Evidence Project

LAW OF EVIDENCE

BURDEN OF PROOF IN CRIMINAL CASES (COVERING SECTION 101 TO 114 OF THE INDIAN EVIDENCE ACT, 1872.)

SUBMITTED TO:

SUBMITTED BY:

DR. SABINA SALIM

VIKAS DENIA

236/15 SECTION D B.COM LLB (HONS.) SEMESTER 7

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LAW OF EVIDENCE ACKNOWLEDGMENT

Success is an effort bounded activity that involves co-operation of all. I hereby take the opportunity to express my profound sense of gratitude and reverence to all those who have helped and encouraged me towards successful completion of the project report. It has been great experience working on the topic “BURDEN OF PROOF (SECTIONS – 101-114)”.

I would like to thank my project guide Dr. Sabina Salim for her immense guidance, valuable help and the opportunity provided to me to complete the project under her guidance. Vikas Denia

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LAW OF EVIDENCE TABLE OF CONTENTS

Table of Cases ................................................................................................................................................ 4 Burden of Proof ............................................................................................................................................. 6 Introduction: - ............................................................................................................................................ 6 What Actually Evidence Is? ...................................................................................................................... 6 Statutory Provisions Under Indian Evidence Act, 1872: - ........................................................................ 7 Section 101: - Burden of Proof. ............................................................................................................ 7 Section 102: - On whom burden of proof lies. – ................................................................................... 8 Section 103: - Burden of proof as to particular fact. – .......................................................................... 9 Section 104: - Burden of proving fact to be proved to make evidences admissible.............................10 Section 105: - Burden of proving that case of accused comes within exceptions. –…………………10 Section 106: - Burden of proving fact especially within knowledge. –………………………………12 Section 107: - Burden of proving death of a person known to have been alive within thirty years……….13 Section 108: - Burden of proving that person is alive who has not been heard of for seven years……......14 Section 109: - Burden of proof as to relationship in the cases of partners, landlord and tenant, principal

and agent. – ......................................................................................................................................... 15 Section 110: - Burden of proof as to ownership. – ............................................................................. 16 Section 111: - Proof of good faith in transactions where one party is in relation of active confidence…...16

Section 112: - Birth during marriage, conclusive proof of legitimacy................................................ 17 Section 113A: - Presumption as to abetment of suicide by a married woman.................................... 19 Section 113-B: - Presumption as to dowry death. ............................................................................... 20 Section 114: - Court may presume existence of certain acts. ............................................................. 21 Section 114A: - Presumption as to absence of consent in certain prosecutions for rape. ................... 21 Conclusion............................................................................................................................................... 27 Bibliography ................................................................................................................................................ 28

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LAW OF EVIDENCE TABLE OF CASES

Cases C.P.Sreekumar M.S (Ortho) vs S.Ramanujam (2009) 7 SCC 130. ................................................................... 8 C.R. Mehta vs. State of Maharashtra 1993 Cr LJ 2863 (Bom) ....................................................................... 22 Champalal vs. Thakurji Gopalji AIR 1998 Raj. 220......................................................................................... 7 Chuni Kaur vs. Udai Ram (1883) 6 All. 73. ................................................................................................... 25 Devkinandan vs. State 2003 Cr LJ 1502 (MP) ............................................................................................... 19 Indian Bank vs. Booruga Nagaiah Rajanna AIR 2000 AP 289...................................................................... 22 Kamini vs. Puran Chandra AIR 1987 Orrisa 134. ........................................................................................... 9 Kantilal vs Shanti Devi AIR 1997 Raj. 230. ................................................................................................... 15 Keshab Chandra Pandey v State of Orissa 1995 Cr LJ 174 (Ori) ................................................................... 20 Mannu Singh vs. Umadat Pande (1890) 12 All. 523. ..................................................................................... 16 Mewa Devi vs. Ram Prakash AIR 1990 HP 53. ............................................................................................... 9 Mohanlal Shamji Soni vs. UOI AIR 1991 SC 1346. ....................................................................................... 24 Muhammad Sharif vs. Bande Ali I.L.R. (1911) 34 All ................................................................................... 13 Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik AIR 2014 SC 932. ....................................................... 18 Nawab Khan vs. State 1990 Cr LJ 1179. ........................................................................................................ 25 Nitambia vs. State AIR 1957 All. 357. ............................................................................................................ 12 Prabhu v. Emperor AIR 1941 All, 402. .......................................................................................................... 11 R vs. Dolloz (1908) 1 Cr. App Rep 256. .......................................................................................................... 14 Raghunath Parmeshwar Pandit Rao Mali vs. Eknath Gajanan Kulkarni AIR 1996 SC 1290. ....................... 17 S.J. Ebenezer vs. Velaya Dhan AIR 1998 SC 746. ........................................................................................... 7

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LAW OF EVIDENCE Sanwat Khan vs. State of Rajasthan AIR 1956 SC 54. ................................................................................... 21 Sham Lal vs. Sanjeev Kumar (2009) 12 SCC 454. ......................................................................................... 17 State of H.P. vs. Shree Kant Shekari AIR 2004 SC 4404.................................................................................. 8 State of M.P. vs. Jiyala AIR 2010 SC 1451. ................................................................................................... 23 Sucha Singh vs. State of Punjab AIR 2001 SC 1436. ..................................................................................... 12 Surjit Kaur vs. Jujhar Singh AIR 1980 P&H 275. ......................................................................................... 13 Woolmington vs. Director of Public Prosecutions (1935) A.C. 462. ............................................................... 10

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LAW OF EVIDENCE INTRODUCTION

Chapter VII of the Indian Evidence Act deals with Burden of Proof. The word burden of proof has not been defined in Evidence Act. However, it generally means the obligation to prove a fact. In other words, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favour or against his opponent; this obligation is nothing but burden of proof.

