 Good evening sir. On a weekend to be connected on a topic which every student of law and student of law also includes a lawyer himself because they say as long as the student within oneself survives, one can always improve himself within the different facets of law. And while taking different webinars on different perspectives, a topic which normally is being discussed is burden of proof, vis-a-vis owners of proof and standard of proofs. The modes of proof and the variation of these proofs have always been a facet which we all as a student of law intend to learn amongst each other. Amongst us, the today's resource person is justice MSR Murthy, a former judge of Andhra Pradesh High Court, and his passion for making the knowledge spread is also amplified from the fact that he also had a major role in the Andhra Pradesh judicial academy as he is himself a gold medallist. And we all say that and we all learn that once you speak a knowledge which takes you to a different level that itself gives you a feeling of gold. And I was, while we had requested justice Murthy, we also said that since we always bring resource persons of immense knowledge, the either ways we can go gaga about is bio data, but we always feel the participants always wish to have the deeper insights and plunge deeper into it so that they can understand the nuances of law from a person who has been not also the established name and the practicing lawyer and thereafter as his judge, when his judgments were and are being well received and well read. Without taking much time. Thank you very much sir that we are enamored by the fact that you have accepted our invite to share the knowledge and that to on a weekend and during all these testing times. Over to you. Thank you sir. Good evening one and all my hearty pronouns to all the elders, including the respected senior advocates and justices sitting and they tried. And all the others would be just to all youngsters. I thank the organizers and the team of beyond law CLC by inviting me to share my humble views and thoughts on the chosen topic. It's in my it's my distinct pleasure to be with you this evening. As rightly said, law is an ocean. It's horizons are ever widening. And it's depth are unfathomable. Therefore, every lawyer and a judge is forever a student of law for me. Interacting on subjects of law and participating on participating in webinar. Is like learning coming to the topic burden of proof vis a vis. Bonus of proof and standards of proof. I would submit first that my talk is intended for youngsters newcomers. Both at the bar and on the bench. And also young law students love evidence is an interesting and intriguing subject in stating so I purely mean it is a fascinating and absorbing subject. Any presentation on any topic related to life evidence. Without mentioning. Sir James with James Stephen. Will be doing injustice to the great man who is responsible. For the masterpiece. The magnum of us on the law of evidence. Since I already said my talk is intended. For the youngsters. I shall start with a brief outline of the Indian evidence act 1872. The act has three parts. Part one consists of two chapters. Chapter one consists of four sections. Section one deals with title extent and jurisdiction. Who is not stat is a not on the statute book. Three interpretation class a very important class. For presumptions. Chapter two deals with relevancy of facts. Contains section six to 58. Part two deals with mode of proof. It consists of chapter three to six. Chapter three deals with fact which make facts which need not be proved. Section 56 57 and 58. Please underline the word fact. Wherever it appears. Deals with war evidence. Section 59 and 60. Chapter five documentary evidence. Section 61 to 90. Chapter six exclusion of oral documentary oral by documentary evidence. Sections 91 to 100. Part three production and effective evidence. It consists of chapters seven to 11. Chapter seven is burden of proof. Underline sections 101 to 114. Chapter eight a stable section 115 to 117. Chapter nine competency and compilability of witnesses. Sections 118 to 134. Chapter 10 examination of witnesses. Sections 135 to 136. Chapter 11 improper admission and rejection of evidence. Section 167. Thus, having considered the outline of the Indian evidence act. Let us come to the topic. Generally, a person goes to a court of law. And initiates a legal proceeding. In order to seek redress of any injustice caused to him. In such a case. He necessarily relies upon a particular rule of law. Provided either in a statute. Or derived from case law. If we just be remedium. Where there is a right. There is a remedy. Therefore, the person who goes to a court. And initiates a legal proceeding. Is required to show. That he is entitled to a certain right. Or that the other party. Is subject to a duty or a liability. Thus, the party who goes to a court of law. Will accept existence of certain circumstances and facts. The other party generally denies the existence of the same. Then the facts issue. Become the subject matter of the court's decision. So everywhere we are talking of facts. Thus all rights and liabilities of individuals. Necessarily arise out of facts. Then what is a fact. Indian evidence act. Clarifies that facts are of two types. Physical facts and psychological facts. Physical facts. Are those. Which are. Capable of being perceived by the five senses. Facts which can be perceived. By these five bodily senses. Are physical facts. What are the five bodily senses. For youngsters to easily remember. I suggest. These are. