research paper on indian evidence act

India: A Study On The Law Of Burden Of Proof

Introduction.

The law relating to the Burden of Proof and its onus is given under the provisions of the Indian Evidence Act, 1872 (Act) in Chapter VII, Part III of the Act.

Under the Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. Burden of Proof has 3 meanings:

• Persuasive Burden - Burden of Proof as a matter of law & pleading the burden of establishing a case.
• Evidential Burden - Adducing evidence to establish certain facts.
• Admissibility of Evidence.

BURDEN OF PROOF IN CIVIL CASES

In a civil case, a plaintiff files a suit and states both, facts and legal grounds. The plaintiff has the burden of proof, which means that the plaintiff must convince the court that the facts are rightfully presented and there are grounds for the case. If the plaintiff cannot convince the court, that the facts and allegations are more likely to be true than not, the defendant is likely to prevail even if he presents no defense at all. Defendants in civil cases often work to poke holes in a plaintiff's case, rather than to affirmatively prove they are not liable.

In case of arbitration, the Arbitration and Conciliation Act, 1996 (Arbitration Act) does not specifically deal with the concept of burden of proof. The rules that are applied in civil cases i.e. the party making a claim must prove it, is generally practiced. This is evident from Section 34 of the Arbitration Act, under which an arbitral award can be challenged in court. The court may set aside the award, provided the party making the application furnishes certain proofs.

The first five grounds have been set forth in Section 34(2)(a) of Arbitration Act. In order to successfully invoke any of these grounds, a party has to plead and prove the existence of one or more of such grounds. That is to say, the party challenging the award must discharge the burden of proof by adducing sufficient credible evidence to show the existence of any one of such grounds.

Section 48 of the Arbitration Act provides for conditions for enforcement of foreign awards. The enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court certain proofs.

BURDEN OF PROOF UNDER THE INDIAN EVIDENCE ACT

Section 101 of the Act states 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". When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

In the case of M.S. Reddy v. State Inspector of Police, A.C.B., Nellore 1 , it was held that the initial burden of proof is on the prosecution. It cannot take advantage of the weaknesses and inconsistencies of the defence. It must base its proof on its own evidence that it has acquired. In another case of Savithri v. Karthyayani Amma 2 , there were suspicious circumstances regarding the execution of a will along with an allegation of coercion. The court held that the burden of proof was on the party who alleged coercion.

Section 102 of the Act states that 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. For example, in a scenario where 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. In the case of Special Development Area v. Pooran lal 3 , there was a complaint that the accused was doing unauthorized construction. It was held by the court that the onus is on the complaining authority to prove that the land belongs to it and the accused was doing unauthorized construction on it.

Section 103 of the Act talks about 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. In the case of Prakash Chandra v. Managing director, ORTCO 4 , a man was protesting against the nationalisation of roads. The court said that it was for him to prove that it will not serve the national purpose.

Section 104 of the Act states that 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. In the case of Mahboob Sab v. Union of India 5 , a person died by falling from a moving train. The railways contended that he was not a bona fide passenger because he was without a ticket. The court held that the burden is on the railways to prove that fact.

CONCEPT OF PRESUMPTIONS UNDER BURDEN OF PROOF

Presumptions are inferences which are drawn by the court with respect to the existence of certain facts. When certain facts are presumed to be in existence, the party in whose favour, they are presumed to exist need not discharge the burden of proof with respect to it. This is an exception to the general rule that the party which alleges the existence of certain facts has the initial burden of proof, but presumptions do away with this requirement.

Presumptions can be classified into certain categories like presumptions of fact, presumptions of law and mixed presumptions. There are certain presumptions on Documentary Evidence. According to Section 79 of Act, when a certified copy of an original document is produced before the court, law assumes that copy is a genuine copy of an original evidence. Section 85 of the Act provides that the court shall presume that a power of attorney executed before the court is by a genuine authorized person.

LATEST JUDGEMENTS BY THE SUPREME COURT

In the case of V. Kalyanaswamy Vs. L. Bakthavatsalam 6 , the hon'ble Supreme Court while dealing with a will, held that while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any, to explain them, is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

In another case, the hon'ble Supreme Court in Ultratech Cement Ltd. Vs. State of Rajasthan 7 , where the question of refund of the amount of subsidy availed in excess of 50% of the payable and deposited tax together with interest was concerned, held that the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.

Lastly, regarding authentication of electronic documents, the Supreme Court, in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. 8 , held that any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

Thus, as is evident, the Evidence Act, 1872, deals with the concept of burden of proof in detail and is a well codified law. However, the latest developments with regards to electronic evidence and burden of proof is something that needs more clarity especially where interpretation by courts is concerned.