The important question is who is supposed to prove the various facts alleged in a case. In other words, on whom should the burden of proving a fact lie? The rules for allocation of burden of proof are primarily governed by the provisions in Section 101-105. The rules propounded by these sections can be categorized as general rules and specific rules. 1

WHAT ACTUALLY EVIDENCE IS? The word “evidence” is originated from a Latin term “evidentia” which means to show clearly, to ascertain or to prove. Thus, evidence is something, which serves to prove or disprove the existence or non-existence of an alleged fact. The party who alleges the existence of a certain fact has to prove its existence and the party, who denies it, has to disprove its existence or prove its non-existence. In other words, evidence is the means of satisfying the court of the truth or untruth of disputed fact between the parties in their pleadings. However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence law.2

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1 https://www.vbook.pub.com/document/265033648/Burden-of-proof-docx 2. https://www.abyssinialaw.com/about-us/item/932-meaning-and-nature-of-evidence-law. 6|P a g e

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LAW OF EVIDENCE BURDEN OF PROOF

STATUTORY PROVISIONS UNDER INDIAN EVIDENCE ACT, 1872: Section 101: - Burden of Proof. – Section 101 specifies the basic rule about who is supposed to prove a fact. It says that 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. For example, 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.

Scope– Basically, the burden of proof is of two kinds: (1) burden of proof on pleading and (2) burden of adducing evidence. Section 101 illustrates the burden of proof in the sense of proving a case (i.e. on pleadings). It lays down that whoever wants a court to give judgment in his favour as to any legal right or liability dependant on the existence of some facts, must prove the existence of those facts. Burden of proof in Criminal cases- Generally, in criminal cases, it is established principle of law that burden of proof is always on prosecution. It never changes. This conclusion is derived from fundamental principle that, the accused should be presumed to be innocent till he is proved guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt.3 Burden of proof constant and burden to lead evidence onus probandi is shifting-Also, the term burden of proof is different from the term onus probandi in the nature that burden of proof arising from the pleadings never shifts which means it always remains constant but the onus of proof shifts as and when one party successfully produces evidence supporting its case. Such a shifting of onus is a continuous process in the evaluation of evidence. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract. 4

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Principles of The Law of Evidence, Dr. Avtar Singh, Central Law Publications, Allahabad, 23rd edition, 2018. . The Law of Evidence, Batuk Lal, Central Law Agency, Allahabad, 21st edition, 2016. 7|P a g e

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LAW OF EVIDENCE In the case of Champalal vs. Thakurji Gopalji5, the suit property alleged to be public trust by defendant. Plaintiff not admitting the above fact in entire proceedings. Fact asserted by the defendant and denied by plaintiff. Onus of proving the same lies on the defendant. “Burden of proof” and “onus probandi” As said above the burden of proof is of two kinds: (1) Burden of proof on pleading (2) Burden of adducing evidence. The burden that arises from pleadings depends upon the facts asserted or denied and is determined by the rule of substantive and statutory law or by presumption of law and fact. A files a suit against W, widow of B for declaration that he is owner of all the property left by B being his adopted son: W the widow denies the factum of adoption. In this case A desires the court to give judgments to the effect that he is owner of the property left by B depending on the fact that he was adopted by B. So he must prove that he was adopted by B. In this case the burden of proof lies on A. In this illustration the burden has arisen from pleadings and is determined by the rules of substantive law. The burden of adducing evidence rests on the party who would lose if no evidence is led by any of the parties. A files a suit on the basis of a bond. B admit the execution of the bond but pleads that the bond was taken by practising fraud upon him. In this case the execution of the bond is admitted and if no evidence is led by B on fraud, A will get a decree and B will loose. Therefore the burden to lead evidence firstly lies on B. He will first lead evidence and then A will produce evidence to rebut the evidence led by B. This kind of burden of proof is sometimes termed as onus of proof (onus probandi). Further, in the case of S.J. Ebenezer vs. Velaya Dhan6, the Supreme Court held that where a landlord wants to evict the tenant on ground of genuine need of accommodation, the burden of proving that he genuinely required the accommodation lies on the landlord. 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.

