DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA
PROJECT TITLE: BURDEN OF PROOF
SUBJECT: EVIDENCE
NAME OF THE FACULTY: MRS. NANDINI C.P
Name of the Can!ate"AMARENDRA #UMAR Ro$$ No.%&'(&') * Seme+te," IVth 1
CERTIFICATE This is to certify that my Project Work Work entitled “BURDEN OF PROOF ” Submitted by Amarendra Kumar is the record of work carried out during semester-! semester-! of second "ear "ear #$A$ %%$#$ &ourse for the academic year '()*-'()+ under my Su,erision and guidance in conformity with the syllabus ,rescribed by .amodaram Sanjiayya /ational %aw 0niersity$ 0niersity$ Place1 !isakha,atnam$ !isakha,atnam$
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AC#NO-LEDEMENT
2irstly3 2irstly3 would like to thank my 4uide and faculty ofcr$,c3 ofcr$,c3 5rs$ /andini &$P for giing g iing an o,,ortunity to undertake this work and successfully accom,lishing the same$ would also like to thank her for her aluable guidance and for being a solency of ins,iration and encouragement enabling the work and to com,lete the work successful$ %ast but not the least would like to thank all the background su,,orts who hae s,ent their aluable time to su,,ort me throughout my ,roject work$ Place1 !isakha,atnam !isakha,atnam
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Re+ea,/h Methoo$o01: .octrinal research methodology has been used$
A!m+ an o23e/t!4e+: 6bjectie of the ,a,er is to find out how res-judicata binds a ,re-litigated matter to be relitigated$
S/o5e an L!m!tat!on+: Sco,e of the ,resent ,a,er is to conce,tualise esto,,el by res-judicata$ While writing the ,a,er the biggest hurdle that the researcher had to face was of unaailability of iews of scholars in the form of articles$
Re+ea,/h 67e+t!on+: hae attem,ted to answer the following 7uestions in the ,resent ,a,er1 •
What is the meaning of legal burden of ,roof 8
•
9ow is the ,rinci,le of burden of ,roof a,,lied in arious legal circumstances8
St1$e of -,!t!n0: This research work has largely descri,tie style of writing$
So7,/e+ of Data: Primary sources in the form of law re,orts and secondary sources in the form of books hae been used to answer the arious research 7uestions and websites$
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Ta2$e of Content+
%iterature reiew$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$: ntroduction$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$; 4eneral &once,t of #urden of Proof$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$+ Proof$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$+ Statutory ,roisions under ndian <idence Act3 )+;'$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ )+;'$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$= $$$= ......................................................... ........................................ ....................................... ........................................... ........................ 9 >ule )..................................... Burden of Proof Proof and Onus of Proof.......................... Proof.............................................. ....................................... ........................... ........10 10 >ule '..................................... ......................................................... ........................................ ....................................... ......................................... ...................... 10 >ule *..................................... ......................................................... ........................................ ....................................... ......................................... ...................... 11 >ule ?1..................................... ......................................................... ........................................ ........................................ ........................................ .................... 11
>ules of Presum,tion @$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ @$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$)) $$$$$$$)) <ce,tions - ..................................... ......................................................... ........................................ .................................................. ................................. ... 12
#urden of ,roof in arious contets$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ contets$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $)* B)C Plea of alibi1 ....................................... ........................................................... ....................................................... .............................................. ........... 13 B'C 2ood Adulteration1 ..................................... ......................................................... ........................................ ......................................... ..................... 14
........................................................... ....................................... ......................................... .....................14 14 B*C
........................................................... ........................................ ........................................ ............................... ........... 15 BDC Ado,tion ....................................... .......................................................... ....................................... ................................. ........................ .......... 15 B;C #lank Signature ...................................... .......................................................... .................................................... ...................................... ...... 16 B+C #enami Transaction Transaction...................................... B=C .e,artmental Proceedings ........................................................................................16
