Each incident, whether it occurred or not must be supported by evidence. Consequently, proof of an event is known as evidence. If no evidence is presented, or if evidence is presented but not proven, the incident that occurred will be ruled contrary.

The burden of proof is a fundamental principle of criminal law stating that the prosecution must prove the accused's guilt, while the accused is presumed innocent. The Evidence Act establishes the general principles of burden of proof.

The only way to prove the incident is with evidence, and the victim is responsible for proving the evidence. The phrase "burden of proof" has two meanings: establishing the case and presenting evidence.

The burden of proof consists of two elements. One is the Legal Burden and the other is Evidential Burden. The legal burden is the burden of proof, also known as the probative burden and the ultimate burden. The evidentiary burden, on the other hand, is defined as the amount of evidence required to establish a prima facie case, also known as the onus of proof.

The burden of proof is always with the plaintiff. Only the evidentiary burden shifts. In other words, what must be demonstrated is fixed, but who must demonstrate it is debatable. The onus (refers to the liabilities and responsibilities to prove the fact, which shifts from one party to another. Hence, the burden of proof is always constant but the onus shifts.

In this paper, I have discussed and analysed the burden of proof, and when onus arises, under the Indian Evidence Act and which of them shifts in a case. I also addressed the difference between the burden of proof and the onus of proof in civil and criminal cases. And accompanied this paper with pertinent case laws.

Introduction
The term burden of proof is derived from the Latin term "onus probandi". The principle of burden of proof is associated with the Latin maxim "semper necessitas probandi incumbit ei qui agit", which means "the necessity of proof always lies with the person who institutes charges.

The burden of proof incorporates the "Onus Probandi" and "Factum Probans" principles.

According to "Onus Probandi", the party making an affirmative claim must prove it. This burden is on the side attempting to support their case with a specific fact they claim to be aware of. The actual evidence or proof presented to substantiate a claim in a legal proceeding is referred to as "Factum Probans."

The burden of proof is the requirement that a party prove or disprove a disputed fact. In general, evidence meets the burden of proof. It is the most important rule of evidence in civil and criminal trials.

The burden of proof is on the party to establish the main reason for seeking court intervention, whereas the onus of proof is the obligation to produce the proof. The claimant always bears the burden of proof, but the burden of proof shifts to the opposing party when one party successfully produces evidence supporting their case which is onus of proof.

Burden Of Proof

The term 'Burden of Proof' refers to the responsibility of substantiating one's claims with evidence under the Indian Evidence Act.

Part III of the Indian Evidence Act is divided into five chapters, which are Chapters VII to XI, that deal with the production and effect of evidence. Chapter VII discusses the burden of proof.

The provisions of "burden of proof" are addressed in Chapter VII. Sections 101 to 114 constitutes chapter VII of the Indian Evidence Act.

The burden of proof is enumerated under Section 101 of the Indian Evidence Act. This provision provides who bears the burden of proof, whereas Section 102 provides shifting of burden of proof to either parties. These two provisions address a general situation and establish general propositions, whereas sections 103 to 114-A address particular circumstances and can be considered as exceptions to the general principle.

According to Section 101 of the Indian Evidence Act, the term "burden of proof" has been defined as follows; "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."[1]

The burden of proof is connected with the Latin maxim "semper necessitas probandi incumbit ei qui agit," which means "the person who lays charges always bears the burden of proof."

The party who substantially asserts the affirmative of the issue bears the burden of proof, not the party who denies it. This convenience rule has come into use not because proving a negative is impossible, but because the negative does not allow for the direct and simple proof that the affirmative does. Furthermore, requiring the party who relies on his contention to prove his own case is only fair and reasonable.

The phrase "burden of proof" has two distinguished meanings. The first is the legal burden, and the second is the evidentiary burden.

To begin, LEGAL BURDEN (Onus Probandi) denotes that the burden of proof is on the pleadings, which rests on the party asserting the affirmative of a claim. This is the commencement of the trial, and it is decided as a legal question.

Subsequently, there is EVIDENTIAL BURDEN (Factum Probans). It is to mean presenting evidence to establish a prima facie case on which the accused may (but does not have to) be found guilty if he does not present evidence to raise a reasonable doubt. The prosecution's failure to discharge the evidentiary burden results in the charge being dismissed.[2]

Sections 101 and 102 of the Indian Evidence Act incorporate the two aspects of burden of proof that have been discussed herein.