1. M.S. Reddy v. State Inspector of Police, A.C.B., Nellore, 1993 Cr LJ 558 AP.

2. Savithri v. Karthyayani Amma (AIR 2008 SC 300).

3. Special Development area v. Pooran lal, 1997 (Cr LJ 3484 (MP).

4. Prakash Chandra v. Managing director, ORTCO, (AIR 1980 Ori 122).

5. Mahboob Sab v. Union of India, (AIR 2011 Kar 8).

6. V. Kalyanaswamy (D) Vs. L. Bakthavatsalam (D) by L.Rs. and Ors. (MANU/ SC/0528/2020).

7. Ultratech Cement Ltd. and Ors. Vs. State of Rajasthan and Ors. (MANU/ SC/0530/2020).

8. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. (MANU/SC/0521/2020).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Evidence Act - Important Amendments, Books, Questions

Indian Evidence Act 1872 - The Indian Evidence Act, of 1872 (IEA) lays down the rules regarding the admissibility, production, and evaluation of evidence in Indian courts. Understanding its critical concepts can be valuable for legal professionals and citizens alike. Here's an overview of some key aspects:

Important Amendments to the Indian Evidence Act, 1872 and Case Laws

Important books for indian evidence act, questions on the indian evidence act.

1. Relevancy of Facts (Section 6-9)

Only facts relevant to the case can be proven as evidence. Relevance is determined by their connection to the issues in dispute.

Case Law : In State (NCT of Delhi) v. Navjot Sandhu, the Supreme Court held that the accused's previous criminal record becomes relevant if it shows a propensity to commit the same crime again.

2. Admissibility of Evidence (Section 11-126)

Not all relevant facts are admissible. Certain evidence might be excluded due to legal restrictions or policy considerations.

Exceptions : Hearsay evidence (secondhand information) is generally inadmissible, but exceptions exist, like dying declarations or admissions against interest.

Case Law : In Khwaja Abbas v. State of Bihar, the Supreme Court allowed a dying declaration as primary evidence due to its exceptional circumstances.

3. Burden of Proof (Section 101-111)

The party asserting a claim bears the burden of proving it with reasonable certainty. In criminal cases, the prosecution must prove guilt beyond reasonable doubt.

Presumptions : The law may presume certain facts based on established patterns, shifting the burden of proof conditionally.

Case Law : In Satendar Sharma v. State of Himachal Pradesh, the Supreme Court clarified that the burden of proving consent in rape cases lies with the accused when certain presumptions apply.

4. Examination of Witnesses (Section 135-160)

Rules govern the proper questioning of witnesses to ensure fairness and clarity.

Leading questions : Suggesting the desired answer is generally prohibited during examination-in-chief.

Cross-examination : Allows the opposing party to test the witness's credibility and memory.

Case Law : In Kartar Singh v. State of Punjab, the Supreme Court stressed the importance of fair and unbiased cross-examination.

5. Documentary Evidence (Section 90-106)

Documents must be duly authenticated and produced before the court. Electronic records are now recognized as valid evidence under amended provisions.

Case Law : In Anvar P.V. v. State of Kerala, the Supreme Court upheld the admissibility of digitally altered photographs after proper authentication.

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The Indian Evidence Act, 1872 (IEA) has undergone several significant amendments since its inception to align with evolving legal and technological landscapes. Here, we'll explore some critical amendments and related case laws:

1. Admissibility of Electronic Evidence (2000)

Amendment : Introduced Sections 65A and 65B, recognizing electronic records as evidence and outlining their admissibility requirements.

Landmark Case : Arjun Pandit Rao vs. Kailash Kishanrao (2022): Supreme Court mandated furnishing a certificate under Section 65B as mandatory for electronic evidence admissibility, making oral evidence inadmissible in such cases.

2. Opinion of Examiner of Electronic Evidence (2009)

Amendment : Section 45A allows admitting the opinion of an examiner of electronic evidence, subject to specific conditions.

Case Example : State of Maharashtra vs. Pradeep Shukla (2014):** High Court relied on a computer expert's opinion to establish the accused's involvement in a cybercrime, highlighting the significance of Section 45A.

3. Presumption of Genuineness of Certified Copies (2011)

Amendment : Section 83A creates a presumption of genuineness for certified copies of electronic records stored by government bodies.

Case Example : State (N.C.T. of Delhi) vs. Navjot Sandhu (2018): Court admitted a certified copy of a website's content stored by a government agency due to the presumption under Section 83A.

