Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Proof Modes of Proof and Burden of Proof

Proof under the Bharatiya Sakshya Adhiniyam, 2023: Meaning of Proved, Disproved and Not Proved, Modes of Proof and Burden of Proof

Evidence is what a party places before the court; proof is the effect that evidence produces in the judicial mind. The two are constantly confused, and the confusion matters, because a fact may be fully in evidence and still remain unproved. The Adhiniyam defines proof in Section 2(1)(j) by reference to the conduct of a prudent man, identifies the facts that need no proof at all in Sections 51 to 53, and allocates the obligation of proving in Sections 104 to 120.

1. Meaning of Proof

Proof, in the language of the Adhiniyam, is a state of the judicial mind produced by the material before the court. It is not a quality of the evidence itself, and it is not a mathematical demonstration. The English word derives from the Latin probare, to test or to prove, and the older sense of testing survives in the statutory formula, which asks not whether the court is certain but whether a prudent person would act upon the supposition that the fact exists.

Evidence

Proof

Nature

The material placed before the court

The effect produced in the mind of the court by that material

Defined in

Section 2(1)(e)

Section 2(1)(j)

Belongs to

The parties, who tender it

The court, which draws the conclusion

Stage

During the trial, as the material is tendered

At the conclusion, when the court assesses the whole of the material

Relationship

The instrument

The result

📖 Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532

Held: The word 'evidence' is used in common parlance in three senses — as equivalent to relevant, as equivalent to proof, and as equivalent to the material on which the court acts in reaching its conclusion. The statutory definition adopts the third sense.

Ratio: Evidence is the instrument of proof and not proof itself. A fact may be in evidence and yet remain unproved.

2. Proved, Disproved and Not Proved

Sections 2(1)(j), 2(1)(c) and 2(1)(i), BSA

A fact is said to be 'proved' when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

A fact is said to be 'disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

A fact is said to be 'not proved' when it is neither proved nor disproved.

2.1 The five elements of the definition

  1. 'After considering the matters before it'. The court considers the whole of the material and not merely the evidence led by one side. The expression 'matters before it' is deliberately wider than 'evidence', and takes in admissions, judicially noticed facts, presumptions, the demeanour of witnesses and the result of a local inspection.
  2. 'Either believes it to exist, or considers its existence so probable'. Two alternative routes to proof are provided. The first is actual belief; the second is a judgment of probability. Absolute certainty is not required by either.
  3. 'A prudent man'. The standard is objective. The question is not what the individual judge is personally persuaded of, but what a reasonable and prudent person, applying ordinary judgment to the affairs of life, would act upon.
  4. 'Ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Proof is measured by the willingness to act, not by philosophical certainty. The words 'under the circumstances of the particular case' are what permit the degree of assurance to vary between a criminal trial and a civil suit, although the statutory definition is common to both.
  5. The definition is exhaustive of the three possible states. A fact is proved, disproved, or not proved. There is no fourth category.

2.2 The three states compared

Proved

Disproved

Not proved

State of the judicial mind

Affirmative satisfaction that the fact exists

Affirmative satisfaction that the fact does not exist

Neither satisfaction; the material is insufficient or evenly balanced

Effect

The fact is treated as existing

The fact is treated as not existing

The party bearing the burden fails on that fact

Character

A positive finding

A positive finding of the negative

The residual category

Illustration in a criminal trial

The prosecution establishes each ingredient of the offence

The accused establishes a plea of alibi or a general exception

The accused raises a reasonable doubt without establishing any positive defence

The distinction between 'disproved' and 'not proved' has practical consequences. An accused who establishes a defence brings about a finding that the prosecution case is disproved. An accused who merely raises a reasonable doubt brings about a finding that it is not proved. He is entitled to an acquittal in either case, but the two findings differ in kind, and the difference becomes material where a statutory presumption places a burden upon him, since such a burden is discharged by proof and not merely by the creation of doubt.

3. Proof Distinguished from Suspicion and from Conjecture

The prudent-man standard sets a floor below which a finding cannot be made. Material that raises a suspicion, however strong, does not amount to proof, and the courts have consistently refused to allow the gap between the two to be bridged by the gravity of the accusation.