&onclusion$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ &onclusion$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ $$$$$$$$$$$$$$$)+ )+ ##%64>AP9"$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$)+
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L!te,at7,e ,e4!e8 HARVARD LA- REVIE-.9VOL.IV MAY '; '<=&NO. %> THE BURDEN OF PROOF
The burden of ,roof is a ,artyEs res,onsibility to ,roe a dis,uted charge3 allegation3 or defense$ The burden of ,roof has two com,onents1 the burden of ,roduction and the burden of ,ersuasion$ The burden of ,roduction is the obligation to ,resent eidence to the judge or jury$ The burden of ,ersuasion is the duty to conince the judge or jury to a certain standard3 such as beyond a reasonable doubt3 which is defined shortly$ This standard is sim,ly a measuring ,oint and is determined by eamining the 7uantity and 7uality of the eidence ,resented$ “5eeting the burden of ,roof” means that a ,arty has introduced enough com,elling eidence to reach the standard defined in the burden of ,ersuasion$ MERICAN LALA- REISTER9APRI ' THE BURDEN OF PROOF IN CASES OF O F INSANITY
Who has the burden of ,roof with an insanity defense has been a source of controersy$ #efore3 a majority of states had the burden of ,roof rest with the stateF that is3 the ,rosecutor had to ,roe that the defendant was not insane$ The ast majority of states re7uired the defense to ,roe that the defendant was indeed insane$ n states where the burden is on the defense to ,roe insanity3 the defense is re7uired to show either by clear and conincing eidence or by a ,re,onderance of the eidence that the defendant is insane$ n states where the burden is still on ,rosecutors to ,roe sanity3 they are re7uired to ,roe it beyond a reasonable doubt$ The B7,en of P,oof P,e5a,e 21 JAC# LA@ARUS A7+t,a$!a fo, the meet!n0 of Comm!ttee ) at the L!+2on Confe,en/e Ma1 '=<' 9Inte,nat!ona$ Le0a$ P,a/t!t!one, '=<' Vo$. )9!!> P,!nte !n ,eat B,!ta!n >
The cam,aign in Australia against drug related crimes3 heroin in ,articular3 has the result that ,eo,le charged with trafficking or im,orting heroin are inariably conicted$ The burden of ,roof3 being so well entrenched in the minds of not only Gurists brought u, in the &ommon %aw traditions3 but the ,eo,le at large3 is hard to o,enly attack$ The sanctity of 5ens >ea or the objectie standard of morality as an essential element of crime at &ommon %aw3has been weakened in recent years$ /eertheless it has3 for long ,ast3 been firmly established as a cardinal feature of the &riminal %aw$
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B7,en of P,oof 21 Lo7!+ #a5$o8 This Article eamines how strong eidence should hae to be in order to assign liability when the
objectie is to maimiHe social welfare$ n basic settings3 there is a tradeoff between deterrence benefits and chilling costs3 and the o,timal ,roof re7uirement is determined by factors that are almost entirely distinct from those underlying the ,re,onderance of the eidence rule and other tradit traditiona ionall standar standards$ ds$ As a conse7 conse7uenc uence3 e3 these these famili familiar ar burden burden of ,roof ,roof rules rules hae some some sur,ri sur,risin sing g ,ro,er ,ro,ertie ties3 s3 as do altern alternati atie e criter criteria ia that hae been been adanced adanced$$ The Article Article also also considers how setting the ,roof burden interacts with other features of legal system design3 such as the determination of enforcement effort and the degree of accuracy of adjudication$
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Int,o7/t!on A duty ,laced u,on a ciil or criminal defendant to , roe or dis,roe a dis,uted fact)$ #urden of ,roof can define the duty ,laced u,on a ,arty to ,roe or dis,roe a dis,uted fact3 or it can define which ,arty bears this burden$ n criminal cases3 the burden of ,roof is ,laced on the ,rosecution3 who must demonstrate that the defendant is guilty before a jury may conict him or her$ #ut in some jurisdiction3 the defendant has the burden of establishing the eistence of certain facts that gie rise to a defense3 such as the insanity ,lea$ n ciil cases3 the ,laintiff is normally charg charged ed with with the burden burden of ,roof3 ,roof3 but the defend defendant ant can be re7uir re7uired ed to establ establish ish certain certain defenses'$ #urden of ,roof can also define the burden of ,ersuasion3 or the 7uantum of ,roof by which the ,arty with the burden of ,roof must establish or refute a dis,uted factual issue$ n criminal cases3 the ,rosecution must ,roe the defendantIs guilt #e yond a >easonable .oubt$
ene,a$ Con/e5t of B7,en of P,oof
The res,onsibility to ,roe a thing is called burden of ,roof$ When a ,erson is re7uired to ,roe the eistence or truthfulness of a fact3 he is said to hae the burden of ,roing that fact$ n a case3 many facts are alleged and they need to be ,roed before the court can base its judgment on such facts$ The burden of ,roof is the obligation on a ,arty to establish such facts in issue or releant facts in a case to the re7uired degree of certainty in order to ,roe its case$ 2or eam,le3 in a case of murder3 ,rosecution may allege that all the conditions constituting a murder are fulfilled$ All such conditions are facts in issue and there is an obligation to ,roe their eistence$ This obligation is a burden of ,roof$ n general3 eery ,arty has to ,roe a fact that goes in his faor or against his o,,onent3 this obligation is nothing but burden of ,roof$ Section )() defines 1 Dr. V. Krishnamachari, Law of Evidence, (7 th ed ,S.Gogia &Co., Hdera!ad, "#$#% /roof.) 0he Los 2 Schei!e, en'amin D. "##. )C*aim of +everse Engineering Doesnt -*ter rden of /roof.) -nge*es Dai* 1orna* 1orna* $$2 $$2 (3cto!er "%.