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. Russia. proof. So the same can be proved by admissions or confessions or by presumptive evidence. Presumptive evidence is evidence which can be drawn from other surrounding physical facts. These are the facts which become facts in issue when facts are accepted and denied by the parties in Alice. So when one party asserts the existence of certain circumstances and facts and claims that he is entitled to certain rights and when the other party is subjected to duty or liability but when the other party denies the same a question would arise as to who should be asked to prove. In other words the question is on whom does the burden of proof lie? On whom does the burden of proof lie? Does we come to the topic burden of proof? When we think of burden of proof what comes as a first thought to our mind is section 3 interpretation clause of the Indian evidence set which particularly deals with proved, disproved and not proved. These are the definitions which we find in the evidence set. Evidence means and includes all statements which the court permits are required to be made before it by a witness in relation to matters of facts under enquiry. Such statements are called oral evidence. All documents including electronic records produced for the inspection of the court are called documentary evidence but at the end of the trial we notice that there will be a third kind of evidence in many a matter. That evidence we know is material evidence. So at the conclusion of the trial either in a civil or a criminal case there is a possibility of having a third kind of evidence namely material evidence. You can see order 13 rule 11 of the CPC which says provisions as to documents applied to material evidence and the material evidence is material objects producible as evidence. Then coming to proved, disproved and not proved. This is very very important for us because we are talking about burden of proof. A fact is said to be proved when after considering the matters before it the court that believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case to act upon the supposition that it exists. So there are two kinds. The court believes or acts on the supposition. Disproved. A fact is said to be disproved when after considering the matters before it the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought under the circumstances of particular case to act upon supposition that it does not exist. So the definition of expression disproved is converse of the definition of the expression proved. Then what is not proved? Here there is a very important aspect which I would like to share. A fact is said to be not proved when it is neither proved nor disproved. This does not always mean that no evidence at all is deduced. It is not a case of non-adduction of evidence. It also indicates a state of mind in between the two expressions proved and disproved. That is it cannot be said whether a fact is proved or disproved. It negatives both proof and disproved despite evidence being on record. So the burden of proof does signify an obligation on the party to prove a fact. Ordinarily, burden of proof lies on the party which affirms a fact and not on the party who denied it. This principle accords with the common sense as it is much easier to prove a positive than a negative. See are there 18 of the CPC dealing with hearing of the suit, examination of witnesses, all youngsters at your leisure. But then the question is as to by what standard of standard a fact can be proved? What is the standard which the court requires to come to a conclusion that a fact is proved? This question takes us to the standard of proof. Dealing with the jurisprudence both civil and criminal in the present context it is necessary to refer to two phrases regarding the two kinds of standard of proof. Though the Indian evidence act does not significantly make a distinction between the standards of proof required in the criminal prosecution and in civil cases however it is not well settled that in civil cases the rule of standard of proof is preponderance of probabilities whereas in the criminal cases it is proved beyond reasonable doubt. The two phrases or clauses are not mere small groups of words standing together but they are two distinct conceptual principles. It is explicit from the two standards which I mentioned that the standard of proof in a criminal prosecution is of a higher standard. Now I shall deal with for convenience first the preponderance of probabilities which is a standard of proof in a civil case. Preponderance of probabilities is the settled legal principle for standard of proof in a civil case. A fact can be proved in a civil case by mere preponderance of probabilities. This normal rule governs civil proceedings. The standard decision in my humble view for this proposal is Nara and Ganesh Dastanes case 1975 A.A. Supreme Court 1534. We have already made a difference in section 3 regarding proved, disproved and not proved. Under the evidence act section 3 a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of a particular case to act upon the supposition that it exists. The belief regarding the existence of a fact does this founded on balance of probabilities. Here we come to the point that preponderance of probabilities. So the belief regarding the existence of a fact does this founded upon balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists. If I am weighing the various probabilities he finds that the preponderance is in favor of the existence of a particular fact. So