Burden Of Proof

BURDEN OF PROOF (UNDER INDIAN EVIDENCE ACT 1872)

By J. Hey Prabhuramteja B.B.A., LL. B 121733201009

Case 1 K.M. Nanavati Vs State of Maharashtra1 Introduction: “ye raste h pyaar ke” starring sunil dutt, was the movie based on this murder trial. The basic crux of the case revolves around the fact that Nanavati murdered his wife’s lover, Prem Ahuja. Facts of the case: 1. Nanavati was a Naval commander in Mumbai who was married to a English lady slyvia. 2. Since Nanavati went on long voyages, his wife slyvia out of lonliness fell in love with nanvati’s friend Prem Ahuja. 3. Ahuja on the other hand promised that he would marry her. 4. On one fine day slyvia confessed her thoughts to her husband Nanavati out of sudden provocation went to search for Ahuja. 5. Then in between the exchange of words Nanavati fired bullets to Ahuja. 6. He was booked under section 302 of IPC Issues: 1. Whether the action of Nanavati was out of sudden provocation or a pre-planned murder? Judgement: It was during the trial where things of actual shades came out. Nanavati after meeting Ahuja asked for his intention to get married to Slyvia and accepting his children. When Ahuja passed a statement saying ‘ should i marry every woman i sleep with’, infuriated Nanavati and he shot him. He then went upto the police station and confessed his crime.

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1962 AIR 605 1962 SCR Supl. (1) 567

He was booked u/s 302 and imprisoned for 3 years, however Ahuja’s sister gave a written testimony of granting him pardon. He was then pardoned. CONCLUTION: In this case burden of proof is on Nanavati under Section 102 - On whom burden of proof lies

Case 2 Anil Rishi vs Gurbaksh Singh 2 Facts: An agreement to sell dated 26.03.1990 was entered into by and between the parties hereto in relation to the premises bearing House No. 86, situate in Sector 18A, Chandigarh. A sale deed was executed pursuant to the said agreement to sell on 27.03.1991. However, a suit for declaration was filed by the respondent herein alleging that the said sale deed dated 26.3.1991 was a forged, fabricated and was a void document. The appellant filed his written statement in the said suit denying or disputing the allegations contained therein. An application was filed by the respondent for deletion of the said issue and reframe the same. The learned trial Judge reframed the issue allowing the said application in terms of order dated 9.2.2005. Normally the initial burden of proving the execution of a document when it is denied must rest upon the person alleging its execution. Here in the present case the plaintiff has denied the execution of the sale deed. The onus to prove a issue has to be discharged affirmative. "It is always difficult to prove the same in negative". When the fact is proved in affirmative or evidence is led to prove the same. Onus shifts on the other side to negate the existence of such a fact. Issues: 1.Whether the sale deed dated 26.3.1991 is forged and fabricated as prayed for? 2.Whether the alleged sale deed dated 26.3.1991 is a valid and genuine document? Argument: In the present case, it is the case of the plaintiff- respondent that he had not executed any sale deed dated 26.3.1991 in favour of the defendant-appellant and it was a forged and fabricated document. On the other hand, it is the case of the defendant that the said sale deed is valid and genuine document. The sale deed itself is in possession of the defendant. Judgement: In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."

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(civil) 2413 of 2006

For the reasons aforementioned, the impugned judgment cannot be sustained. The order reframing the issue is set aside thus reviving the issue originally framed. The Trial Court will be free to frame any additional issue if it is felt necessary. Conclusion: Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of 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." The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.

CASE 3OUSEPH V. STATE OF KERALA.3 Facts: 1.According to the prosecution the contraband of 5 kilograms of dried ganja was seized from the room belonging to the appellant on 14-9-1990. 2.There is no evidence whatsoever to show that at the time of seizure. 3.All this alleged contraband by PW 2 Sub-Inspector of Police was sealed. It is the prosecution case itself that the said contraband was handed over to PW 5 Circle Inspector of Police on 17-9-1990. Even at that point of time there is no evidence to show that this contraband was sealed. 4.On the contrary it is the evidence of these two police officers that the same was not sealed, though they contended that it was kept in safe custody. It is the further case of the prosecution that they took the permission of the jurisdictional court on 13-10-1990 to take sample for the first time from the original stock of the contraband to send the same to the Chemical Examiner(But the same was sent only on 28-11-1990 nearly after a month the permission of the court was obtained. Till this stage the seized contraband was not kept in a sealed condition. The Chemical Examiner filed his report on 30-5-1991 who found that the sample sent to him was ganja, a contraband under the Act. The courts below accepting this fact and other evidence led by the prosecution have found it sufficient to base the conviction) Issues: Police has seized the 5 kgs of ganja in applient room the issue of the case is whether the applient was consuming or trading with that ganja according the NDPS act trading and consuming the ganja which is narcotic is an offence. Judgement: The High Court of Kerala at Ernakulam held that The appellant in this case was convicted by the Court of the Sessions Judge, Thodupuzha for offences punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs 25,000 and in default to undergo further imprisonment for a period of one year.