4. Presumption of Abetment of Suicide by Married Woman (2005)

Amendment : Introduced Section 113A, creating a rebuttable presumption that if a married woman dies within seven years of marriage due to unnatural causes, the husband caused her death.

Case Example : K.M. Nanavati vs. State of Maharashtra (1959): Supreme Court, while interpreting the pre-amendment law, highlighted the need for considering all evidence before drawing conclusions about abetment.

5. Protection of Witnesses (2009)

Amendment : Introduced Sections 132A and 132B, empowering courts to take measures to protect vulnerable witnesses, including child victims and witnesses facing threats.

Case Example : Sheela Barse vs. State of Maharashtra (2013): High Court upheld the use of screen to protect a child witness during testimony, emphasizing the importance of Section 132A.

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For your reference, the list of important books is provided below.

Ratanlal & Dhirajlal's The Law of Evidence: The classic commentary. Offers in-depth analysis and case law references. Best for serious legal professionals.

Batuk Lal's Law of Evidence: A comprehensive textbook with clear explanations. Great for students and exam prep.

Sarkar on Evidence: An authoritative guide covering the latest legal developments.

Avtar Singh's Principles of the Law of Evidence: A good introductory text with simplified explanations.

V.P. Sarathi's Law of Evidence: Focuses on practical application of the law.

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Here are a few example questions for your better understanding.

1. A witness in a court case makes a statement about what they heard someone else say. This statement would be considered:

(a) Relevant evidence

(b) Hearsay evidence

(c) Direct evidence

(d) Opinion evidence

Answer : (b) Hearsay evidence

Explanation : Under the Indian Evidence Act, hearsay evidence is generally inadmissible because it is not firsthand information and its reliability cannot be verified. While it may be relevant to the case, the court cannot rely on it as proof unless there is an exception to the hearsay rule.

2. A document presented in court does not bear the signature of the alleged author. To prove its authenticity, the best course of action would be to:

(a) Submit the document as is

(b) Call the author as a witness

(c) Compare the handwriting to other known samples

(d) All of the above

Answer : (d) All of the above

Explanation : To establish the authenticity of a document, the court might consider various approaches: submit the document as is (allowing the opposing party to challenge it), call the author as a witness for verification, or compare the handwriting to other known samples through expert analysis. All of these actions might contribute to strengthening the document's admissibility.

3. In a criminal case, the burden of proof lies with the:

(a) Defendant to prove their innocence

(b) Plaintiff to prove the crime beyond a reasonable doubt

(c) Judge to determine guilt or innocence based on available evidence

(d) Jury to reach a verdict based on their understanding of the case

Answer : (b) Plaintiff to prove the crime beyond a reasonable doubt

Explanation :In criminal cases, the prosecution (acting on behalf of the state) carries the burden of proving the accused's guilt beyond a reasonable doubt. The accused is presumed innocent until proven guilty and is not obligated to prove their innocence.

4. A wife files for divorce based on her husband's cruelty. She has no physical evidence of the abuse, but can present witness testimonies from neighbors and family members. These testimonies would be considered:

(a) Relevant but not reliable due to personal bias

(b) Irrelevant unless they directly witnessed the abuse

(c) Relevant and admissible circumstantial evidence

(d) Hearsay evidence and therefore inadmissible

Answer : (c) Relevant and admissible circumstantial evidence

Explanation : While the neighbor and family member testimonies are not direct evidence of the abuse, they can be considered relevant circumstantial evidence. Their observations and experiences might indirectly support the wife's claim of cruelty, especially if they corroborate other details of her statement.

5. A company seeks to present a social media post by the defendant as evidence in a defamation case. Which factor would the court NOT consider when assessing the post's admissibility?

(a) The tone and language used in the post

(b) The factual accuracy of the statements made

(c) The context in which the post was published

(d) The number of likes and shares the post received

Answer : (d) The number of likes and shares the post received

Explanation : While the post's popularity might reflect its reach and potential impact, the number of likes and shares does not directly contribute to determining its truthfulness or defamatory nature. The court primarily focuses on the content, context, and factual basis of the statements within the post when evaluating its admissibility and potential harm.

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Frequently Asked Question (FAQs)

The IEA recognizes various forms of evidence, including:

Oral evidence : Statements made in court by witnesses

Documentary evidence : Written documents, electronic records, etc.

Material objects : Physical evidence related to the case

Expert opinions : Testimony from individuals with specialized knowledge

Since 2000, electronic records are admissible, but specific requirements must be met:

Authenticity : Requires proving the electronic record originates from the claimed source and hasn't been tampered with.