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AIR 1998 Raj. 220. AIR 1998 SC 746. 8|P a g e

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LAW OF EVIDENCE This section lays down the general test to determine on whom the burden of proof lies. Basically, questions of this kind were not to be decided by simply asserting on which side the affirmative, in point of from, lay: The proper test is which party would be successful if no evidence at all were given. In other words, burden of proof lies on the party whose case would fail if no evidence were given on either side. For Example, 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. Further, where a laundry contract provided for a very small amount of compensation in case of loss of a garment, the court held that the contract was apparently unfair and therefore burden was upon the launderer to show how the contract was fair in the circumstances.7 In the case of C.P.Sreekumar M.S (Ortho) vs S.Ramanujam,8 it was held that onus of proving medical negligence lies on the complainant. Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged to provide facta probanda as well as facta probantia. Further, in the case of State of H.P. vs. Shree Kant Shekari9 it was held that the burden of proving consent in a rape case is on the accused. It is not for the victim to show that there was no consent on her part. It is for the accused to show that she had consented. Section 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 (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. (This is the plea of alibi). The principle of the section is that wherever a party wishes the court to believe and to act upon the existence of a fact, burden lies upon him to prove that fact. This principle will not be affected by the fact whether the particular fact in question is negative or affirmative. In an action, for example, for damages for malicious prosecution, the plaintiff wants the court to 7

R.S. Deboo vs. N.V. Hindlekar, AIR 1995 Bom. 68. (2009) 7 SCC 130. 9 AIR 2004 SC 4404. 8

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LAW OF EVIDENCE believe upon the fact that he was prosecuted without reasonable and probable cause, and although this is the negative of the issue, the plaintiff has to prove it. 10 In the case of Mewa Devi vs. Ram Prakash11, the owner of a motor lorry which killed two persons raised the defence that the cause of the accident was the mechanical failure of brakes and the steering wheel. It was held that the burden was upon him to prove these particular facts and also the fact that he had been exercising the reasonable care and caution in maintaining the lorry in a roadworthy condition. Also, in the case of Kamini vs. Puran Chandra12, a married woman was driven out of the matrimonial home by ill treatment. She filed a case to recover her jewellery and other articles. Her in-laws contended that she had taken them away. The court said that there would be no presumption that she had done so. The burden was upon the in-laws to prove it.

Section 104: - Burden of proving fact to be proved to make evidences admissible. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Illustration (a) A wishes to prove a dying declaration by B. A must prove B’s death.

Where the admissibility of one fact depends upon the proof of another fact, the party who wants to prove it will have to prove the fact on which admissibility depends. In illustration, a dying declaration of deceased to be proved but before that death of victim is to be established/proved. Similarly, if a party wants to offer the secondary evidence of a document he must prove the original has been lost or destroyed or that the case is within any of the exceptions in which secondary evidence can be given. 13 Section 105: - Burden of proving that case of accused comes within exceptions. –

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. 10

Abrath vs. North Eastern Rly., (1883) 11 Q.B. 440. AIR 1990 H.P. 53. 12 AIR 1987 Orissa 134 13 Supra note 3 11

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LAW OF EVIDENCE Illustration (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. This section particularly applies only to the criminal proceedings. The general principle is that the accused is presumed to be innocent till he is proved guilty and burden lies on the prosecution to prove his guilt beyond reasonable doubt. Thus, prosecution has to prove each and every ingredient of the committed crime. Once the prosecution has proved that the accused is guilty and if he takes any defense such as insanity, the burden of proving that fact lies on him. That is what this section provides for. It says that if the accused claims that his case comes within any of the recognized exceptions, the burden of proving that lies on him. However, he is not required to prove the same beyond reasonable doubt. It is sufficient if the accused person succeeds in proving the preponderance of probability i.e. a reasonable doubt with regard to the offence. As soon as the preponderance of probability is proved, the burden again shifts to the prosecution. In fact, the original onus never shifts and the prosecution has at all the stages of the case to prove the guilt of the accused beyond reasonable doubt. 14

Presumption of innocence well established principle of Criminal Jurisprudence. In the case of Woolmington vs. Director of Public Prosecutions15, the House of Lords pointed out that it is not for the prisoner to establish his innocence but for the prosecution to establish his guilt beyond reasonable doubt. It is sufficient for the defence to raise a doubt as to his guilt; he is not bound to satisfy the court of his innocence, for there is already the presumption of innocence.

Burden of proving self defence Also, in the case of K.M. Nanavati v. State of Maharashtra,16 it is observed that: "In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused; to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption.

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Supra note 4. (1935) A.C. 462. 16 [1962] Suppl. 1 SCR 567. 15

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LAW OF EVIDENCE The burden of proof of self-defence lies on the accused. But he has not to prove it beyond a reasonable doubt. If by the evidence placed before the court, by the accused or by the prosecution a reasonable doubt is created in the mind of the court that the accused might have acted in the exercise of right of self-defence, he is entitled to acquittal. In Prabhu v. Emperor17—Due to shifting of the course of a river a piece if land appeared. There were two sets of claimants to the land. These two sets of parties can be called “Genda’s party” on the one hand and “Ganeshi Party’ on the other hand. On 26 th Nov, 1940 both parties met on the aid land and set about each other with lathis with the result that four appellants out of Genda’s party were injured. Several causalities occurred among Ganeshi’s party including Ganeshi himself who died. The prosecution story was that Ganeshi’s party went to the field in question and were wantonly attacked by Genda’s party without any provocation being offered to them. The appellants version however was that they had already sown a crop in the land and were deliberately attacked by Ganeshi Men, in consequences of which they had in self-defence to employ their lathi to protect themselves. The appellant led evidence to prove their self defence, which was disbelieved and they were convicted. The full bench held that having regard to Section 96 of IPC and Section 105 of the Evidence Act in a case in which general exception is pleaded by an accused person and the evidence is adduced to support such plea but such evidence fails to satisfy the court affirmatively of the existence of the circumstances bringing the case within the general exception pleaded, the accused person are entitled to be acquitted, if upon a consideration of evidence as a whole given in support of the plea of the said general exception a reasonable doubt is created in the mind of the court that the accuse person is entitled to the benefit of the said exception and appellants were acquitted. Section 106: - Burden of proving fact especially within knowledge. – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration: - A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. Facts especially within the knowledge of a party. This section lays down that where the subject matter of the allegation lies peculiarly within the knowledge of one of the parties, that party must prove it, whether it may be of affirmative or negative character. Section 106 is an exception to the section 101. As a general rule, the 17