📖 Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637

Held: Considerations of moral conviction or grave suspicion cannot take the place of legal proof. However strong the suspicion against an accused may be, it cannot supply the want of evidence, and a conviction cannot be founded upon it.

Ratio: The standard formulation of the principle that suspicion, however grave, cannot take the place of proof.

📖 Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343

Held: In cases depending on circumstantial evidence the circumstances from which the conclusion of guilt is drawn should be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency, and there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with innocence.

Ratio: Circumstantial material must be fully established before it can be used at all; a circumstance that is itself only probable cannot form a link in the chain.

4. Modes of Proof

A fact may be established before a court in several ways, only one of which involves the leading of evidence. The Adhiniyam recognises five.

Mode

How it operates

Provisions

By evidence

The ordinary mode — oral testimony of witnesses, and documents produced for inspection

Sections 54 and 55 (oral); Sections 56 to 93 (documentary)

By judicial notice

The court takes notice of certain facts without proof, and may refuse to take notice of any such fact until the person calling upon it to do so produces the necessary book or document

Sections 51 and 52

By admission

A fact admitted need not be proved. Formal admissions on the pleadings, and admissions made before or at the hearing by an agreement in writing, dispense with proof altogether. Informal admissions are relevant as evidence but not conclusive

Section 53 (facts admitted need not be proved); Sections 15 to 25 (admissions and confessions)

By presumption

On proof of one fact the court presumes another, either permissively, obligatorily, or conclusively

Sections 2(1)(b), (h) and (l); Sections 78 to 93 and 110 to 120

By estoppel

A party is precluded from denying a fact, so that the question of proving it does not arise as between those parties

Sections 121 to 123

4.1 Facts which need not be proved

Sections 51 to 53, BSA

Section 51. No fact of which the Court will take judicial notice need be proved.

Section 52. Sets out the facts of which the Court shall take judicial notice, and provides that the Court may resort to appropriate books or documents of reference; if a person calls upon the Court to take judicial notice of a fact, the Court may refuse to do so unless and until that person produces any such book or document as it may consider necessary.

Section 53. No fact need be proved in any proceeding which the parties or their agents agree to admit at the hearing, or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

⚠ The proviso to Section 53

An admission on the pleadings dispenses with proof, but the court retains a discretion to require the fact to be proved otherwise. The discretion exists because parties may admit facts collusively, and it is exercised most often in matrimonial and status proceedings, where the interest of persons who are not before the court may be affected.

4.2 Presumptions as a mode of proof

May presume — Section 2(1)(h)

Shall presume — Section 2(1)(l)

Conclusive proof — Section 2(1)(b)

Nature

Presumption of fact; permissive

Presumption of law; obligatory but rebuttable

Presumption of law; irrebuttable

Court's position

May regard the fact as proved, or may call for proof of it

Must regard the fact as proved unless and until it is disproved

Must regard the fact as proved, and shall not allow evidence to be given to disprove it

Rebuttal

Permitted

Permitted

Not permitted

Example

Section 119

Sections 116, 118 and 120

Section 116, on proof of a valid marriage and access

📖 Sodhi Transport Co. v. State of Uttar Pradesh, (1986) 2 SCC 486

Held: The expression 'shall presume' does not make the presumed fact conclusive. A presumption is not evidence in itself but only makes a prima facie case for the party in whose favour it operates. It indicates the person on whom the burden of proof lies, and when that person adduces evidence to rebut it, the presumption disappears.

Ratio: A mandatory presumption is a rule allocating the burden of proof, not a rule that forecloses enquiry.

5. Burden of Proof

Proof is an obligation before it is a result. Chapter VII of the Adhiniyam, comprising Sections 104 to 120, determines who must prove what, and what follows if he does not.

Sections 104 to 106, BSA

Section 104. 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.

Section 105. 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.

Section 106. 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.