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Criminal Appeal No. 896 Of 1997

Case 4 4SATISH

VIVEKANAND SHUKLA VS THE STATE OF MAHARASHTRA

Facts : The deceased woman is subjected to cruelty and harassment by her husband , husband demanded dowry and assaulted her several times this is the reason for her commission of suicide at her parental house.realtionship was for some days but later she left matrimonial house and went to her parents and stayed there and had some conversations regarding to her matrimonial life with her sister via WhatsApp application so compliment was father of deceased women and filed FIR on the petitioner i.e. husband of the deceased women, and the said portioner had applied for the bail is granted ISSUES: 1.Whether 113B presumption to dowry death attract the women suicide 2.Hearsay evidence given by the women who is neighbour will be admissible ? ARGUMENTS: the learned advocate for the applicant submitted that the allegations is FIR are afterthought advocate the are no previous complaints the applicant booked tickets along with the victim to attend a marriage ceremony at their home town at U.P. which shows the relationship between the applicants and deceased for leaving the matrimonial home there is no independent evidence to support the prosecution case the suicide was committed at the parental home by the deceased 15 days after the victim left the home and in the investigation the phone of deceased was the conversation shows that the relation between deceased and applicant was good learned APP submitted that the victim was subjected to ill-treatment by accused within short span of time after the marriage the victim had committed suicide and same whats app conversation indicated relationship between applicant and the the deceased to ill-treatment. It is further submitted that the section 113-A of Indian evidence act attracts it presumption to cause death and it is therefore submitted that the application to bail should be rejected

JUDGEMENT: After perusing the charge sheet and the FIR it was observed by the court that the deceased committed suicide at her parental home and as per the submitted WhatsApp conversation nothing shown that there was demand of dowry and some of hearsay evidence were collected the neighbours stated that husband use to harass the deceased for the more dowry the investigation is completed and charge sheet is filed taking into consideration of aforesaid circumstances, the case for grant is made of bail is made out

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CRIMINAL BAIL APPLICATION NO. 1316 OF 2018

Case 5 Jarnail Singh vs Punjab State Power Corp Ltd And Ors5 FACTS: Jarnail Singh petitioner was working as Junior Engineer with Punjab State Electricity Board now Punjab State Power Corporation Limited. He retired from service on 31.3.2005. After his retirement, he was served with charge sheet dated 8.6.2005 wherein it was alleged that one Malkit Singh who is posted as LDC operation in Sub Division Nathuwala had applied for a 3 HP tubewell connection and that at the time of releasing of connection, the present petitioner, on the asking of the applicant that he has got some other land, released the connection in the land of one Kulwinder Singh son of Nachhattar Singh, without taking the proof of the ownership of the land, which is a violation of the rules and the regulations of the said Corporation. After the inquiry, initially, a 5% cut in the pension was imposed vide order dated 29.5.2007. Against the said order the petitioner preferred departmental appeal and approached the appellate authority seeking quashing of the punishment order but same was dismissed 1 of 4 vide order dated 6.11.2008. Aggrieved with both the orders, the petitioner approached this Court by filing CWP No.12270 of 2010, which was decided on 23.5.2011, wherein this Court set aside the said punishment order on the ground it is not a speaking order and also set aside the order dated 6.11.2008. However, liberty was given to the respondent to reconsider the matter and pass a speaking order in accordance with law. Now the respondents have passed a speaking order dated 28.7.2011 ISSUES: (1)Whether withholding or postponing the payment of pension or gratuity amount due to account of commutation of pension is permissible in law? (2)Whether the authorities could withhold or postpone the payment of retiral benefits? (3)Whether the Government can initiate or continue with the departmental enquiry long after the date of alleged lapse in spite of the fact that the officer had retired from service many years back? (4)Should the enquiry proceedings be quashed on the ground of long pendency alone? Argument: Learned counsel for the petitioner has argued that no pecuniary loss was caused to the department. Therefore, cut in the pension could not be imposed under Rule 2.2(b) of the Punjab Civil Services Rules, Volume II. I am of the view that under Rule 2.2(b), the punishment can be imposed for grave misconduct and in addition to that if some pecuniary loss is caused, recovery can also be effected. Recovery for causing pecuniary loss is in addition to the cut in the pension that can be permanent or

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CWP-8313-2014 (O&M)

temporary for a particular period. Here, in this case, no recovery is sought to be effected from the petitioner and only cut in the pension has been imposed.