AIR 1941 All. 402 (FB). 12 | P a g e

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LAW OF EVIDENCE burden of proof is on the prosecution and section 106 is certainly not intended to relieve the prosecution of that duty. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, which makes out a prima facie case and in such situations the burden of proof may lie upon the accused. Also, it is designed to meet certain exceptional cases, where it would be impossible for the prosecution to establish facts which are especially in the knowledge of the accused and which the accused could only prove without difficulty and inconvenience. Again, the burden of proof is discharged the moment the accused person establishes his case by the preponderance of probability. 18 This principle applies only when the fact in question is specially within knowledge of a party to the proceeding and not when, for example, the fact is in his mother’s knowledge. In the case of Sucha Singh vs. State of Punjab19, a person was abducted and murdered. If an accused wants to prove that he was not associated with murder of the abducted person, it is in his special knowledge what he did at the time of murder. Unless he failed to offer any explanation from which the court may draw a different inference, the court will presume that all the abductors were involved in the murder of the victim. But it should also be remembered that the explanation given by an accused does not relieve the prosecution of burden to prove the guilt of accused beyond reasonable doubt. Further, in the case of Nitambia vs. State,20 where a postman claimed that he delivered the proceeds of money-order in the home of addressee, who was a boy, this fact was specially within the knowledge of the postman and therefore, it was held that burden lay upon him to identify the boy.

Section 107: - Burden of proving death of a person known to have been alive within thirty years. – 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.

This section provides that when a person is shown to have existed within the last thirty years, the presumption is that he is still alive and if any-body alleges that he is dead, he must prove it. However, this presumption is not a very strong one. It may not only be rebutted by a slight

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7 Supra note 1. AIR 2001 SC 1436. 20 AIR 1957 All. 357. 19

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LAW OF EVIDENCE evidence to the contrary, for example, seven years’ absence, but the court may not act upon it until positive proof of his being alive is offered. 21 In the case of Surjit Kaur vs. Jujhar Singh22 where a person was known to be alive up to 1960, The P. & H. High Court held that it must be presumed that he would be alive up to 30 years from that date. If his wife wanted to remarry, she must prove that he is no longer alive or has remained unheard of for seven years. All that she was able to show was that two of their relatives knew that he had gone to Indonesia and more than seven years had passed and he had neither written any letter nor otherwise heard of by anybody since then. This was held to be not sufficient to create the presumption of death. Her marriage was declared to be void.

Section 108: - Burden of proving that person is alive who has not been heard of for seven years. —

Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

The essence of this section is that if a person is not heard of for seven years, the presumption is that he has died and if anybody alleges that he is still alive, he must prove that fact. Thus, seven years absence creates rebuttable presumption of death. It is to be noted that there is a simple presumption of death and not of the time of death. If the time of death is a vital fact during the period of seven years, then those who allege that death should be taken to have occurred at a particular time will have to prove that fact. 23

No Presumption as to Time of death In the case of Muhammad Sharif vs. Bande Ali24 one M mortgaged certain property to the defendant in 1890. Thereafter, he disappeared and nothing was heard of him again. He had no heirs. His brother D, who should have inherited the property, died about 14 years after M’s disappearance and by the time the present suit began about 18 years had passed to his absence. The heirs of D filed a suit for the redemption of the mortgage and contended that as M disappeared some 18 years ago, he must be presumed to have been dead for the last 11 21

20 Supra note 4. AIR 1980 P.& H. 275 23 Supra note 3. 24 I.L.R. (1911) 34 All 22

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LAW OF EVIDENCE years, and D, who was alive till a latter date, must be deemed to have succeeded him as an heir. However, court held that the plaintiff’s contention that M had not been heard of for more than 7 years raises no greater presumption of his death than if the evidence had been confined to the exact period of 7 years. In other words, the only presumption is that M is dead. There is no presumption that he died in the first 7 years or in the last 7 years. The presumption merely is that he was dead. The burden of showing that he was alive being thrown upon the defendants if it was necessary for them to do so. The Supreme Court has reiterated the same principle in the case of Darshan Singh vs. Gujjar Singh,25 where the plaintiff claimed the succession to the estate of a person who had not been heard of for 7 years. The High Court held that the date of the suit should be taken to the date of death. However, the Supreme Court did not approve this view and held that there is no presumption of the exact time of death and the date of death had to be established on evidence by the person who claims a right for the establishment of which that fact is essential. In this case, since the plaintiff claimed succession to the estate and therefore, the burden was upon him to prove the date of death.

Section 109: - Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. –

When the question is whether persons are partners, landlord and tenant or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationship, respectively, is on the person who affirms it. Where certain persons are shown to have acted as partners, or as landlord and tenant or as principal and agent, the law presumes them to be so related and continues to be so related, so that the burden of proving that they were never so related or have ceased to be so shall lie upon the party who says so. This section is based upon the presumption that things continue as they were. Things or circumstances, once proved to have existed in a certain state at a particular time, continue to exist in that state for a reasonable period thereafter. In the case of R vs. Dolloz26 where a train or motor vehicle has been seen running at a particular speed, the presumption will be that it maintained the same speed at a later moment when it met with an accident.