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burden of ,roof as follows - When a ,erson is bound to ,roe the eistence of any fact3 it is said that the burden of ,roof lies on that ,erson$ The im,ortant 7uestion is who is su,,osed to ,roe the arious facts alleged in a case$ n other words3 on whom should the burden of ,roing a fact lie8 The rules for allocation of burden of ,roof are goerned ,rimarily by the ,roisions in Section )() to )(:$ The rules ,ro,ounded by these sections can be categoriHed as 4eneral rules and S,ecific rules$
Stat7to,1 5,o4!+!on+ 7ne, In!an E4!en/e A/t '
R7$e '1 As ,er Section )()3 s,ecifies the basic rule about who is su,,osed to ,roe a fact$ t says
that whoeer desires any &ourt to gie judgment as to any legal right or liability de,endent on the eistence of facts which he asserts3 must ,roe that those facts eist *$ 2or eam,le3 A desires a &ourt to gie judgment that # shall be ,unished for a crime which A says # has committed$ A must must ,roe ,roe that # has committ committed ed the crime$ crime$ Anoth Another er eam,le eam,le - A desire desiress a &ourt &ourt to gie gie judgment that he is entitled to certain land in the ,ossession of #3 by b y reason of facts which he asserts3 and which # denies3 to be true$ A must ,roe the eistence of those facts$ 2acts can be ,ut in two categories - those that ,ositiely affirm something and those that deny something$ 2or eam,le3 the statement3 JA is the owner of this landJ is an affirmatie statement3 while J# is not the owner of this landJ is a denial$ The rule gien in Section )() means that the ,erson who asserts the affirmatie of an issue3 the burden of ,roof lies on his to ,roe it$ Thus3 the ,erson who makes the statement that JA is the owner of the landJ3 has the burden to ,roe it$ This rule is useful for determining the ownershi, of the initial burden$ Whoeer wishes the court to take certain action against the o,,osite ,arty based on certain facts3 he ought to first ,roe those facts$
/!*ications, -**aha!ad -**aha!ad "##7% 3 Singh -vtar, /rinici4*es of the Law of Evidence, (5 th ed, Centra* Law /!*ications,
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9oweer3 it is not ery sim,le to categoriHe a fact as asserting the affirmatie$ 2or eam,le3 in the case of Soward vs Legatt 63 )+*D3 a landlord suing the tenant asserted that the tenant did not re,air the house$ 9ere3 he was asserting the negatie$ #ut the same statement can also be said affirmatiely as the tenant let the house dila,idate$ n this case3 %ord A#/4<> obsered that in ascertaining which ,arty is asserting the affirmatie the court looks to the substance and not the language used$ %ooking at the substance of this case3 the ,laintiff had to ,roe that the ,remises were not re,aired$ Thus3 the court should arrie at the substance of the issue and should re7uire that ,arty to begin who in substance3 though may ma y not be in form3 alleges the affirmatie of the issue$ Burden of Proof and Onus of Proof
The term #urden of Proof is used in two difference senses - the burden of ,roof as a matter of law and ,leading3 and the burden of ,roof as a matter matter of adducing adducing eidence also called as onus$ There is a subtle distinction between burden of ,roof and onus of ,roof3 which was e,lained in the case of +anchhod!hai of +anchhod!hai vs a!!hai$ The first one is the burden to to ,roe the main contention of ,arty re7uesting the action of the court3 while the second one is the burden to ,roduce actual eidence$ eidence$ The first first one is constant and is always always u,on the claimant but the second one shifts to the other ,arty as and when one ,arty successfully ,roduces eidence su,,orting its case$ 2or eam,le3 in a case where A is suing # for ,ayment of his serices3 the burden of ,roof as a matter of law is u,on A to ,roe that he ,roided serices for which # has not ,aid$ #ut if # claims that the serices were not u, to the mark3 the onus of burden as to adducing eidence shifts to # to ,roe the deficiency in serice$ 2urther3 if u,on ,roiding such eidence3 A claims that the serices were ,roided as negotiated in the contract3 the onus again shifts to A to ,roe that the serices meet the 7uality as s,ecified in the contract$$