if the preponderance is in favor of a existence of a particular fact the prudent man acts on the supposition that the fact exists. So therefore the first step in this process is to fix the probabilities. Then the second step is to weigh them though the two may always intermingle. So in the process of evaluation of evidence what the court does in this standard of test is first of all the impossibility is weeded out. In the second stage the improbability is weeded out. Then what remains is what is probable. Then we come to who has to prove. We know what is the burden of proof. What is the standard of proof required in a civil case. Generally the rule is he who asserts must prove. But there may be circumstances where there may be a reversal of burden of proof. Say for example the presumption under section 138 of the negotiable instrument fact where execution is admitted the presumption is the consideration is passed. Therefore there is a reversal of burden of proof in that case. That is why in a civil case the standard of proof is very very important because unless we have a broad idea of this standard of proof it is very difficult to mean concentrate on the issues. In fact even to settle the issues that are to be determined and on which the court's decision rests ultimately. For example every issue in my humble view must be framed in the affirmative only unless there is a rule reversing the burden of proof. For example in a suit on the foot of a promissory note if the defense is total denial the legal burden being on the plaintiff the first issue will be whether the suit promissory note is true valid and binding on the defendant generally. We will not employ the word not in the issue because the issue must be in the affirmative. So when we remove the word whether in the issue and we read the statement the suit promissory note is true valid and binding on the defendant is a statement which generally the plaintiff makes. Therefore the issue indicates that the initial honest of proof or the burden of proof is on the plaintiff. Take another case illustratively the suit is for recovery of money on the foot of a promissory note on basis of a promissory note. The defendant admits execution but denies receipt of consideration. In view of the presumption which I mentioned under section 138 118 of the negotiable instrument set I am sorry 118 of the negotiable instrument set there is a reversal of burden of proof. Therefore when once the execution is admitted the presumption is that the consideration passes. In such a case keeping in view the standard of proof and also the preponderance of probabilities the court frames an issue whether the suit promissory note is not supported by consideration because of the reversal of the burden of proof. When we close the word whether and read the issue the suit promissory note is not supported by consideration is an assertion that the defendant makes. Therefore the issue indicates that the burden of proof is on the defendant the initial honesty is upon the defendant. But here we have to keep in mind one aspect what is a presumption. Presumption is an inference drawn by a court as to the truth of a particular fact from other known or proved facts. So we don't just draw a presumption without any prima facie case for one to draw a presumption as to the truth of a particular fact there must be some known or proved facts. Take the earlier case what is the known fact the defendant admitted execution of the promissory note that is the known fact from that we draw an inference that the consideration passed. So presumption is not itself evidence but only makes a prima facie case for the party in whose favor it exists. Therefore a presumption exists in fairer the plaintiff in so far as a promissory note where the execution is admitted. It makes a prima facie case for the plaintiff so far as the passing of the consideration and shifts the burden to the defendant. So when this is the presumption there is a tendency to draw presumptions and inferences without there being a prima facie case. That is why it is very important to know this fundamental principle as to what is a presumption. When both parties induce evidence despite a presumption in my humble view after the adduction of evidence both by both sides the significance of the presumption is lost. The presumption fails into insignificance because the evidence will determine the true nature of the fact to be established. This is to be borne in mind in so far as civil litigation is concerned. In this regard I request the attention of the youngsters to a decision in Saudi Transport Corporation case AER 1986 Supreme Court 1099 wherein there is a wonderful explanation about presumption. Saudi Corporation Transport Corporation case AER 1986 Supreme Court 1099. This brings us to the next aspect proof beyond as we were mentioning in a criminal case. The burden of proof according to the Indian Evidence Act Chapter 7 is generally on the person who asserts but in a civil case there will be pleadings assertions and did denials. Therefore facts in issue would arise but what about a criminal case? There is always a case of the prosecution it is undeniable. That is why before the trial starts in a criminal case the accusation or the charge is put to the accused then he pleads not guilty. Therefore there is a denial and hence the requirement of the prosecution proving its case would arise. It is well known principle in English criminal jurisprudence that an accused is presumed to be innocent until the prosecution proves his guilt beyond reasonable