On whom Burden of Proof lies (Section 99 BSA)

Section 99 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) outlines the general principles regarding the burden of proof.

Burden of proving fact to be proved to make evidence admissible

• General Rule: The burden of proving any fact necessary in order to render evidence admissible lies on the person who wishes to give such evidence.

• Example: If a party wants to rely on a dying declaration, the burden is on them to prove that the statement was made by a deceased person, relating to the cause of their death, and that they believed death was imminent.

Burden of proving fact to be proved to make evidence irrelevant

• General Rule: The burden of proving any fact which would make evidence admissible becomes irrelevant lies on the person who wishes to prove it.

• Example: If a confession is made under duress, the burden is on the prosecution to prove that it was voluntary, or on the accused to prove that it was involuntary if they are claiming it should be excluded.

Essentially, the burden of proving a fact rests on the party who asserts its existence.

Burden of Proof in Civil Cases

In civil litigation, the burden of proof generally lies with the party who makes the assertion.

Party asserting fact must prove it

• Section 99(1) BSA: 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.

• Burden of Assertion: The party who claims a right or asserts a fact has the onus to prove it. For example, in a breach of contract case, the plaintiff must prove that a contract existed and that it was breached.

• Shifting Burden: The burden of proof may shift. For instance, if the plaintiff proves a prima facie case, the burden might then shift to the defendant to disprove it.

Burden of Proof in Criminal Cases

Criminal cases have distinct burdens of proof due to the higher stakes involved (liberty and reputation).

Presumption of Innocence

• Fundamental Principle: An accused person is presumed innocent until proven guilty. The burden of proving guilt lies entirely with the prosecution.

• BSA Alignment: While not a specific section in BSA on presumption of innocence (as it is a constitutional principle), all provisions concerning proof of guilt are framed keeping this in mind.

Standard of Proof: Beyond Reasonable Doubt

• Prosecution's Burden: The prosecution must prove every element of the offence charged against the accused beyond a reasonable doubt.

• Reasonable Doubt: This is a very high standard of proof. If there remains a reasonable doubt in the mind of the court regarding the guilt of the accused after considering all the evidence, the accused must be acquitted.

• Accused's Burden: The accused does not have to prove their innocence. However, if the prosecution establishes a prima facie case, the accused may need to present evidence to raise a reasonable doubt, or to establish a defence like self-defence or insanity, where the burden of proving the defence might shift to the accused (though typically only to the standard of balance of probabilities).

Burden of Proving a Fact to be Proved to make Evidence Admissible

• Section 99(2) BSA: If a fact is offered in evidence, and some person is objected to its being admitted on the ground that it is irrelevant, or that its relevance depends on its being shown to be relevant by the means of another fact, the burden of proving the relevance of such fact lies on the person who wishes to give evidence of it.

• Explanation: This clarifies that the party seeking to introduce evidence must first demonstrate that the evidence itself is either relevant directly or is relevant because it leads to proving another relevant fact.

• Examples: To admit a dying declaration, the party must prove the circumstances that make it relevant (deceased status, cause of death statement, imminent death belief).

When a Fact is Deemed Proved (Section 98 BSA)

• Definition: Section 98 BSA (likely corresponding to Section 3 of Indian Evidence Act) defines "deemed proved".

• Meaning: A fact is "deemed proved" when, after considering the matters before it, the Court believes to exist, or considers it so probable that a prudent man ought, in the circumstances of that case, to act upon the supposition that it exists.

• Standard: This is akin to the standard of proof in civil cases ("preponderance of probabilities"), but the framing "prudent man ought... to act upon the supposition" implies a strong probability.

Court May Presume

The BSA categorizes presumptions into those that the court "may presume" and those that it "shall presume." Facts that the court "may presume" are often rebuttable by evidence.

Section 100 BSA: Presumption as to certain public documents

• Specific Presumptions: This section likely lists various public documents regarding which the court may presume certain facts (e.g., the authenticity of certain official gazettes, reports, or records).

• Examples: The court may presume that any particular document purporting to be a proclamation published under the authority of the Central Government or any State Government was made under the authority of the said Governments respectively.

Section 102 BSA: Presumption as to documents thirty years old

• Relevancy: Where any document, purporting to have been made 30 years ago, is produced from proper custody, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person who is shown to have signed the same, is in the handwriting of the person so shown, and that the document was duly executed or made.

• Conditions:

  • Document must be 30 years old.

  • It must purport to have been made at that time.

  • It must be produced from proper custody.

Section 103 BSA: Presumption as to grants and title deeds of certain date

• Relevancy: Where any document purporting to be a grant or confirming or carrying any interest, which is by law required to be registered, is produced from proper custody, and professes to have been executed 20 years ago, the Court may presume that the said signature and every other part of such document which purports to be in the handwriting of any particular person who is shown to have signed the same, is in the handwriting of the person so shown and that the document was duly executed and attested in accordance with law.

• Purpose: This presumption aids in proving the authenticity of old documents related to property or grants.

These presumptions are rebuttable.

Court Shall Presume

Presumptions that the court "shall presume" are mandatory. The court must take them as true unless they are rebutted.

Section 101 BSA: Presumption as to facts of common course of nature, human conduct, etc.

• Relevancy: The Court shall presume that all persons shall continue to exist as long as they are shown to have existed, and until they are shown to have died. It shall also presume that a man who is me who is dead was his death occurred at the time when he was last known to be alive.

• Examples:

  • That a person is dead if they have not been heard of for seven years by those who would naturally have heard of them in the event of their being alive.

  • That judicial and official acts were regularly performed.

  • That the common course of business has been followed.

  • That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

• Rebuttable Nature: While mandatory, these presumptions are generally rebuttable by contrary evidence.

Section 104 BSA: Presumption as to legitimacy of a child born during a marriage

• Relevancy: The Court shall presume that any child born during the continuance of a valid marriage between his mother and any man, and all persons who were begotten by such man and conceived by such woman, were begotten by such man.

• Conclusive Proof: However, this presumption can only be rebutted by strong evidence to the contrary, such as proof that the husband had no access to the mother.

• Purpose: To ensure stability in family relationships and the status of children born within a marriage.

When no presumption can be made

• General Principle: The BSA provides for presumptions in specific situations. Where no specific provision exists for a presumption, and the fact is not proved by direct or circumstantial evidence, no presumption can be made.

• Rebuttal: All "may presume" and "shall presume" facts are rebuttable. If sufficient evidence is presented to contradict a presumption, the presumption will be set aside.

• Court's Discretion: The court does not presume facts arbitrarily; it must be based on the provisions of the BSA or other relevant laws.