evidence ch 8
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CHAPTER 8
Burden of Proof
Contents
8.1 General Rule 3
8.2 Meaning of Rule 38.2.1 In Civil Cases, Burden of proof on the Pleadings 4
8.2.2 In Criminal Cases, Burden of Establishing Guilt 6
8.2.3 On Whom Burden of Proof Lies 7
8.2.4 Burden of Proof as to Particular facts 8
8.2.5 Burden of proving fact to be proved to make evidence admissible 9
8.2.6 Burden of proving that case of accused comes within exception 10
8.2.7 Burden of proving fact especially within knowledge 12
8.2.8 Burden of proving death of person whom to have been
alive within thirty years 13
8.2.9 Burden of proving that person is alive who has not been
heard of seven years 13
8.2.10 Burden of proof as to relationship in the cases of partners,
landlord and tenant, principal and agent 14
8.2.11 Burden of proof as to ownership 14
8.2.12 Proof good faith in transactions where one party
is in relation of active confidence 15
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8.2.13 Birth during marriage conclusive proof of legitimacy 16
8.2.14 Court may presume existence of certain facts 18
Key Terms 24
Assignment Questions 25
Short Questions 25
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CHAPTER 8)
Burden of Proof
8.1General Rule The general rule is that he who asserts must prove.
Eg. If D has sold to P a horse with a warranty of soundness and P sues
D for a breach of the warranty, it is for P to prove the horse unsound, for D at
the outset to prove it sound.
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8.2 Meaning of Rule The expression burden of proof has two meanings:-
(1)The burden of proof as a matter of law and pleading that is the burden of
establishing a case.
)
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(2) The burden of proof in the sense of introducing evidence.
)
8.2.1 In Civil Cases, Burden of proof on the Pleadings -The plaintiff or the defendant who, in substance, asserts the affirmative of an
issue must prove it.
The burden of proof in this sense is fixed at the beginning of the trial and
does not shift.
Section 101- Of the Burden of Proof- -
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."
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When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Illustrations -(a) A desires a Court to give judgment that B shall be punished for a Crime which
A says B has committed A must prove that B has committed the crime
) A B B
A B
(b)A desires a Court to give judgment that he is entiled to certain land in the
possession of B, by reason of facts which he asserts, and which B denies, being
true. A must prove the existence of those facts.
) A B
A B
A
Duty of accused in criminal case burden of proof guilt always on
prosecution. In Sein Hla Vs. The Union of Myanmar Case, the judge decided that
the above principle. That an accused person owes no duty to anybody and the
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burden of proving his guilt remains through out the trial wish the prosecution who
must prove such beyond all reasonable doubt.
1
8.2.2 In Criminal Cases, Burden of Establishing Guilt
The burden of proof rests on the prosecution throughout.
Example- On an indictment for murder the prosecution must prove (a) death as a
result of the voluntary act of the prisoner and (b) malice on the part of the prisoner.
-
)
)
Burden of Adducing Evidence
In some cases the burden of proving certain issued rests specifically upon
the accused,
1 -- - )
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e.g-where the defense is insanity.
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where a special plea in Bar is raised.
8.2.3 Section 102- 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 given o neither side.
Illustration -
(a) A sues B for land of which B is in possession, and which, as A asserts, was left
to A by the will of C, Bs father.Therefore the burden of proof is on A.
)
(b) A sues B for money due on a bond.
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The execution of the bond is admitted, but B 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 Rulings.
)
8.2.4Section 103- Burden of Proof as to Particular facts-- 1
The burden of proof as to any particular fact lies on that person who wishes
the Court to believe in its existence, unless it is provided by any law that the proof
of that fact shall lie on any particular person.
Burden of Proof as to particular fact
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Illustration -
A prosecutes B for theft, and wishes the Court to believe that B admitted the
theft to C.A must prove the admission.
B wishes the Court to believe that at the time in question, he was elsewhere.
He must prove it.
8.2.5 Section 104- Burden of proving fact to be proved to make evidenceadmissible. --
The burden of proving any fact necessary to be proved in order to enable any
person to give evidence of any other fact is on the person who wishes to give such
evidence.
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Illustration - -
(a) A wishes to prove a dying declaration by B, A must prove Bs death.
)
(b) A wishes to prove, by secondary evidence, the contents of a lost document.
A must prove that the document has been lost.The burden of proving the death of
the declarant is on the party who wishes to give secondary evidence of the contents
of the document.
)
8.2.6 Section 105- Burden of proving that case of accused comes within exception -
When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions
in the Penal Code, or within any special exception or proviso contained in any
other part of the same code, or in any law defining the offence, is upon him and the
court shall presume the absence of such circumstance.
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Illustration -
(a)A, accused of murder, alleges that, by reason of unsoundness of mind, he did
not know the nature of the act.The burden of proof is on A.
)
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was
deprived of the power of self-control.The burden of proof is on A.
)
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8.2.7 Section 106- Burden of proving fact especially within knowledge--
When any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him.
Illustrations-(a)When a person does an act with some intention other than that which the
character and circumstances of the act suggest, the burden of proving that intention
is upon him.
