Report No. 185

Sections 101 to 167:

Part III of the Act deals with 'Production and effect of Evidence'.

The part contains Chapters VII to XI; Chapter VII (Of the Burden of Proof), (Sections 101 to 114A), Chapter VIII (Estoppel) (Section 115 to 117); Chapter IX (Of Witnesses) (sec 118 to 134); Chapter X (Of the examination of witness) (Section 135 to 166); and Chapter XI (Of improper admission and rejection of evidence) (Section 167).

We shall take up section 101 in Chapter VII relating to Burden of Proof.

Section 101: bears the heading 'Burden of Proof'. It reads as follows:

"101. 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."

There are two illustrations below Section 101.

In the 69th Report, in Chapter 45, the Commission considered section 101 and came to the conclusion that no amendments are called for so far as Section 101 is concerned (see para 45.18).

But, the Commission referred to the broad principle in civil cases relating to the burden of 'establishing a case' or the 'legal burden (or persuasive burden', which never shifts and the 'evidentiary burden' which shifts during the trial from one side to the other. In a criminal case, the burden is always on the prosecution to prove that the accused is guilty, though there may be special statutes requiring the accused to prove certain facts whenever the prosecution has proved certain other facts.

These principles being well known and basic, we do not propose to refer to the case law relating to burden on the basis of the pleadings and the evidential burden. We shall proceed to refer to the other sections in this Chapter VII.

We agree with the 69th Report that no amendment is necessary in this section.

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