doubt. An accused is presumed to be innocent throughout his trial. Since we have adapted the English criminal jurisprudence it is the duty of the prosecution to establish all the ingredients of the offense with which the accused is charged and it is for the prosecution to prove the offense beyond reasonable doubt in all criminal cases except where relevant statutes provides otherwise. Except where the relevant statutes provide otherwise. The important decision on this aspect is Periyasami's case Periyasami v. State of Tamil Nadu 1997 criminal law journal 219 Supreme Court 1997 criminal law journal 219 Supreme Court. Thus the first cardinal principle is that person arraigned as an accused is presumed to be innocent unless that presumption is reverted by the prosecution by production of evidence as may show him to be guilty of the offense with which he is charged the burden never shifts to the accused. So this one cardinal principle which is always to be kept in view in our system of administration of justices the accused is always presumed to be innocent until the prosecution proves his guilt beyond reasonable doubt. This is the first cardinal principle so far as the standard of proof in a criminal case is concerned. So the burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of the burden the court cannot record the finding of the guilt of the accused this we have to bear in mind. Then in criminal cases when an accused is presumed to be innocent throughout the trial and the burden of proof as to the guilt of the accused beyond reasonable doubt rests on the prosecution the accused is not required to revert the case of the prosecution until the guilt is sufficiently established beyond the shadow of doubt beyond the shadow of doubt. So the accused in these cases is not required to give substantive evidence unlike in civil cases. It is sufficient if he is able to create a reasonable doubt in the mind of the court as to his guilt. If that doubt is created then it becomes necessary for him to prove the existence of circumstances bringing his case under the general exceptions pleaded provided he pleads the general exception otherwise not. So before going to the general exceptions let us talk of presumptions in criminal cases. We know that there are certain cases in which statutory presumptions arise regarding the guilt of the accused. But the burden in such cases in my humble view is upon the prosecution to prove the existence of facts which have to be presumed which have to be present before the presumption can be drawn. So even in cases where there are presumptions in statutes relating to criminal cases still the initial burden is on the prosecution to prove the existence of facts which are to be present before the presumption is drawn or the presumption exists. So in this case I would like to mention an illustration for example NDPS Narcotic Drugs and Psychotropic Substances cases. It envisages a reverse burden of proof with regard to culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him and it is for the accused to establish his innocence. In this regard we have to refer to Hanif Khan's case of the Supreme Court. Though a presumption exists and it is contrary to the normal rule of criminal jurisprudence that the accused is presumed to be innocent unless proved guilty that does not absolve the prosecution from establishing a prima facie case and unless a prima facie case is established the burden never shifts the accused and the presumption has no role to play. For example for this presumption under the stat the prosecution has to establish a prima facie case that the contraband is recovered from the accused unless this is established prima facie the burden of proof never shifts the accused. So because there is a reverse burden of proof the prosecution shall be put to a strict test for compliance with statutory provisions. This is to be borne in mind so far as the criminal jurisprudence is concerned and presumption in criminal jurisprudence. Then continuing with the standard of proof in a criminal prosecution we have to take note of the fact once again of the cardinal criminal jurisprudence principles namely presumption as to the innocence of the accused proof beyond reasonable doubt and number three burden is always on the prosecution except where the accused pleads exception. Please refer to Kali Ram's case AER 1970 Supreme Court 2773 where these cardinal principles are very well explained by the Supreme Court AER 1970 Supreme Court 2773 Kali Ram's case. Now the third principle I mentioned is burden is always on the prosecution except where the accused pleads exception. What is the relevant section? Section 105 of the Indian Evidence Act. When we read this section we understand that this section raises a presumption against the accused and also throws a burden on him to revert the said presumption. Under that section the court shall presume the absence of circumstances bringing the case within any one of the exceptions that is the court shall regard the non-existence of such circumstances as proved till they are disproved. So we can explain this based on illustration. Following facts we bring out the meaning of the provision of section 105. Before we go to the mean the illustration let me for the sake of the youngsters read the provision of law. Section 105 Indian Evidence Act burden of proving that case of accused comes with an exception. The provision reads like this. When a person is accused of any offense the burden of proving the existence of circumstances bringing the case within any