifically or adduce evidence in support of his plea directly. He may rely upon the case of prosecution or may introduce his plea through cross examination or can even rely upon the probabilities.

If on the examination of material on record, the accused is successful in raising a doubt in the minds of the court, he must be given the benefit of that doubt.[3]In Chhotanney v State of UP[4] the court discussed the meaning of the term “reasonable doubt”. According to the court, a reasonable doubt is not an imaginary, trivial or a merely possible doubt but a fair doubt based upon reasons and common sense. Doubts must be actual and substantial, arising out of evidences adduced or due to lack of it and not a mere apprehension.

Power Of Court To Presume Certain Facts

According to section 114 of the Indian Evidence Act, the court may presume certain facts after having regards to the common course of natural events, human conduct, public and private business, in relation to a particular case. The discretion given to the court under this section is wide enough to cover instances not only explicitly provided but also all similar cases.

Similarities And Differences Between Doctrine Of Burden Of Proof Of India And Other Countries

Doctrine Of Burden Of Proof In Civil And Common Law Countries

Doctrine of burden of proof differs according to the legal system the country belongs to. For example, if we see the standard of proof as required in civil cases, in common law countries, the standard of proof is preponderance of probabilities, whereas in civil law countries the standard of proof is proof beyond reasonable doubt. However, on the criminal side, the standard of proof is almost same in practice. But, in theory, the civil law countries apply a comparatively higher standard of proof than the common law countries, what is commonly known as une intime conviction or personal conviction of the judge.[5]

India comes under the category of common law countries where we have standard of preponderance of probabilities for civil cases and proof beyond reasonable doubt for criminal cases.

Burden Of Proof In United States

In USA, there are three levels of standard of proof, namely: preponderance of evidence, clear and convincing evidence and beyond reasonable doubt.

In United States, preponderance of the evidence or balance of probabilities is the standard of proof in civil cases. Also, this is the standard of proof in case the accused has to prove the existence of facts to bring his case within one of the exceptions in any civil or criminal suit or proceeding. The burden of proof is said to be discharged in this case of it is proved that the existence or non-existence of a fact i.e. any proposition is more likely to be true than false. In Miller v Minister of Pensions[6] Lord Denning held that preponderance of evidence means “more probable than not”.

Clear and convincing evidence is a one step higher standard of proof than preponderance of evidence. It means that the party presenting the evidence must have firm and substantial belief in its veracity. It is used in many equity cases, civil as well as criminal procedures, some of the examples being cases involving the issue of paternity of child, child custody, juvenile delinquency etc.[7]

Proof reasonable doubt is the highest standard of proof in the American legal system and is applied basically in criminal cases. In order to discharge this burden of proof, the evidence must be adduced in a manner so that there is no plausible reason to believe otherwise. In this case there should not be any reasonable doubt in the mind of the court as to the truthfulness of the evidence and if the defence is able to raise a reasonable doubt in the minds of the court, he is entitled for the benefit of doubt.[8] 

Burden Of Proof In United Kingdom

In United Kingdom, there are only two standards of proof, namely proof beyond reasonable doubt which is basically applied in criminal cases and balance of probabilities which is applied in civil cases (and in the case of plea of any exception has been taken by the accused in a criminal proceeding).

Earlier, there was a confusion as to the existence of an intermediary standard of proof, known as “heightened standard”, but In re B (A Child)[9] The House of Lord negated the existence of such a standard of proof and asserted the existence of only two kinds of standards in the whole legal system.

India follows the system of UK, i.e. we have two standards of proof in our legal system i.e. proof beyond reasonable doubt (for criminal cases) and preponderance of probabilities (for civil cases). We don’t have the concept of an intermediary standard like that of United States of America.


Indian Evidence Act was an outcome of British endeavor in India to codify the various laws. Indian Evidence act was drafted by Sir JF Stephens and his excellence cannot be compared with anyone else. This is the reason that this act has been able to adapt to the differing needs of our country. Its suitability can be gauged from the fact that law commission has many times suggested various amendments but has never suggested any change in the core principles of the statute. Same goes with the doctrine of burden of proof provided under the statute. The doctrine has been able to satisfy the needs of our legal system and has never led to any dissatisfactory result. Consequently, there seems no need to change the basic tenants of the doctrine of burden of proof as embodied in the Indian evidence act.

[1]Rangammal v Kuppuswami AIR 2011 SC 2344.

[2]Jarnail Singh v State of Punjab AIR 1996 SC 755.

[3]Vijayee Singh v State of UP AIR 1990 SC 1459.

[4]Chhotanney v State of UP AIR 2009 SC 2013.

[5]Clermont, Kevin M., and Emily Sherwin. “A Comparative View of Standards of Proof.” The American Journal of Comparative Law, vol. 50, no. 2, 2002, pp. 243–275. JSTOR, JSTOR,

[6]Miller v Minister of Pensions [1947] 2 All ER 372.

[7]Clermont, Kevin M., and Emily Sherwin. “A Comparative View of Standards of Proof.” The American Journal of Comparative Law, vol. 50, no. 2, 2002, pp. 243–275. JSTOR, JSTOR,

[8]Green v The Queen [1971] HCA 55.

[9]In re B (A Child) [2008] UKHL 35.

About the Author: Deeksha is a third-year student at Dr Ram Manohar Lohia National Law University, Lucknow.

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