Learned counsel for the petitioner has also relied upon Full Bench authority of this Court in the case of Dr.Ishar Singh vs. State of Punjab and another, 1994(3) RSJ 543. The perusal of the said authority 2 of 4 shows that in the said case However, the question as to whether a cut in the pension can be imposed only on the ground of pecuniary loss was not considered and decided. Learned counsel for the petitioner has also relied upon a Single Bench authority of this Court in the case of Wasdev Singh vs. State of Punjab, 1997(1) RSJ 740. In the said case, while applying the aforesaid authority of Full Bench, it was held that the recovery from the pension can only be made if pecuniary loss is caused. However, it was never discussed and decided that government has a right to impose permanent cut or cut for a particular period under Rule 2.2(b) and also recover the loss if it is found that some pecuniary loss was caused to the government. Therefore, the said authority is also not attracted in the present case. Judgement: In the case,there was grave misconduct on the part of the petitioner while working as Junior Engineer, therefore, punishment has been imposed. The grouse of the petitioner is that SDO of the department was also charge sheeted and he has been imposed a cut of 5% for two years, whereas in the case of the petitioner, it is permanent cut in pension. 3 of 4 I am of the view that the facts of the case qua the said SDO are different. Perusal of the order Annexure P8 shows that he was supervisory officer and on finding illegality, he had disconnected the connection. Therefore, there were mitigating circumstances to pass a different order. Therefore, petitioner cannot claim parity with the punishment order passed qua the said SDO. The said order is a well-reasoned and there is no ground to set aside the same.

CASE 6 PRATAP SINGH V. STATE OF U.P.AND OTHERS6 Facts: The elections, on the post of Pradhan of Gram Panchayat Sisana Pargana, Tehsil and District Baghpat, were held on 25.8.2005. The respondent no. 3-Paramjeet was declared elected with 1100 votes as against Shri Pratap Singh-writ petitioner with 1099 votes, with a margin of only one vote. Shri Pratap Singh filed an Election Petition No. 2:3 4/5 under section 12-c of up panchayat raj act, 1947 (in short the act), alleging corrupt practices and gross irregularities in counting of votes. It was stated in the election petition that Shri Nrapjeet Singh, real brother of Shri Paramjeet Singh, returned candidate is working in Bhagpat Sugar Mill, where the counting took place, and the returning officer and the other employees on the election duties were the employees of Ganna Vikas Samiti. They caused undue influence in the elections. The counting rooms were changed. In substance, it was contended that according to the statements of presiding officer, a total number of 3303 votes were cast out of 3735 electors in the electoral list at the time of counting. However 3292 votes were found out of which election petitioner secured 1099, Shri Paramjeet Singh-opposite party No. 1, 1100 votes; Shri Jagdish-opposite party no. 2, 925 and Shri Paresh- opposite party no. 3, 40 votes, and 129 votes were declared invalid. Initially election petitioner was declared elected with 26 votes but the results were not declared. Then he was declared to be elected with 16 votes. Once again the election results were stopped. On the third occasion, he was declared to be elected with 10 votes and once again the results were not declared and thereafter the opposite party No. 1 was declared to be elected with one vote. In paragraph-7 of the election petition, it was stated that there was a difference of 10 votes. ISSUES: 1.Issue Nos. 1 and 3, with the finding that there was no denial of the fact that in the elections 3303 votes were cast in the ballot box, whereas 3293 were counted, including 3164 valid votes with 129 invalid votes. 2.On issue No. 2, she held that according to the election results in Schedule-6, election petitioner was found to have secured 1100 votes and opposite party No. 1-Paramjeet 925 votes; 40 votes were cast in favour of Paresh and 129 votes were declared invalid. ARGUMENT: . Shri B.D. Mandhyan, Senior Advocate, appearing for the petitioner submits that there was specific pleadings making allegations and giving material particulars proved by evidence on record to show that there were serious irregularities in counting of votes, which was effected by the presence of Shri Nrapjeet Singh the brother of the returned candidate along with the staff of the sugar mill. Shri Nrapjeet Singh was working in the sugar mill, and that his fellow