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(2002) 1 Supreme 36. (1908) 1 Cr. App Rep 256. 15 | P a g e

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LAW OF EVIDENCE Section 110: - Burden of proof as to ownership. – When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Possession is prima facie proof of title. And so it has been laid down by section 110, Evidence Act that when the question is whether any person is owner of any property and when it is shown that one person is in possession of it, it shall be presumed that the person in possession of the property is owner of it and the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The fact of possession suggests ownership. However, the principle of this section does not apply where the possession has been obtained by fraud or force. In the case of Kantilal vs Shanti Devi,27 the Rajasthan High Court held that the proof of possession varies with the nature of the property under scrutiny of court, onus lies on plaintiff to prove his legal possession within 12 years. Once it is established, the onus shifts on defendant to prove that he is entitled to retain possession on basis of better title.

Section 111: - Proof of good faith in transactions where one party is in relation of active confidence. – Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. Illustration: (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

Where the parties to a case are so related that one of them occupies the position of active confidence, the law requires that the party enjoying confidence must act in good faith towards the other and the burden lies upon him to prove that he did act in good faith. For example, A, a lawyer takes the mortgage of a house from B a client of his. Just before the mortgage, A was litigating for the same house. Now after the mortgage, B files a suit for cancellation of the mortgage alleging that A deceived him and took the mortgage by practicing fraud upon him. So, in this case the burden will lie on A to prove that he committed no fraud on B. 27

AIR 1997 Raj. 230. 16 | P a g e

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LAW OF EVIDENCE Initially, it is always upon the plaintiff to prove that there was a fiduciary relation or a relationship of active confidence between them. The burden of proving good faith at the transaction would then shift to the other party. Until then the plaintiff has to prove his allegations of fraud, etc. The words “Active Confidence” indicates that the relationship between the parties must be such that one is bound to protect the interests of other. This has been held to apply to a trustee, an executor, an administrator, a guardian, an agent etc. In the case of Mannu Singh vs. Umadat Pande28, a suit for cancellation of a deed of gift executed by the plaintiff in favour of the defendant, the plaintiff was well advanced in years and the defendant was his spiritual adviser. The gift comprises whole of the plaintiff’s property and the only reason for its execution was the plaintiff’s desire to secure benefits to his soul in the next world. Almost immediately after the execution of the deed the plaintiff repudiated it, and sued for its cancellation on the ground of fraud. It was held that having regard to the fiduciary relation subsisting between the parties, the burden rested upon the defendant to show that the transaction was made without undue influence and in good faith and in the absence of such proof, the plaintiff was entitled to obtain cancellation of the deed. Section 112: - Birth during marriage, conclusive proof of legitimacy. —

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Presumption about legitimacy: - This section is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be presumed. And once the validity of marriage is proved then there is strong presumption about the legitimacy of children born from that wedlock. This presumption can only be rebutted by strong, clear, satisfying and conclusive evidence of party who seeks to establish the contrary. It cannot be displaced by mere balance of probabilities and therefore it can be displaced only by proof of non-access between the parties to the marriage. Thus, the non-access can be

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(1890) 12 All. 523. 17 | P a g e

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LAW OF EVIDENCE proved only by evidence direct or circumstantial though the proof of non-access must be clear and satisfactory as the presumption of legitimacy is highly favoured by law. 29 The essential conditions for the presumption to arise are: - (1) The child should have been born during the continuance of a valid marriage, or if the marriage was dissolved, within 280 days after its dissolution, the mother remaining unmarried. (2) The parties to the marriage should have had access to each other at any time when the child could have been begotten.

Presumption as to valid marriage or factum of marriage must be proved In the case of Raghunath Parmeshwar Pandit Rao Mali vs. Eknath Gajanan Kulkarni30, the SC laid down that in certain circumstances the valid marriage can be presumed. The court held that where there was evidence on record to prove staying together as husband and wife for continuous and long period, there is presumption of valid marriage. Further, in the case of S. Ajaramma Bibi and ors. vs. S. Khursheed Begum and ors,31 the SC said that continuous cohabitation of woman with a man give rise to presumption of legitimacy of children born during period of continuous cohabitation. Appellants are legitimate son.

Access:The word access in this section means actual sexual intercourse and that should be an effective access. Here the presumption of legitimacy largely depends upon the presumed fact that the parties to a marriage have necessary access to each other. To rebut this presumption, it is for those, who dispute the paternity of a child, to prove non-access of the husband to his wife during the period when, with respect to the date of its birth, it must have been begotten. In the case of Sham Lal vs. Sanjeev Kumar32 the plaintiff and defendant were born during the continuance of valid marriage which was never dissolved and there was no evidence on record that their parents did not have access to each other at any point of time, the SC relied upon the presumption of S. 112 to conclude in favour of legitimacy of children born out of continuation of the valid marriage.