4 Soward vs Legatt, $52 5 -8+ $95" G' #5 10
R7$e %1 .etermines who has the onus of ,roof $As ,er Section )('3 the burden of ,roof in a suit
or ,roceeding lies on that ,erson who would fail if no eidence at all were gien on either side$ The following illustrations e,lain this ,oint llustration )1 A sues # for land of which # is in ,ossession3 and which3 as A asserts3 was left to A by the will of &3 #Is father$ f no eidence were gien on either side3 # would be entitled to retain his ,ossession$ Therefore the burden of ,roof is on A$ llustration '1 A sues # for money due on a bond$ The eecution of the bond is admitted3 but # says that it was obtained by fraud3 which A denies$ f no eidence were gien on either side3 A would succeed3 as the bond is not dis,uted and the fraud is not ,roed$ Therefore the burden of ,roof is on #$
R7$e (1
As ,er Section )(*3 the ,erson who wants the court to beliee in an alleged fact is the one who is su,,osed to ,roe that fact unless it is ,roided by any law that the ,roof of that fact shall lie on any ,articular ,erson$ 2or eam,le3 A ,rosecutes # for theft3 and wishes the &ourt to beliee that # admitted the theft to &$ A must ,roe the admission$ Another Another eam,le - # wishes the &ourt to beliee that3 at the time in 7uestion3 he was elsewhere$ 9e must ,roe it$ 2urther3 as s,ecified in Section )(?3 if a ,erson wants the court to beliee in a fact that assumes the eistence of another fact3 it is u, to the ,erson to ,roe the other fact also$ 2or eam,le3 A wishes to ,roe a dying declaration by #$ A must ,roe #Is death$ A wishes to ,roe3 by secondary secondar y eidence3 the contents of a lost document$ A must must ,roe that the document has been lost$
R7$e :
These rules s,ecifically ,ut the burden on ,roing certain facts on ,articular ,ersons $ As ,er Section )(D3 when any fact is es,ecially within the knowledge of any ,erson3 the burden of ,roing that fact is u,on him$ When a ,erson does an act with some intention other than that 11
which the character and circumstances of the act suggest3 the burden of ,roing that intention is u,on him$ 2or eam,le3 A is charged with traeling on a railway without a ticket$ The burden of ,roing that he had a ticket is on him$ him$D
R7$e+ of P,e+7m5t!on
Section )(; and )(+ say that if a ,erson was known to be alie within *( years the ,resum,tion is that he is alie and if the ,erson has not been heard of for seen years by those who hae naturally heard from him if he had been alie3 the ,resum,tion is that the ,erson is death$ #ut no ,resum,tion can be draw d raw as to the time of death$ Sections S ections )(= establishes the burden in case of some relations such as landlord and tenant3 ,rinci,le and agent etc$ 2urther sections s,ecify the rules about burden of ,roof in case of terrorism3 dowry death3 and ra,e$
E/e5t!on+ " '. P,e+7me Inno/en/e : t is the ,rosecution who is re7uired to establish the guilt of the
accused without any doubt$ At the same time3 the accused is not re7uired to ,roe his innocence without any doubt but only has to create reasonable doubt that he may not be guilty$ guilty$ Section )(: s,ecifies an ece,tion to this general rule$ When an accused claims the benefit of the 4eneral <ce,tion clauses of P&3 the burden of ,roing that he is entitled to such benefit is u,on him$ 2or eam,le3 if an accused claims the benefit of insanity in a murder trial3 it is u, to the accused to ,roe that he was insane at the time of committing the crime$ n the case of K of K : ;anavati vs State of :aharashtra7 3 S& e,lained e,lained this this ,oint$ ,oint$ n this case3 /anaati was accused of murdering Prem Ahuja3 his wifeIs ,aramour3 while /anaati claimed innocence on account of grae and sudden ,roocation$ The defenceIs claim was that when /anaati met Prem at the latterIs bedroom3 Prem had just come out of the bath dressed only in a towelF an angry /anaati swore at Prem and ,roceeded to ask him if he intends to marry Sylia 6 http://hanumant.com/O!"#n$t11"BurdenOfProof.htm% 7 &'( 1962 )* 605 12
