Section 102 of the Indian Evidence Act, 1872

On whom burden of proof lies:

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.

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Illustrations:

(a) A sues В for land of which В is in possession, and which, as A asserts, was left to A by the will of C, B’s father.

If no evidence were given on either side, В would be entitled to retain his possession. Therefore the burden of proof is on A.

(b) A sues В for money due on a bond.

The execution of the bond is admitted, but В says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

Comments:

Principle:

According to general principle the burden of proof initially lies on the plaintiff. Section 102 lays down that 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. It relates to the leading of evidence and “decides the controversy between the parties as to who is to lead evidence first and so it is only procedural matter.” A sues В for land of which В is in possession, and which, as A asserts, was left to A by the will of C, B’s father. Here A must prove the will of C. If no evidence were given on either side В would be entitled to retain his possession of the land. [Illustration (a)].

In an election petition the petitioner failed to prove as to what proportion of the total votes cast in favour of a wrongfully accepted candidate. The Supreme Court rejected the election petition. When a party to a suit does not give evidence and does not offer himself for cross-examination, a presumption would arrive that the case set up by him is not correct.

The plea that the structure were to be excluded, the onus would be on person alleging such exclusion.

“Burden to prove” in rape cases:

In rape cases the burden to prove consent of the victim is on the accused. It is not for the victim to show that there was no-consent on her part.

Burden to prove medical negligence:

In C.P. Sreekumar (Dr) v S. Ramanujam ’ it was held that onus of proving medical negligence lies on the complainant.

Mere averment in complaint is not evidence. Complaint has to be proved by cogent evidence. The complainant is obliged to provide facta probanda as well as facta probantia.