29

The Law of Evidence, Ratanlal & Dhirajlal, Lexis Nexis, Gurgaon, 26th edition, 2017. AIR 1996 SC 1290. 31 AIR 1996 SC 1663. 32 (2009) 12 SCC 454. 30

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LAW OF EVIDENCE Further in the case of Garfath vs. Garfath33 it was held by the court that the presumption of legitimacy is a presumption of law, not a mere inference to be drawn by a process of logical reasoning from the fact of marriage and birth or conception during wedlock. It is a presumption founded upon public policy which requires that every child born during wedlock shall be deemed to be legitimate unless the contrary is proved. The Supreme court in case of Devesh Pratap Singh vs. Sunita34 Singh held that in absence of dislodging of presumption by proof a husband cannot derive much help from her admission that when she met him, she was in period of menses and after that she gave birth to a child who is an illegitimate one, born validly out of wedlock of hers with her husband.

Relevancy or admissibility of D.N.A. Test In Nandlal Wasudev Badwaik v. Lata Nandlal Badwaik35 it was held by the court that DNA Test prevails over presumption of conclusive proof under Section 112. Section 112 of the Evidence Act was enacted at a time where the modern scientific advancement and DNA Test were not even in contemplation of the Legislature. The result of DNA Test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, there is no need or room for any presumption. Where there is a evidence to the contrary, the presumption is rebuttable and must yield to proof. Where there is conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former. Section 113A: - Presumption as to abetment of suicide by a married woman. — When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. This section gives wide powers to the court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide. The words “all 33

(1959) SR 362 Australia. AIR 1999 MP 174. 35 AIR 2014 SC 932. 34

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LAW OF EVIDENCE other circumstances of the case” requires that a cause and effect relationship between the cruelty and suicide has to be established before drawing the presumption. Thus, the presumption is not of mandatory nature and it won’t automatically apply. In order to attract the provisions of S.113A, the burden of proving the fact lies on the person who affirms it. This principle of burden of proof is applicable to all matrimonial offences and one needs to prove that: 1. Suicide is committed by a married woman; 2. Suicide has been abetted by husband or any relative of the husband; 3. Suicide is committed with in seven years of the marriage, 4. She has been subjected to cruelty (as defined in 498A of Indian Penal Code) by her husband before her death. In the case of Devkinandan vs. State36, the wife died by consuming poison. Oral and documentary evidence showed that the husband subjected her to mental cruelty. Her letters showed that he dominated her and was treating her like a chattel. The court said that the conduct of the accused was of such a nature as was likely to drive his wife to commit suicide. Thus, he abetted suicide. The presumption under the section prevailed. But where a married woman has committed suicide within one year of marriage and from the circumstantial evidence it was established that there was no harassment and torture of the deceased by the accused husband and in laws for the want of dowry, presumption under S. 113A was not made. 37 Section 113-B: - Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death. Explanation- For the purposes of this section 'dowry death' shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).

When a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected to cruelty by such person in connection with any demand of dowry, then as per S. 113B the court shall presume that such person had caused dowry death. Presumption under this section is a presumption of law and not of a fact.

36 37

2003 Cr LJ 1502 (MP). State of Haryana vs. Suresh Kumar, 1993 Cr LJ 1400 (P&H). 20 | P a g e

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LAW OF EVIDENCE Thus, on proof of the essentials mentioned therein, it becomes obligatory on the court to raise presumption that the accused caused the dowry death. However, if there is proof of the person having intentionally caused her death that would attract S. 302 IPC only. While construing this provision strictly, care will have to be taken to see that its object is not frustrated. And the presumption under this section is attracted only in case of suicidal or homicidal death and not in case of an accidental death. In the case of Hem Chand vs. State of Haryana38, where the death was by strangulation and evidence was available to show that dowry was being demanded and the accused husband was also subjecting his deceased wife to cruelty, it was held that the presumption under the section applied with full force making the accused liable to be convicted under S. 304B IPC. In the case of Keshab Chandra Pandey v State of Orissa

39

, it was held that the presumption

under s. 113B of the Indian Evidence Act shall be raised only on the proof of the following essentials: (i) Whether the accused has committed the dowry death of a woman, which means that the presumption can be raised if the accused is being tried for an offence under s.304B, Indian Penal Code. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for or in connection with the any demand for dowry. (iv) Such cruelty or harassment was soon before her death. Even if one of the ingredients is not made out, the presumption under this section wouldn’t be available to the prosecution and the onus would not shift to the defense. The term “soon before her death” refers to cruelty or harassment which was meted out in proximity to the death and has to be considered as the cause of death. It is a relative term. The time lag may differ from case to case. The expression soon before would normally imply that the interval should not be much between the cruelty and harassment concerned and death in question. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 40 Section 114: - Court may presume existence of certain facts. – This section basically provides for presumption where the court can exercise its power of inference i.e. the court can throw the burden of proof on whichever side it chooses. This section authorizes the court to make certain presumptions of fact. The effect of this provision is to make it clear that the Courts of Justice are to use their own common sense and 38

AIR 1995 SC 120. 1995 Cr LJ 174 (Ori). 40 Hira Lal vs. State (Govt. of NCT of Delhi), (2003) 8 SCC 80, para 9. 39

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LAW OF EVIDENCE experience in judging of the effect of particular facts. Again, such presumption is not an evidence or proof. It only shows on whom the burden of proof lies. However, the use of the word may instead of shall in the section shows that the court is not compelled to raise them. No hard and fast rule is there with regard to the circumstances in which any fact may be presumed to exist, though it provides a few illustrations from various walks of life. In the case of State of Karnataka vs. David Razario41 it was held that a presumption of facts is an assumption resulting from one’s experience of the course of natural events in the context of human conduct and human character, an experience which can be made use of in the ordinary course of life as well as in the business of courts.