Burden Of Proof In Civil Cases

The plaintiff bears the burden of proof when asserting the claim, and depending on the facts of each case, the burden of proof may shift to the defendant. The plaintiff must prove his case, and he will not win simply because the defendant fails to prove his case. Failure to prove the defence is not an admission, nor does it reverse or relieve the plaintiff of the burden of proof.[3]

Moreover, when proving a fact is required to allow evidence of another fact to be admitted, the burden of proof rests with the individual wishing to present that evidence.

In civil litigation, the burden of proof is lower for plaintiffs than it is for prosecutors in a criminal case. In a criminal case prosecutor must prove a the case beyond a reasonable doubt. But the standard in a civil case is much lower than that of criminal one.

In civil cases, the Burden of proof is on the claimant to prove his claims by a Preponderance of the probability.

Preponderance of the Probability denotes that something is more likely to be true than false. The claimant in a lawsuit only needs to persuade a judge that their claim has a "greater than 50% chance of being true." When determining whether there is a Preponderance of the Probability, the quality of the evidence will be more important than the quantity.

In K. S. Nanji & Co. v. Jata Shankar Doassa[4], the court held that, When a right is being asserted, the plaintiff has the responsibility of proving that they are entitled to that right. However, depending on the specifics of each case, the burden of proof may occasionally shift to the defendant.

In Mohammed Abdul Hammed v. Zulfikhar Ahmed[5], the court held that, If the plaintiff in one suit failed to show his case, the other party, who was the plaintiff in the second cross suit, could not succeed without proving his own case. In other words, because the plaintiff in the cross-suit bears the burden of proof, he must establish his own case by producing sufficient evidence.

Burden Of Proof In Criminal Cases

In a criminal trial, the accused can be found guilty only if it is proven that they committed the crime "beyond a reasonable doubt." A reasonable doubt is one that is founded on sound reasoning. It must be more than hypothetical, and it is typically characterized judicially as any doubt that would lead a reasonable person to consider before acting in a important subject.

The absence of all doubt is not required in a criminal case, but the proof must show that the accused committed the crime "beyond a reasonable doubt." In a criminal case, the burden of proof that must be met in our courts is of higher standard.[6]

The burden of proof is always on the state in criminal proceedings. The state must establish the accused's guilt. In the eyes of law the accused is presumed innocent and does not need to prove anything until the onus shifts.

In criminal proceedings, the state must prove "beyond a reasonable doubt" that the accused satisfied each ingredient of the crime.[7] It is difficult to quantify the likelihood that a guilty person actually committed the crime, but the state in a lawsuit only has to convince a judge that there's a "greater than 90 percent chance" that their claim is true.

In Jarnail Singh v. State of Punjab[8], The Supreme Court ruled that in a criminal case, the prosecution always bears the burden of proving the accused's guilt beyond all reasonable doubt, and that if it fails to present sufficient evidence to discharge the burden, it cannot rely solely on evidence presented by the accused in support of their defence.

Onus Of Proof
As previously discussed, the term Burden of Proof refers to two distinct circumstances, one id the burden of proof as a matter of law and pleading to establish a case and the burden as a matter of adducing evidence to prove the claims, also known as onus of proof.

Although the burden of proof is not explicitly defined in the Evidence Act, provisions relating to it are included in the Act and in numerous court decisions. Furthermore, the prosecution's duty to prove the case is a general rule in criminal law; however, when the accused is called upon to prove the burden, this is an exception to the above generality, and this is referred to as the onus of proof falling on the accused to prove his case under an exception. The burden of producing actual evidence can be shifted from one party to another, and such shifting is a continuous process in evidence evolution.[9]

Section 102 of evidence act determines who has the onus of proof. As per Section 102, "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."[10]

The plaintiff is required to provide evidence in support of the prima facie case under Section 102 of the Indian Evidence Act. If he fails or leaves it incomplete, the defendant will bear the burden. The defendant may then either deny or present rebutting evidence to counter the plaintiff's case. As a result, the burden of proof shifts throughout the proceedings. It is difficult to determine when the onus shifts from one side to the other during the course of the evidence.

