Burden of Proof in Civil and Criminal Cases under the Evidence Act, 1872
Introduction
The burden of proof is one of the fundamental principles of evidence law. Under the Evidence Act, 1872, it refers to the legal responsibility of a party to establish the truth of a fact, claim, right, liability, or circumstance upon which that party seeks a decision or relief from the court.
The basic principle is simple: the person who asserts the existence of a fact and seeks a legal consequence on the basis of that fact generally bears the burden of proving it.
The principal statutory provisions concerning the burden of proof are contained in Sections 101, 102, 103 and 105 of the Evidence Act, 1872.
1. Section 101 — The Basic Principle of Burden of Proof
Section 101 lays down the fundamental rule regarding the burden of proof. Where a person asks the court to give judgment as to a legal right or liability that depends upon the existence of certain facts asserted by that person, that person must prove the existence of those facts.
In other words, the party who makes a claim must generally establish the facts necessary to support that claim.
Example: Suppose A claims that B owes him Tk. 500,000. If A approaches the court seeking a decree for recovery of that money, A must initially prove that B is actually liable to pay him Tk. 500,000.
2. Section 102 — On Whom Does the Burden Lie?
Section 102 provides a practical test for determining who bears the burden of proof.
The burden lies on the party who would fail if no evidence were produced by either side.
Thus, if both parties remain silent and produce no evidence, the party who would ultimately lose the case bears the initial burden of proof.
3. Section 103 — Burden of Proving a Particular Fact
Section 103 deals with the burden of proving a specific or particular fact.
Where a person wishes the court to believe in the existence of a particular fact, the burden of proving that fact rests upon that person, unless the law provides otherwise.
Example: Suppose A claims that B was present at a particular place on a particular date. If A relies on B's presence at that place and time to establish an essential part of his case, A bears the burden of proving that particular fact.
However, where another law specifically places the burden of proving a fact upon a particular person, that statutory provision will prevail.
4. Section 105 — Burden of Proving Exceptions in Criminal Cases
Section 105 is particularly significant in criminal proceedings.
Where an accused claims that his or her case falls within a General Exception or Special Exception under the Penal Code, the burden of proving the circumstances bringing the case within that exception rests upon the accused.
For example, if an accused claims that, at the time of the alleged offence, he or she was in a mental condition that attracts a relevant exception under the Penal Code, the accused may be required to establish the circumstances supporting that exception.
However, this does not mean that the prosecution is relieved of its primary obligation to prove the essential ingredients of the offence. The prosecution must still establish the elements of the offence charged according to law.
Burden of Proof in Civil Cases
In civil litigation, one of the fundamental principles is:
He who asserts must prove.
Where a plaintiff claims a legal right, ownership, money, contractual entitlement, possession, or any other relief, the plaintiff generally has to establish the essential facts necessary to support that claim.
Plaintiff Must Succeed on the Strength of His Own Case
An important principle of civil litigation is that a plaintiff must ordinarily succeed on the strength of his own case, rather than merely on the weakness of the defendant's case.
Therefore, the fact that the defendant has failed to produce sufficient evidence does not, by itself, establish the plaintiff's claim. The plaintiff must independently prove the facts necessary to obtain the relief sought.
Standard of Proof in Civil Cases
The usual standard of proof in civil proceedings is the preponderance of probabilities.
The court considers the evidence as a whole and determines which version is more probable or more convincing in light of the circumstances and evidence presented by the parties.
Burden of Proof in Criminal Cases
In criminal proceedings, the general rule is that the prosecution bears the burden of proving the charge.
The prosecution must establish, through legally admissible and sufficient evidence, that the accused committed the offence and that all the essential ingredients of the offence have been established.
An accused person is generally not required to prove his or her innocence. The fundamental principle of criminal justice is that an accused is presumed innocent unless and until guilt is established according to law.
Standard of Proof in Criminal Cases
The prosecution generally has to prove the charge beyond reasonable doubt.
If the prosecution evidence leaves a genuine and reasonable doubt concerning the commission of the offence or an essential element of the charge, that doubt operates in favour of the accused.
Thus, the standard of proof in criminal cases is considerably higher than the standard ordinarily applied in civil proceedings.
Burden of Proof and Onus of Proof: What Is the Difference?