Illustration (a) of Section 114: - raises two presumptions that: the person in possession of stolen goods soon after the theft is either (1) the thief or (2) has received the goods knowing them to be stolen. The question as to which of the two presumptions is to be drawn will depend upon the facts of each particular case. It is not a mandatory provision although. And it doesn’t in any way shift the burden of the proof to the accused. The main onus remains on the prosecution to prove his case. The presumption under this arises only when the prosecution has established that 1) the ownership of the article 2) theft of the article 3) its recent possession by the accused. Before a presumption can arise, it must necessarily be proved that the goods found in possession of the accused had been stolen. In the case of Sanwat Khan vs. State of Rajasthan,42 it was held down that where the only evidence against an accused person is the recovery of stolen property and the circumstances may indicate that the theft and the murder must have been committed at the same time, in such situations it is not safe to draw the inference that the person in possession of the stolen property was the murderer. Suspicion cannot take the place of proof in such cases. The SC has held that the presumption permitted to be drawn under this has to be read along with the important time factor. If the time gap is too large, the presumption that the accused was concerned with the crime itself gets weakened. Therefore, the question what peiod is covered by the term soon after would depend upon the circumstances of each case. No time limit can be prescribed. 43

41

AIR 2002 SC 27. AIR 1956 SC 54. 43 Tulsiram vs. State, AIR 1954 SC 1. 42

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LAW OF EVIDENCE Illustration (b) of Section 114: - An accomplice is one who is a guilty associate in crime. Where the witness sustains such a relation to the criminal act that he could be jointly indicted with the accused, he is an accomplice. It is a rule of law that the evidence of an accomplice ought not to be acted upon unless it is corroborated as against the accused in material aspects. It must be such as to connect or identify each of the accused with the offence. The corroborative evidence must be such which confirms not only the evidence that the crime has been committed but also the evidence that the accused committed such crime. However, this evidence ought to be regarded with suspicion. In the case of C.R. Mehta vs. State of Maharashtra44, the accused offered a minister a sum of Rs. 3 Lacs as a corruption for doing certain favours and the minster gave them impression that he was willing to consider their offer but he informed the Anti- Corruption Bureau and filed a complaint whereupon a trap was laid by A.C.B. It was held that unlike other cases, where the complainants are members of public and the complaints are against the public servants, the complainant could not be equated with the position of an accomplice and in such unusual cases the accused could be convicted even on uncorroborated testimony of the complainant.

Illustration (c) of Section 114: - talks about the presumption of consideration in negotiable instruments. It is based upon a maxim omnia praesumuntur rite, esse acta which means that all things are presumed to be done in due form. This principle has been recognized in support of the solemn acts of even private person. According to Illustration (c), the court may presume that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration. But this section has authorized also that the court must have regard to other material facts for its consideration. In considering all facts, the court may presume a bill of exchange proved until it is disproved. Thus, the burden is upon the other party. In the case of Indian Bank vs. Booruga Nagaiah Rajanna45 a bill of exchange given to bank was dishonoured. The bank did not give to the drawer notice of dishonour within reasonable time. The bank was withholding evidence as to the date of dishonour. The notice being not given within reasonable time; therefore, it was not entitled to any compensation.

44 45

1993 Cr LJ 2863 (Bom). AIR 2000 AP 289. 23 | P a g e

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LAW OF EVIDENCE Illustration (d) of Section 114: - This illustration is founded on the presumption which exists in favour of continuance or immutability. If a thing or state of things is shown to exist, an inference of its continuity within a reasonable proximate time may sometimes be drawn. And it depends upon the nature of the thing and surrounding circumstances. In other words, the ordinary legal presumption is that things remain in their original state. For example, if a person is shown at one time to be a member of a Joint Hindu family, it will be held under this illustration that he never separated at all unless the contrary is proved. In the same way, property which was shown to be ancestral would continue to be so until the contrary is shown. But where the property was shown to be in the name of co-sharer, there was no presumption that it was ancestral property.46

Illustration (e) of Section 114: - The presumption under this section, though it is optional, is that when a judicial or official Act has been done, it will be presumed to have been regularly done. Thus, the rule embodied is that all the acts are presumed to have been rightly and regularly done until the contrary is shown. The burden is heavier on the accused to rebut that statutory presumption. For example, the appointment of teachers governed by statutory regulations is an official act and a presumption of regularity attaches to it. In the case of State of M.P. vs. Jiyala47, where an order was passed by magistrate in the course of performing his official duty by /which a prosecution was sanctioned under the Prevention of Corruption Act, 1988. Presumption of validity attached to the order. Examination of Magistrate was not necessary.

Illustration (f) of Section 114: - Illustration (f) has to be read with Section 16 of this Act, which attaches a great evidentiary value to an act done in any general course of business. The presumption is that the course of business is followed by the parties in commercial transaction. If the letter correctly addressed was posted and that it did not come back, it may be presumed that in course of business it was received by the addressee. However, the presumption is rebuttable on a consideration of evidence of impeccable character. Where a notice to quit sent by the landlord by registered post to the tenant, which the latter as verified by the postman, refused to take, was presumed to have been delivered. Merely making a bold statement that he did not receive the notice was not enough.