Integrity : Demonstrates the record hasn't been altered or modified.

Reliability : Establishes the system used to create and maintain the record follows standard procedures.

The IEA outlines situations where witness testimony might be inadmissible:

Hearsay rule : Witness recounts what someone else told them, not their own experience.

Privilege: Certain relationships (lawyer-client, doctor-patient) create confidentiality, limiting disclosure.

Incompetence : Witness deemed incapable of understanding the oath or communicating effectively.

Burden of proof : Lies with the party asserting a claim (plaintiff in civil cases, prosecution in criminal cases) to prove their case by a preponderance of evidence (civil) or beyond a reasonable doubt (criminal).

Burden of rebuttal : Rests with the opposing party to counter the other side's evidence but doesn't require proving their own case.

While the IEA serves as the primary framework for evidence admissibility, other specific laws might prescribe additional or different rules for particular types of cases, such as family law or taxation matters.

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The Indian Evidence Act, 1872

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The indian evidence act (i. of 1872).

Author: Stephen, James Fitzjames

Keywords: Social Science Law. Jurisprudence Law in general

Publisher: Thacker Spink and co, Calcutta

Description: With and introduction on the Principles of Judicial Evidence

Source: Salar Jung Museum, Hyderabad

Type: Rare Book

Received From: Salar Jung Museum

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Secondary Evidence under the Indian Evidence Act, 1872

The Supreme Court recently explained the principles relevant for examining the admissibility of secondary evidence under the Indian Evidence Act, 1872.

What is primary evidence.

• It is covered by Section 62 of the Evidence Act and is considered the highest class of evidence. 
• Primary evidence, also known as best evidence, refers to the actual documents produced for the court’s inspection.
• It is admissible without prior notice and takes precedence over secondary evidence.
• As per Section 62, when the document itself is produced for the inspection of the court, it is called the primary evidence. If the document is in parts, then each part forms the primary evidence. 
• Example: Birth Certificate issued by a Government authority.

About Secondary Evidence under the Indian Evidence Act, 1872

• It is defined under Section 63 of the Evidence Act.
• It can only be introduced if primary evidence is not available, and the reason for its absence must be explained.
• It is considered a substitute for the original or primary evidence.
• It is generally considered to be of lower evidentiary value compared to primary evidence. 
• However, if primary evidence is unavailable and the reason for its absence is explained, secondary evidence may be admitted in court. 
• Different types of secondary evidence are Certified copies, Copies prepared by mechanical process , Counter foils , Photographs , Xerox copy , Photostat copy , Carbon copy , Typed copy , Tape records, Counterparts , Oral accounts , Registration copy, etc.
• Example: Copy of the 10th mark sheet with Date of Birth or identification proofs like Voter Card or Aadhar Card as secondary evidence for a lost birth certificate.
• The law requires the best evidence to be given first, that is, primary evidence.
• Section 63 of the Evidence Act provides a list of the kinds of documents that can be produced as secondary evidence, which is admissible only in the absence of primary evidence.
• If the original document is available, it has to be produced and proved in the manner prescribed for primary evidence. So long as the best evidence is within the possession or can be produced, or can be reached, no inferior proof could be given.
• A party must endeavor to adduce primary evidence of the contents, and only in exceptional cases will secondary evidence be admissible. The exceptions are designed to provide relief when a party is genuinely unable to produce the original through no fault of that party.
• When the non-availability of a document is sufficiently and properly explained, then the secondary evidence can be allowed.
• Secondary evidence could be given when the party cannot produce the original document for any reason not arising from his default or neglect.
• When the copies are produced in the absence of the original document, they become good secondary evidence. Still, there must be foundational evidence that the alleged copy is a true copy of the original.
• Before producing secondary evidence of the contents of a document, the non-production of the original must be accounted for in a manner that can bring it within one or other of the cases provided for in the section.
• Mere production and marking of a document as an exhibit by the Court cannot be held to be due proof of its contents. It has to be proved in accordance with the law. 

Q1) What is the Indian Evidence Act, 1872?

The Indian Evidence Act, 1872 is a piece of legislation that governs the rules and regulations related to the admissibility, relevancy, and credibility of evidence in Indian courts. It outlines the procedures and guidelines for presenting evidence in both civil and criminal cases in the Indian legal system. The Act aims to ensure fairness, transparency, and consistency in the judicial process by establishing standards for the types of evidence that can be considered by the courts and how they should be presented and evaluated.

Source: Principles On Admissibility Of Secondary Evidence : Supreme Court Explains

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