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Burden of Proof – Burdened of Proof and Onus of Proof : Distinction

June 27, 2021

Introduction:— Proof means evidence, testimony, convincing token, means of conviction. Proof of a fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. As observed in Hawkins case; “Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”, T. Shankar Prasad v. State of A.P.(2004) 3 SCC 753: 2004 SCC (Cri) 870.

Burden of proof:
Burden of Proof means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one of the two contending parties has to introduce evidence, Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100: (1960) 1 SCR 773.  The phrase “burden of proof” has two meanings — one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact, Kundan Lal Rallaram v. Custodian, AIR 1961 SC 1316: (1963) 1 MLJ 85. The most prominent canon of evidence is, that the point in issue is to be proved by the party who asserts the affirmative, according to the civil law maxims, Eiincumbit probatio qui dicit, non qui negat, Actori incumbit onus probandi and Affirmanti non neganti incumbit probatio. The burden of proof lies on the person who has to support his case by proof of a fact which is peculiarly within his own knowledge or of which he is supposed to be cognizant.

Burden of proof, C. Sekar v. Ragini, (2014) 1 ICC 172 (Mad), para 13.

Onus probandi and animo attestandi — The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court’s exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest: it means intent to attest. The attesting witness must subscribe to the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not, N. Kamalam v. Ayyasamy(2001) 7 SCC 503.

Burdened of Proof and Onus of Proof — A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways:

(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later

(ii) to make that of establishing a proposition as against all counter-evidence; an

(iii) an indiscriminate use in which it may mean either or both of the others, Anil Rishi v. Gurbaksh Singh(2006) 5 SCC 558.

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