46 47

Raghunath Tiwari vs. Ramakant Tiwari, AIR 1991 Pat 145. AIR 2010 SC 1451. 24 | P a g e

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LAW OF EVIDENCE Illustration (g) of Section 114: - This Illustration deals with the presumption arising from withholding evidence. The court has the opinion, it may or may not raise presumption on the proof of certain facts. The aspect of adverse inference could arise in a case where there is no evidence in so far as the evidence that was available was suppressed or produced. But where the material produced by the prosecution is itself sufficient, s. 114 Illustration (g) cannot come to the assistance of the accused. The conduct of the person withholding the evidence may be attributed to a supposed consciousness that the evidence, if produced, would operate against him. In this connection, the SC observed in the case of Mohanlal Shamji Soni vs. UOI,48 that it is a cardinal rule in the law of evidence that the best available evidence should be brought before the court by both the parties to prove a fact and the points in issue. Nonetheless, if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under this section.

Illustration (h) of Section 114: - Refusal to answer a question is a legitimate ground of unfavourable inference against the person who has to answer the question. An adverse inference can ordinarily be drawn in respect of allegations which are not traversed. But there is no rule that an adverse inference must always be drawn whatever the facts and circumstances may be. There is also the rule that everybody has to prove his own case and no one can take the advantage of the weakness in evidence of the other side. In the case of Dipanwita Roy vs. Ronobroto Roy49, involving illegitimacy of a child, the HC had ordered the wife to undergo a DNA test. The SC gave liberty to her to comply with or disregard the order passed by the HC and if she declined to comply with the directions issued by the HC, an adverse inference could be drawn against her, in terms of the provisions of this section.

Illustration (i) of Section 114: - The presumption is founded on the natural supposition that a man will protect his own interests by securing his bond before or at the time of discharging it.

48 49

AIR 1991 SC 1346. AIR 2015 SC 418. 25 | P a g e

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LAW OF EVIDENCE When the instrument of a debt and the security for that debt are found in the hands of the debtor, the prima facie presumption is that the debt has been discharged. 50 In the case of Chuni Kaur vs. Udai Ram51, in a suit on a bond for money, plaintiff alleged that his non-production of the document was due to the fact that the defendant had stolen it. The defendant admitted the execution of the bond, but alleged that he had paid it; it was held that the burden of proof was on the defendant to prove the payment, either by the production of the bond or other evidence or both. Section 114A: - Presumption as to absence of consent in certain prosecutions for rape. – Under section 114A, if the prosecutrix alleges that the accused had sexual intercourse with her and she did not consent for the same, the court shall presume that there was no consent at all. The statement of the victim of rape alone is sufficient to prove absence of consent in a charge of rape. It is the accused who needs to prove that the prosecutrix consented to the sexual-intercourse. The following three conditions must be satisfied before the presumption contained in S. 114A can be raised: (a) It should be proved that there was sexual intercourse. (b) The question before the court should be whether such intercourse was with or without the consent of the woman. (c) The woman must have stated, in her evidence before the court that she had not consented to the intercourse. This presumption would apply not only to rape cases, but also to cases of attempted rape, as for instance, when the victim was disrobed and attempts were made to rape her, which, however, could not materialize because of intervening circumstances. 52 Therefore, in the case of Nawab Khan vs. State53, the prosecutrix stated in her evidence that she did not consent to the sexual intercourse. The court accordingly held that by virtue of this section the burden of proving consent become shifted to the accused. The section comes into play on proof by the prosecution that sexual intercourse had, in fact, taken place and on the victim girl saying before the court that there was no consent on her part.

50

Bhoy Hong Kong vs. Ramanathan Chetty. (1883) 6 All. 73 52 Fagnu Bhai v. State of Orissa, 1992 Cri. L.J. 1808. . 53 1990 Cr LJ 1179. 51

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LAW OF EVIDENCE CONCLUSION

The general rule with regard to burden of proving the fact is that he who asserts must prove. The rule is in accordance with the principle that the burden of proof is upon the party who substantially asserts the affirmative of the issue but not on the party who denies. The reason being that the person who brings another party into the court must bear the burden of proving the fact which he asserts. This rule of convenience has been adopted in practice, not because it is impossible to prove a negative but because the negative does not admit of the direct and simple proof of which the affirmative is capable. The expression burden of proof has two distinct meanings, one is the legal burden. i.e. burden of establishing the case and second is the evidential burden, for example: burden of leading evidence in the court of law.

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LAW OF EVIDENCE BIBLIOGRAPHY

BOOKS REFERRED: • • •

Principles of The Law of Evidence, Dr. Avtar Singh, Central Law Publications, Allahabad, 23rd edition, 2018. The Law of Evidence, Batuk Lal, Central Law Agency, Allahabad, 21 st edition, 2016. The Law of Evidence, Ratanlal & Dhirajlal, Lexis Nexis, Gurgaon, 26 th edition, 2017.

WEBSITES ASSESSED: •

https://www.vbook.pub.com/document/265033648/Burden-of-proof-docx

•

https://www.abyssinialaw.com/about-us/item/932-meaning-and-nature-of-evidence-law

•

https://www.legallyindia.com/views/entry/burden-of-proof-party-relying-on-a-fact-mustprove-it

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