and look after his children$ Prem re,lied3 JWill marry eery woman slee, with8J3 which further enraged /anaati$ Seeing Prem go for the gun3 enclosed in a brown ,acket3 /anaati too went for it and in the ensuing scuffle3 PremIs hand caused the gun to go g o off and instantly kill him$ 9ere3 S& held that there is a ,resum,tion of innocence in faor of the accused as a general rule and it is the duty of the ,rosecution to ,roe the guilt of the accused beyond any doubt$ #ut when an accused relies u,on the general ece,tion or ,roiso contained in any other ,art of the Penal &ode3 Section )(: of the <idence Act raises a ,resum,tion against the accused and also throws a burden on him to rebut the said ,resum,tion$ Thus3 it was u,on the defence to ,roe that there eisted a grae and sudden ,roocation$ n absence of such ,roof3 /anaati was conicted of murder$
%. Am!++!on: A fact which has been admitted by a ,arty and which is against the interest of that
,arty3 is held against the ,arty$ f the fact is co ntested by the ,arty3 then the burden of ,roof , roof rests u,on the ,arty who made the admission$ 2or eam,le3 A was recorded as saying that he committed theft at the said ,remises$ f A wants to deny this admission3 the burden of ,roof rests on A to ,roe so$+
(. P,e+7m5t!on+: &ourt ,resumes ,resumes the eistence eistence of certain things$ things$ 2or eam,le3 eam,le3 as ,er Section
)(;)(+3 court ,resumes that a ,erson is dead or alie based on how long he has not been heard of$ Section )(=3 ,resumes that when two ,eo,le hae been acting as ,er the relationshi, of landlord - tenant3 ,rinci,le - agent3 etc3 such relationshi, still eists and anybody who contends that such relationshi, has ceased to eist has to ,roide ,roof$ Section ))( ,resumes that the ,erson who has the ,ossession of a ,ro,erty is the owner of that ,ro,erty$ As ,er Section ))*A3 When the 7uestion is whether the commission of suicide by a woman had been abetted by her husband husband or any relatie of her husband and it is shown that she had committed committed suicide within a ,eriod of seen years from the date of her marriage and that her husband or such relatie of her husband had subjected her to cruelty3 the court may ,resume3 haing regard to all the other 8 C.L. S!ramaniam 4. Co**ector of Cstoms, -8+ $97" SC "$75 13
circumstances of the case3 that such suicide had been abetted by her husband or by such relatie of her husband=$ As ,er Section ))*#3 when the 7uestion is whether a ,erson has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such ,erson to cruelty or harassment for3 or in connection with3 any demand for dowry3 the court shall ,resume that such ,erson had caused the dowry death$Thus3 when the ,resum,tion of the court is in faor of a ,arty3 the burden of dis,roing d is,roing it rests on the o,,osite ,arty$
B7,en of 5,oof !n 4a,!o7+ /ontet+
9'> P$ea of a$!2!:
Where Where the accused accused raises raises the ,lea ,lea of alibiB alibiBhis his ,resence ,resence elsewh elsewhere ereCC burden burden lies lies on him to substantiate that fact that at least to that etent of a reasonable ,robability$ <en if the eidence ,roduced is ca,able of creating a doubt whether the accused was there at the time of the ha,,ening3 he becomes entitled to benefit of doubt$)( The court cited the decision of Su,reme &ourt in Soma hai v. State of G'rat $$ where it was taken to be a settled law that a ,lea of alibi has got to be ,roed to the satisfaction of the court$ The court also noted that the burden of substantiating such a ,lea and making it reasonably ,robable is on him$ 9%> Foo A7$te,at!on:
Where a ,erson is charged under Preention of 2ood Adulteration Act3)=:? for selling substandard Heeng, standard Heeng, and and it was shown by him that the article was meant for animal consum,tion3 the ,ricing factor as well as re,ort of the ,ublic anal yst showed that it was being marketed for use of animals3 the court said that the burden to show otherwise was u,on the food ins,ector who had taken the sam,le from the accused)'$
v. /residing /residing 3fficer & 3rs., 3rs., -8+ $95 SC $$"$ $$"$ 9 -ni* Kmar v.
