​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-On Whom the Burden of Proof Lies (Section 105) and Burden of Proof & Onus of Proof 

​1. IntroductionA basic question in evidence law is: who must prove what?
The general rule is: “he who asserts must prove.” If a person claims a right or asserts a fact and fails to prove it, he will fail in the suit/proceeding.

2. Statutory Rule: Section 105 (Test for deciding who carries the burden)Section 105 lays down a practical test:

• The burden of proof lies on that person who would fail if no evidence at all were given on either side.

This means the court imagines a situation where both sides produce zero evidence—then asks: who would lose? That person carries the burden.

3. Illustrations (Simple understanding)(a) Land + Possession case

• A sues B for land; B is already in possession.
• If no evidence is produced, B keeps possession.
  ✅ So A has the burden.

(b) Bond + Fraud defence

• A sues B on a bond; execution admitted, but B alleges fraud.
• If no evidence is produced, bond stands and A wins.
  ✅ So B has the burden to prove fraud.

4. Scope and Principle (How Section 105 works with the general rule)

• Section 104 explains the general rule about burden (who must prove facts to get relief).
• Section 105 states the same idea in a negative/hypothetical form (who would fail without evidence).

Key points:

• Burden lies on the party substantially asserting the affirmative of the issue.
• The party with the burden must:
  • establish a prima facie case,
  • succeed on the strength of their own evidence,
  • and cannot win merely because the opponent’s case is weak.

5. Burden of Proof vs Onus of Proof (Rewritten in Note Form)(A) Burden of Proof

• Meaning: The legal responsibility to prove the facts necessary to succeed in the case.
• Nature: Fixed/constant throughout the trial (generally does not shift).
• Scope: Relates to the entire case (whole claim or defence that must be proved).
• Effect: If the party who bears it fails to prove, they lose.

(B) Onus of Proof

• Meaning: The duty to produce evidence on a particular point at a particular stage of the case.
• Nature: Shifting/variable—moves from one side to the other depending on evidence, presumptions, and admissions.
• Scope: Relates to specific issues/facts during trial.
• Effect: Once one party produces sufficient evidence on a point, the onus shifts to the other party to rebut it.

(C) Core Distinction (In one line)

• Burden of proof = fixed duty to ultimately prove the case.
• Onus of proof = shifting duty to lead evidence at different stages.

6. Judicial Understanding (Short note)

• Courts have repeatedly clarified that:
  • burden generally remains constant,
  • while onus may shift according to how evidence unfolds and which presumptions apply.
• In title/possession disputes, courts emphasize:
  • the plaintiff must prove a better title,
  • and cannot succeed merely by pointing out weakness in the defendant’s case.

7. Burden of Proof and Presumptions (Connection)Burden is often lightened or affected by:

• Presumptions (fact or law),
• Admissions,
• Estoppel.

General idea:

• If a presumption operates in favour of one party, the other party must rebut it.
• So presumptions often cause a shift in onus, even if the main burden remains where law places it.

8. Exceptions to the General Rule (Quick notes)Even though usually the one who asserts must prove, burden/onus may shift in two important situations:

1. Rebuttable presumptions / prima facie case
   • Once a presumption arises or a prima facie case is shown, the opponent must rebut.
2. Facts especially within knowledge (Section 109)
   • If a fact is exceptionally within one party’s knowledge, that party may have to prove it.

9. Conclusion

• Section 105 provides the clearest test: who would fail if no evidence is given?
• Burden of proof decides who must ultimately prove the case (generally constant).
• Onus of proof is the shifting duty to produce evidence as the trial progresses.