5.1 The two burdens

Legal burden (burden of proof)

Evidential burden (onus of proof)

Provision

Sections 104 and 105

Section 106

Meaning

The obligation to establish the case as a whole

The obligation to adduce evidence on a particular fact at a particular stage

On whom

The party who would fail if no evidence at all were given on either side

The party who wishes the court to believe in the existence of a particular fact

Whether it shifts

It does not shift. It is fixed at the outset by the pleadings and the substantive law, and remains where it is placed throughout

It shifts constantly during the trial, as evidence is led and presumptions operate

Effect of failure

The party fails on the issue

The immediate point goes against the party, though the case may still be won on other material

5.2 The remaining burden provisions

Section

Subject

Effect

107

Burden of proving a fact to be proved to make evidence admissible

The party who wishes to give evidence of a fact must prove the preliminary fact on which its admissibility depends, unless the court otherwise directs

108

Burden of proving that the case of the accused comes within exceptions

Where an accused claims the benefit of a general exception or of a proviso, the burden of proving the circumstances is upon him, and the court shall presume the absence of those circumstances

109

Burden of proving a fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him

110 and 111

Presumption of continuance of life, and of death after seven years

Where a person has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that he is alive is on the person who affirms it

114

Burden of proving good faith in a transaction where one party is in a relation of active confidence

Placed on the party in the position of active confidence

116 to 120

Statutory presumptions — legitimacy, abetment of suicide by a married woman, dowry death, and absence of consent in specified prosecutions

Shift the burden to the party against whom the presumption operates

📖 Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404

Held: Section 106 of the Indian Evidence Act, now Section 109 of the Adhiniyam, is an exception to the general rule in Section 101 that the burden lies on the prosecution. 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 a fact which is especially within the knowledge of the accused. The section cannot be used to relieve the prosecution of its primary burden of establishing the case against the accused.

Ratio: The provision on facts especially within knowledge supplements the prosecution's burden; it does not displace it.

📖 Woolmington v. Director of Public Prosecutions, [1935] AC 462 (HL)

Held: Throughout the web of the criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and to any statutory exception. If at the end of and on the whole of the case there is a reasonable doubt, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Ratio: The legal burden in a criminal trial rests on the prosecution throughout, and does not shift by reason of the accused failing to establish a defence.

6. Proof of Documents

Where the fact to be proved is the contents of a document, the Adhiniyam prescribes the mode of proof and does not leave it to general principle.

Step

Requirement

Provision

1

The contents of a document may be proved by primary or by secondary evidence

Section 56

2

Primary evidence means the document itself produced for the inspection of the court, together with the electronic outputs deemed to be primary by the Explanations

Section 57

3

Documents must be proved by primary evidence, except in the cases specified

Section 59

4

Secondary evidence may be given only in the circumstances enumerated, such as where the original is in the possession of the adverse party or of a person out of reach, is lost or destroyed, or is not easily movable

Section 60

5

Execution must be proved — signature and handwriting, and in the case of a document required by law to be attested, the calling of an attesting witness

Sections 65 and 68

6

Where the document is an electronic record tendered otherwise than as primary evidence, the conditions and certificate in Section 63 and the Schedule apply

Sections 61 and 63 and the Schedule

⚠ Proof of contents and proof of truth

Proving a document establishes what it says and that it was executed by the person alleged. It does not establish that what it says is true. A recital in a deed, a statement in a letter, or an entry in a register is proved as a statement once the document is proved, but its truth must be established separately unless a specific provision, such as Sections 28 to 32 on statements made under special circumstances, makes the statement itself relevant.

7. Related Topics and Provisions

Topic or provision

Connection

Standard of Proof in Civil and Criminal Cases

The degree of assurance required before a fact is held proved in each class of proceeding

Important Definitions under Section 2, BSA

The full text and analysis of the definitions applied here

Kinds of Evidence

The forms in which material is brought before the court for the purpose of proof

Nature and Meaning of Evidence

The relationship between evidence, relevancy, admissibility and proof

Sections 104 to 120, BSA

Burden of proof and the statutory presumptions in full

Sections 51 to 53, BSA

Facts which need not be proved

Sections 56 to 93, BSA

Documentary evidence and the presumptions as to documents