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(CRIMINAL) NO.7021 OF 2007

workers were involved in counting. It was established that 3303 votes were put in the ballot box whereas only 3293 votes were counted. The election petitioner was initially declared elected with 26 votes; thereafter by 16 votes and then by 10 votes but was still declared defeated with one vote. Shri B.D. Mandhyan has relied upon a judgement of this Court in Smt. Vibha Sharma vs. Smt. Saroj and others (1997) 1 UPLBEC 500 in submitting that narrow margin of votes would not by itself justify recounting but this is a fact which can be taken into consideration while deciding whether to order a recount. In Bhagauti vs. State of UP 2005 (1) AWC 732 it was held that where there is narrow margin of one vote and there was sufficient pleading in coming to the conclusion that irregularity was committed in counting of ballot papers, the direction for recount does not suffer from legal infirmity. In Sobh Nath vs. State of UP, 1999 (1) AWC 451 the same view was taken in a matter where there was difference of only two votes, and in Reeta Yadav vs. State of UP , 2007 (8) ADJ 710 where there was margin of only seven votes, the court relied upon Ram Aadhar Singh vs. District Judge 1985 UPLBEC 317, in which a Full Bench of this Court held that inspection of ballot papers for recount is provided only if conditions laid down in that judgement were satisfied. Similar view was taken in Ashok vs. Additional District Judge with, Varanasi 2004 (96) RD 482 in which it was held that there are specific and categorical pleadings supported by oral evidence recount could be directed. Judgement: It is true that a recount is not to be ordered merely for the asking or merely because the Court is inclined to hold a re-count. In order to protect the secrecy of ballots the Court would permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to." There was no evidence or material on the record except the statement of the election petitioner that 3303 electors had exercised their right to vote. The finding is not based on the perusal of the election record or the counting of the counter foils. All the plaintiff witnesses stated that according to the statement of the presiding officer, 3303 votes were cast. The presiding officer was not examined. There was no such admission by the returned candidate in the written statement or in his oral statement that 3303 electors had exercised their right of votes and had actually put their votes on the ballot box. The findings recorded by the election tribunal as such

were erroneous and were not based upon any relevant material or admissible evidence on record. With regard to the corrupt practices by brother of the returned candidate and the persons of the Sugar Mill, who were engaged in the election duties and counting, there is no specific pleadings or proof of the method and manner in which they had influenced the elections or the counting. The election petition and the evidence led by petitioner did not suggest as to how and in what manner the election was influenced or induced by their presence. The order, directing recount was not a valid order passed in accordance with the law and consequence recount of the votes will not benefit the election petitioner. The Supreme Court in V.S. Achuthanandan (supra) has held that where the order of recount is not valid, the result thereafter would not be available to decide the election petition. The writ petition is dismissed. Interim order is discharged.

Case 7 Mahaboob Sab & Another v/s Union of India7 Facts: One Mr. Shahnawaz was said to have been travelling in Train bearing No.1014 as a bona fide passenger and on the fateful day viz., on 3.9.2003 he is said to have fallen down from a moving Train on account of heavy jerk and suffered multiple injuries and was shifted to Victoria Hospital for treatment and on account of the injuries sustained and medical treatment extended to said Shahnawaz did not save his life and ultimately, on 6.9.2003 he is said to have succumbed to injuries sustained in accident. ISSUES: (i) Whether the applicant proves that the deceased Shahnawaz while travelling by Train No. Argument: On account of death of said Shahnawaz his parents i.e., appellants herein filed a claim petition under Section 16 of the Railways Act, 1989 claiming compensation for death caused in train accident in a sum of Rs.4,00,000/-. On filing of complaint before Railway Claims Tribunal, Bangalore, same came to be registered as O.A.No.6/2004 by Railway Claims Tribunal, Bangalore Bench and notice was issued to respondent. Judgement: Court held that, Respondent filed a detailed Statement of objections contending that accident in question does not attract the definition of the word ?untoward incident? as defined under Section 123(c) of the Railways Act, 1989 and it was contended that claimants were not entitled to claim compensation under Section 124A of the Railways Act, 1989. Having denied entire averments made in claim petition, respondent sought for dismissal of claim petition.

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Appeal No.14904 of 2007 (GM-CPC)