SPECIAL RULES OF BURDEN OF PROOF

SECTION 104

As per this provision the relevancy or admissibility of a fact depends upon proof of some other fact, the burden of proving the latter fact is on the party wishing to give evidence of the former fact. Thus when a party wishes to prove a certain fact admissible only upon proof of some other fact, then the burden to prove also those that relate merely to the admissibility of evidence or to the construction of the documents also rest upon him. Therefore, a party desiring to adduce hearsay evidence must first establish the conditions necessary to its reception. Similarly, if a party wishes to adduce secondary evidence of the contents of the document, then it must show that there are circumstances which justifies secondary evidence to be given. This section should be read in tandem with Section 136 second para of the Act. As per Section 136 of the Act, if evidence of any fact is admissible only on proof of some other fact, then that other fact should be proved first, otherwise, the evidence would of the latter fact would not be allowed.

SECTION 105

In a criminal trial, the burden of proof of the entire case is upon the prosecution. The prosecution is supposed to establish its case beyond all reasonable doubts. However, the case of the accused comes within certain exceptions, either general or special. In such cases, the burden to prove the same would be upon the accused. As per the law, the Court shall always presume the absence of circumstances which makes the case come within certain exceptions. Therefore, if the accused pleads that his case comes within certain exceptions then it is for him to prove the same.

Another question that arises for the Court to consider is what is the levels bindin of proof to be discharged by the accused? The accused is supposed to prove the existence of circumstances bringing its case within the exceptions by preponderance probability of the accused by adducing his evidence to claim the case to come within the general ar special exception is unable to show or prove the same, but in that process creates a reasonable doubt in the mind of the Court with respect to the prosecution’s case, then he would get the benefit of doubt.

SECTION 106

In the case of Shambhu Nath Melira u State of Ajmer SC 1956 the supreme court held that section 106 is only an exception to section 101 which lays down the general rule that the burden is on the prosecution to prove that the accused ha committed the offence with which he is charged. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of citse, the burden is on the prosecution and never shifts. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are “especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially stresses that means facts that are pre-eminently or exceptionally within his knowledge. Isthe section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not comunit the murder because who could know better than he whether he did or did not.

In the case of Vikramjit Singh v State of Punjab [ SC 2006], the supreme court observed that Section 100 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, c.g, whersburden of proof may be imposed upon the accused by reason of a statute.

SECTION 109

In a society several types of relations exist. There is a presumption under the Law that once certain relations are shown to exist then it continues to exist. A partnership, a tenancy or an agency once shown to exist, is presumed to continue till it is proved to have been dissolved or terminated. Cases other than the three mentioned in Section 109 are covered by the general presumption under Section 114(d) of the Act. However, the presumption under Section 114 (d) is optional.

SECTION 110

This provision gives effect to the principle that possession is prima facie evidence of complete title; anyone who intends to oust a possessor must establish a right to do so. Longer the possession stronger the presumption. Where no actual proof of title is forthcoming the matter is one of presumption based upon the policy of law. Possession has two fold value; it is evidence of ownership, and is itself the foundation of right to possession.

Section 110 of the Act is reflective of the principle that a person in possession of land without title has an interest in the property which is heritable and gond againstall the world except the true owner.

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.

In the case of Anil Rishi v Gurbaksh Singh SC 2006], the apex court held that Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words active confidence indicate that relationship between the parties must be such that one is bound to protect the interests of the other. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant-appellant, the burden would lie on him as he had alleged fraud.

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