10 1agarnath giri v State of ihar, $99" CrL1 265 /at. 11 -8+ $97 SC $6 14
9(> E$e/t!on Pet!t!on:
When an election is challenged on the ground that the result was itiated by the fact that the nomination nomination of a candidate wrongly wrongly acce,ted3 the Su,reme Su,reme &ourt held that the burden lay u,on the ,etitioner that the otes cast on faour of the wrongly acce,ted candidate would hae gone his faour to such an etent that he would hae been returned and that though this fact is ery difficult difficult to ,roe the rules relating relating to burden of ,roof will remain remain whether it is difficult difficult or irtually im,ossible to ,roe the fact in 7uestion)*$ 9> Con+t!t7t!ona$!t1:
n the ,etiti ,etition on challen challengin ging g the consti constitut tution ionali ality ty of a statut statute3 e3 the allegat allegation ionss regard regarding ing the iolation of the constitutional ,roisions should be s,ecific3 clear and unambiguous and burden of ,roof is u,on the ,erson challenging challenging its constitutio constitutionality nality$$ n the case of Gari Shan
Mat,!mon!a$ Ca+e+:
n matrimonial cases ,rinci,le of burden of ,roof relating to ciil cases are a,,licable ):$ >ules of eid eidenc encee in dior diorce ce case casess are are the the same same in othe otherr cii ciill matt matter ers3 s3 name namely ly33 deci decisi sion onss go by 12 +a'esh Kmar v. State of =/, "##$ CrL1 "#9(-**% 13 Shiv Charan Singh v. Chandra han Singh, -8+ $955 SC 27 14 $996 -8+ SC> 6#9 15
,re,onderance of ,robability ,robab ility$$ #ut een so the initial burden is on the ,etioner$ A ,arty seeking diorce has to ,roe the fact that the same was without cause3 een if the ,arty going a,art is not liable to justify her conduct$ t is the duty of the husband to ,ay for the medical eamination of the wife and if she did not get costly medical aid for wants of funds3 no aderse inference could be drawn against aga inst her )D$ n the instant instant case the husband husband sought diorce diorce on the ground ground of mental disorder of the wife$ 9)> Ao5t!on
An onus of grae and serious matter lies on the ,erson who alleges ado,tion because the fact of ado,ti ado,tion on changes changes rights rights of succes successi sion on to ,ro,er ,ro,erty ty);$
Wher Wheree there there was no eid eiden ence ce about about
consultation between natural and ado,tie fathers3 no material witness were eamined and there was inconsistency about the ceremonies ,erformed3 the ado,tion was held to be doubtful d oubtful)+$ 9?> B$an S!0nat7,e
Where the defendants said that he had ,ut his signature only on the blank ,a,er3 it was held that the eidence adduced by the ,laintiff to the effect that the defendant has eecuted a document3 if found reliable3 would discharge the burden of the ,laintiff and ,ut the burden on the defendant to show that he has not eecuted any document)=$ 9<> Benam! T,an+a/t!on
When a ,erson ,urchases a ,ro,erty in another ,ersonEs name and also gets it registered in that ,ersonEs name 3 if subse7uently he wishes to assert his ownershi,3 the burden would be u,on him to ,roe that fact$ n case of this kind3 the Su,reme &ourt obsered as follows1
15 - v. , -8+ $95 G' $"$ 16 +e
“t is well settled that burden of ,roing that ,articular sale is !enami and the a,,arent ,urchaser is not the real owner3 always rests on the ,erson asserting it to be so$ The essence of a !enami is !enami is the intention of the ,arties concernedF and not often such intention is shrouded in a thick eil which cannot be easily ,ierced through$ #ut such difficulties do not reliee the ,ersons asserting the transaction to be a !enami of !enami of the serious onus that rests on him3 nor justify the acce,tance of a mere conjecture or surmises3 as a substitute for ,roof$” 9=> De5a,tmenta$ P,o/ee!n0+
<aluation of eidence is a judicial ,rocess and arbitrariness is surely not allowed$ Although the ndian <idence Act is not a,,licable in the de,artmental ,roceedings3 its ,roisions hae to be noticed noticed during ealuation ealuation of eidenceF eidenceF albeit not with the same rigour as done in courts courts of law$ law$ The Su,reme &ourt obsered in =nion of 8ndia v. HC Goe* "# that “mere sus,icion should not be allowed to take ,lace of ,roof een in domestic in7uiries” and also that “the ,rinci,le that in ,unishing the guilty scru,ulous care must be taken to see that the innocent are not ,unished3 a,,lies as much to regular criminal trials as to disci,linary in7uiries$” n State of Harana v. +attan Singh"$3 the Su,reme &ourt &ourt stated thatF “The essence of a judicial ,rocess is objectiity3 eclusion of etraneous materials or considerations and obserance of rules of natural justice$ 6f course3 fair ,lay is the basis and if ,erersity or arbitrariness3 bias or surrender of inde,endence of judgement itiate the conclusions reached3 such finding3 een though of a domestic tribunal3 can not be held good$” The following established norms and ,rinci,les are ,racticed in de,artmental in7uiries to a,,reciate and ealuate eidences$ '. In7!,1 ,e5o,t m7+t 2e 2a+e on ,e/o,+ of the /a+e a$one.