Although the terms Burden of Proof and Onus of Proof are closely related, they are not necessarily identical in every context.
Burden of Proof
Burden of proof refers to the legal responsibility of a party to establish a claim or essential fact necessary for obtaining a judgment or legal consequence.
It is generally determined by the substantive issues raised in the case and the applicable law.
Onus of Proof
Onus of proof generally refers to the obligation to produce evidence at a particular stage of the proceedings.
Unlike the ultimate burden of proof, the onus may shift from one party to another as evidence is produced.
Example: Suppose a plaintiff initially produces sufficient evidence supporting his claim. The evidentiary onus may then shift to the defendant to rebut that evidence or establish a defence.
Therefore, while the burden of proof represents the underlying legal responsibility, the onus of proof may shift during the course of litigation depending on the evidence produced.
Important Decisions of the Supreme Court of Bangladesh
1. Ajufannessa @ Aji Bibi and Others v. Safar Miah and Others, 30 DLR (AD) 41 (1978)
In this case, the Appellate Division considered principles relating to the proof of facts and documents under the Evidence Act.
The decision illustrates the importance of properly establishing facts and documentary evidence before the court. A document being marked as an exhibit does not necessarily mean that every aspect of its contents has automatically been proved.
2. Abul Kashem v. State, 42 DLR 37
The case emphasizes the prosecution's responsibility in criminal proceedings.
The prosecution must prove the necessary ingredients of the offence with legally admissible evidence. A mere allegation or accusation does not amount to proof.
Accordingly, the prosecution must establish its case in accordance with the required standard of proof rather than relying merely upon the existence of a criminal charge.
3. Shah Sufi Taj Islam v. Begum Rokeya Chowdhury & Another, 9 BLT (AD) 62
This decision is relevant to the principles concerning onus of proof under Section 101 of the Evidence Act and questions relating to relationships involving confidence or influence.
Where the circumstances of a transaction raise issues concerning good faith or undue influence, the applicable rules of evidence may determine upon whom the evidentiary responsibility falls.
The case also illustrates that where a matter has been admitted by the opposing party, the party relying upon that admission may not be required to prove the admitted fact in the same manner as a disputed fact.
Key Takeaways
The person who asserts a fact generally bears the burden of proving it.
Section 101 establishes the basic statutory rule regarding burden of proof.
Section 102 places the burden on the party who would fail if no evidence were produced by either side.
Section 103 places the burden of proving a particular fact upon the person who wishes the court to believe in its existence, subject to any contrary statutory provision.
Section 105 places a specific burden upon an accused who relies upon a statutory exception.
In civil cases, the usual standard is the preponderance of probabilities.
In criminal cases, the prosecution generally must prove the charge beyond reasonable doubt.
A plaintiff cannot ordinarily succeed merely because the defendant's case is weak; the plaintiff must establish his own case.
The ultimate burden of proof and the evidentiary onus are related but distinct concepts.
The onus of producing evidence may shift during the proceedings, depending on the evidence already produced and the issues raised.
Conclusion
The doctrine of burden of proof is central to both civil and criminal adjudication. Sections 101, 102, 103 and 105 of the Evidence Act, 1872 provide the basic statutory framework for determining who must establish a particular fact and, in certain circumstances, how that responsibility operates.
In civil proceedings, the court generally determines the dispute on the preponderance of probabilities, whereas in criminal proceedings the prosecution ordinarily carries the heavier burden of proving guilt beyond reasonable doubt.
Ultimately, the rules governing burden and onus of proof ensure that judicial decisions are based not merely on allegations, but on facts established through legally relevant and admissible evidence.
References
The Evidence Act, 1872 (Act No. I of 1872) — particularly Sections 101, 102, 103 and 105.
The Penal Code, 1860 (Act No. XLV of 1860) — provisions relating to General Exceptions.
Ajufannessa @ Aji Bibi and Others v. Safar Miah and Others, 30 DLR (AD) 41 (1978).
Abul Kashem v. State, 42 DLR 37.
Shah Sufi Taj Islam v. Begum Rokeya Chowdhury & Another, 9 BLT (AD) 62.
Bangladesh Supreme Court, reported decisions concerning burden and onus of proof under the Evidence Act, 1872.
Laws of Bangladesh, The Evidence Act, 1872, Sections 101–105.
BD Law Post/Masum