)
(b) A is charted with traveling on a railway without a ticket. The burden of proving
that he had a ticket is on him. And the Court may place the burden on the party
who has the best means of producing evidence on the point."
)
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8.2.8 Section 107 - Burden of proving death of person whom to have been alivewithin thirty years.--
If there is proof that a man was alive 30 years ago, or less, the court
presumes that he is still alive.
8.2.9 Section 108 Burden of proving that person is alive who has not been heardof seven years -
If it is proved, however, that he has not been heard of for 7 years, the Court
presumes that he is dead. There is no presumption as to the date of his death.
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8.2.10 Section 109 Burden of proof as to relationship in the cases of partners,landlord and tenant, principal and agent - )
When the question is whether persons are partners, landlord and tenant, or
principal and agent and it has been shown that they have been acting as such, the
burden of proving that they do not stand, or have ceased to stand to each other in
those relation ships respectively, is on the person who affirms it.
8.2.11 Section 110 Burden of proof as to ownership -
When the question is whether any person is owner of anything of which he
is shown to be in possession, the burden of proving that he is not the owner is on
the person who affirms that he is not the owner.
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Possession is a right which may be separated from ownership. A person
having possession of property, although he is not the owner, has a right to such
possession against everyone except a person who can show a better title to possess
where possession by the defendant is proved or admitted, the plaintiff must prove
his own title, if he is able to do so, the defendant if called upon to prove a better
title.
8.2.12 Section 111 Proof good faith in transactions where one party isirelation ofactive confidence -
Where there is a question as to the good faith of a transaction between
parties one of whom stands to the other in a position of active confidence, the
burden of proving the good faith of the transaction is on the party who is in a
position of active confidence.
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Illustrations-
(a) The good faith of a sale by a client to a legal practitioner is in question in a
suit brought by the client. The burden of proving the good faith of the transaction
is on the legal practitioner.
)
(b)The good faith of a sale by a son just come of age to a father is in question in a
suit brought by the son. The burden of proving the good faith of the transaction is
on the father.
)
8.2.13 Section 112- Birth during marriage conclusive proof of legitimacy--
The fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days (280) day
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after its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to he
marriage had no access to each other at any time when he could have been
begotten.
Note-* This section, which is based in the maxim pate rest quem nuptials demons
trant (father is he whom the nuptials indicate) creates, in favor of a child both born
during continuance of a valid marriage between his mother and the alleged father,
a conclusive presumption of legitimacy, in the of evidence of non-access between
the parents.
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8.2.14 Section 114- Court may presume existence of certain facts--
The Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to facts of the particular
case.
Illustration-
The court may presume-
(a)that a man who is in possession of stolen goods soon after the theft is either or
has received the goods knowing them to be stolen, unless he can account for his
possession.
)
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as to illustration (a).
A shop-keeper has in his till a marked kyat soon after it was stolen, and cannot
account for its possession specially, but is continually receiving in the course of his
business;
)
)
Illustration
The Court may presume that-
(b) that an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
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eg. A crime is committed by several persons. A, B and C, three of the
criminals are captured on the spot and kept apart from each other. Each given an
account of the crime implicating D, and the accounts corroborate each other in
such manner as to render previous concert highly improbable;
- A,
B C
D
Illustration
( c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
)
eg A, the drawer of a bill of exchange, was a man of business. B, the acceptor,
was a young and ignorant person, completely under As influence;
-A
B A
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)
e.g the question is, whether a letter was received. It is shown to have been
posed, but the usual course of the post was interrupted by disturbances;
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Illustration
(g) that evidence which could be and is not produced would; if produced, be
unfavorable to the person who withholds it;
)
e.g. a man refuses to produce a document which would bear on a contract of
small importance on which he is sued, but which might also injure the feelings and
reputation of his family;
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Illustration
(h) that if a man refuses to answer a question which he is not compelled to
answer by law,the answer , if given would be unfavourable to him;
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)
eg. a man refuses to answer a question which he is not compelled by law to
answer, but the answer to it might cause loss to him in matters unconnected with
the matter in relation to which it is asked;
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Illustration
(i) that when a document creation an obligation is in the obligation is in the
hand of the obligor, the obligation has been discharged.
)
e.g. a bond is in possession of the obligor, but the circumstance of the case are
such that he may have stolen it.-
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KEY TERMSBurden of proof
Pleadings
Bond
Consideration
Self-defence
Incapable
Credit
Warranty
Affirmative
Insanity
Grave and sudden provocation
Proviso
Landlord
Tenant
Guilt
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Assignment Questions1. Explain the burden of proof.Illustrate your answer
2. Explain burden of proofing fact tobe proved to make evidence admissible.
3. What is the burden of proving that case of accused comes within exception?
4. Explain burden of proving fact especially within knowledge.
5. What is meant by burden of proof as to ownership?
6. Define proof good faith in transactions where one party is in relation of active
confidence.
7. Explain birth during marriage conclusive proof of legitimacy.
Short Questions1. What is meant by burden of proof?
2. On whom burden of proof lies in civil case?
3. Define burden of proof as to particular fact?
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