The deliberations in the re,ort must remain confined to the records of in7uiry which consist of the &harge-sheet3 >e,ly thereto3 6riginal documents relied u,on by ,rosecution as well as defence3 written briefs filed by both ,arties summing u, their res,ectie cases in their own way3 de,ositions of witnesses ,roduced by both sides3 statement of charge-sheeted em,loyee and his answers to 7uestions ,ut by in7uiry officer$ n7uiry officer can neither leae out anything from 20 -8+ $926 SC 26 21 -8+ $977 SC $$" 17
these records nor can consider anything out of the records$ All ,ublic serants can claim the constitutional guarantee ,roided to ciil serants under article **) that any ,enalty can be im,osed only on the basis of eidence adduced during the course of in7uiry$ %. Mate,!a$ /o$$e/te 2eh!n the 2a/ of a//7+e /an not 2e 7+e 21 In7!,1 Off!/e,.
Su,reme &ourt has clearly held in State of -ssam v. :K Das"" and =nion of 8ndia v. +am?an
n7uiry 6fficer 6fficer cannot use use his ,ersonal knowledge knowledge of the case or of ,ersons inoled$ inoled$ 9is findings must be free from ,ersonal bias$ . A++e++ment !+ to 2e mae on$1 of the 5o!nt+ at !++7e. ;. The 27,en of 5,oof !+ on the em5$o1e, $
The 6rissa 6rissa 9igh &ourt3 &ourt3 in +adha
related to the ersion of em,loyee are also ,roedF the final findings shall be arried using the ,re,onderance of ,robability standard of ,roof a,,licable for such in7uiries$ D$ 4uilt is not there if charges not ,roed$ n kee,ing with The Su,reme &ourt obseration in =nion of 8ndia v. HC Goe* " that that the ,rinci, ,rinci,le le of taking taking care so that the the innocent innocent are not ,unished3 a,,lies to disci,linary in7uiriesF the in7uiry officer cannot re,ort finding of guilt if the burden of ,roof has not been discharged by the ,rosecution and the articles of charge hae not been ,roed in accordance with the standard of ,roof re7uired in such in7uiry$
Con/$7+!on The burden of ,roof lies on the ,arty who substantially asserts the affirmatie of the issue and not u,on the ,arty who denies it$ This rule of conenience has been ado,ted in ,ractice3 not because it is im,ossible to ,roe a negatie but because the negatie does not admit of the direct and sim,le ,roof of which the affirmatie is ca,able$ t means so metimes that that a ,arty is re7uired to ,roe an allegation before judgment can be gien in its faourF it also means that on contested issue one of the two contending ,arty has to introduce eidence.
BIBLIOGRAPHY
Books Referred:
)C .r$ !$ !$ Krishnamachari3 Krishnamachari3 %aw of <idence3 B9yderabad1 S$4ogia M&o$C3 '()( 'C Singh Atar3 Atar3 Prinici,les of the %aw of <idence3 BAllahabad 1 &entral %aw PublicationsC3 '((; *C .hiraj %al M >atanlal3 The%aw of <idence3B/ag,ur 1 Wadhwa Wadhwa M &om,anyC3 '((+ WEBSITES:
25 -8+ $926 SC 26 19
1) www.manupatra.com 2) www.heinonline.com ) www.westlawindia.com !) www.indiankanoon.com
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