For example, A sues B for land that B owns and that, according to A, was left to A by the will of C, B's father. If neither side produced any evidence, B would be entitled to keep his possession. The burden of proof is on A. To rebut the evidence provided by A, then the onus to produce the evidence shifts to B.

In Ranchhodbhai vs Babubhai[11], the court held that the burden of proof as it relates to adducing evidence is referred to as onus. The terms burden of proof and onus of proof are not interchangeable.

Distinction Between Burden And Onus Of Proof:
Sections 101 and 102 of the Indian Evidence Act refer to the burden of proof and onus of proof.

The burden of proof is the burden of proving the party seeking court action's contention, while the onus of proof is the burden of producing actual evidence.

There is an important distinction between burden of proof and onus of proof. The burden of proof falls on the person who has to prove a fact that never changes. The burden of proof is constant and always falls on the claimant, whereas when one party successfully produces evidence supporting its case, the onus of proof shifts to the opposing party.

We can say that the burden of proof is static, whereas the onus of proof is dynamic.

The court in A. Raghavamma and another v. Chencharamma and another[12], held that there is a significant difference between the burden of proof and the onus of proof; the burden of proof always falls on the person who has to prove the fact. The burden of proof shifts. In evidence evaluation, this shifting of onus is a continuous process. Once the plaintiff has established a high degree of probability, it is the defendant's responsibility to discharge his onus, and in the absence of such discharge, the plaintiff's burden of proof is deemed to have been discharged, amounting to proof of the plaintiff's title.

In Abdulla Mohammed v. State[13], the court clarified the distinction between "burden" and "onus." The burden of proof was held to be on the person who has to asserts a claim, and "it never shifts, but the Onus of proof shifts". In the evaluation of evidence, such shifting of Onus is a continuous process. So, while the prosecution bears the majority of the burden, the accused may be required to demonstrate that his case falls within an exception. The onus is then placed on the accused, and the case is considered discharged if the accused person succeeds in establishing a reasonable doubt in his favour, without having to prove his case beyond reasonable doubt.

Conclusion
The burden of proof, also known as the burden of establishing a case in law and pleading, is placed on the party who brings the claims. The burden of proof is on the party, whether plaintiff or the state, who makes the most compelling affirmative argument about the issue. It is established as a matter of law by statements made in the pleadings at the beginning of the trial, and it is resolved in such a way that it cannot be changed under any circumstances.

We can say that the onus is one component of the burden of proof, which is unstable and shifts. It is up to the parties to produce evidence in support of their pleadings. Furthermore, the burden of proof is not the same in civil and criminal cases; the accused or defendant can be considered guilty when the claims are proven to be true in both cases.

Bibliography:

• R&D, The Law Of Evidence, 24th Edition (Lexis Nexis)
• Pooja Garg, 17 Shifting Trends In Burden Of Proof And Standard Of Proof: An Analysis Of The Malimath Committee Report, 38�58 (2005)
• WY Wodage, Burdens Of Proof, Presumptions And Standards Of Proof In Criminal Cases, 8 Mizan Law Review, 252 (2015)

End-Notes:

1. The Indian Evidence Act, 1872, No. 1, � 101
2. Pooja Garg, 17 SHIFTING Trends In Burden Of Proof And Standard Of Proof: An Analysis Of The Malimath Committee Report 38�58 (2005).
3. Ratanlal Ranchhoddas ET AL., 1 THE LAW OF EVIDENCE (2019).
4. AIR 1961 SC 1474
5. 2004 AIHC 2717
6. Ratanlal Ranchhoddas Et AL., 1 THE LAW OF EVIDENCE (2019).
7. Worku Yaze Wodage, Burden of proof, Presumptions and Standard of proof in Criminal cases, 8, MIZIAN L.R., 252-270 (2014)
8. AIR 1996 SC 755
9. James B. Thayer, The Burden of Proof, 4, HAR L.R. ASS. (1890)
10. The Indian Evidence Act, 1872, No. 1, � 102
11. AIR 1979 Guj 121
12. AIR 1964 SC 136
13. 1980 SCC (3) 110