of the general exception in the Indian Penal Court or within any special exception or proviso contained in any other part of the same court or any law defining the offense is upon him and the court shall presume the absence of such circumstances. How we can explain this provision? What is the meaning? Supposing the prosecution alleges that the accused intentionally shot the deceased with a firearm say a revolver but the accused repeats that though the shot emanated from his revolver and hit the deceased it was by accident. He says that the shot went off the revolver in the course of a struggle so he pleads the general exception under section 80 namely accident. So the defense of the accused under general exception is accident but the court under the section 105 presumes absence of circumstances bringing the case within the provision of section 80 of the Indian Penal Court. So it is for the accused to prove that it's a case of accident. So the presumption has to be reverted by the accused. How he reverts the presumption? There are three ways. One by reducing evidence to support his plea of accident in the circumstances which he mentions in his defense. The second he can revert the presumption by admissions made or circumstances elicited from the evidence of the prosecution. So by cross examining the prosecution witnesses and the circumstances which are constituting the prosecution case he can revert the presumption. He need not always reduce the evidence. The third category is combined effects. He may use evidence and also rely upon the circumstances in the prosecution case and also the points that are elicited from the prosecution witnesses. So these are the three kinds of evidence on which he can rely to revert the presumption. For example the same case the plea of the accused is it's an accident. The firearm went off during a struggle between him and the accused. Without reducing evidence what are the circumstances on which he can rely supposing the bullet passed from underneath the chin into the head. If somebody shoots at a person from a distance then the bullet generally will not pass from underneath the chin into the head. So this is a circumstance from the prosecution case. He can rely upon to show that it may be an accident. Then the accused is having a licensed revolver. He has that revolver with the permission of the government to kill the wild animals which generally stray into the village. Generally when he uses the revolver he fires all the shots. In the cylinder there are five chambers. He is used to firing all the bullets from all the chambers whenever he used the revolver in the past. But in this particular case only one bullet was fired and he says it's an accident. If he really intended to kill the deceased he would have fired all the bullets from the revolver without taking any chance. So he relies upon another circumstance to prove that it's an accident. Like that he can revert the presumption from the circumstances of the prosecution case or he may reduce evidence positively or he may rely upon both the circumstances in the prosecution case or his evidence. And also the combination namely the points elicited from the prosecution witnesses. For example an eyewitness is there. He is in the witness box. While cross-examining him the counsel for the accused poses a question. You have heard the shot which was fired. The sound of the shot that was fired. He says yes. At that time what is the possession of the accused and the deceased. The witness says they are both holding each other's hands. This point elicited suggests that the accused did not fire when the shot sound appeared or is heard by the witness. So this is the circumstance which the accused may rely by eliciting from the witness for the prosecution. That is how the presumption is reverted. Then another important aspect is even when the accused in his defense pleads any of the general exceptions contained in the penal court the plea of the accused person may reach any of the following three stages. The plea of the defense of the accused defense plea of the accused may reach only three stages. What are the stages? The first stage is lifting of the initial presumption reached at the end of section 105 of the Indian Evidence Act which we considered just now. The second stage is when a reasonable doubt as to the guilt of the accused is created. I stated the circumstances in which a doubt is created. The third stage is complete proof of the exception pleaded by preponderance of probabilities. These are the three stages. These three stages are mentioned in a landmark judgment. Rishi case, Singhs case. A year 1970 Alhabar, page 51. It is a decision which runs into more than 100 paragraphs where the entire case law was discussed. So when the plea of the accused does not go beyond the first stage he is not entitled to acquittal. But when the plea of exception reaches the third stage by proving it by preponderance of probabilities is naturally entitled to acquittal. Then what about the in-between case? The plea reached the second stage. The majority opinion is in such cases the accused is entitled to a benefit of doubt. The accused is entitled to a benefit of doubt. These are the three stages. Now coming back to our standard of proof. See here is a case where there is a presumption in the statute book reverting the burden on the accused. Here is a case where the accused pleaded a general exception. Then how the defense can establish the general exception and how the defense can revert the presumption which is contained in a statute book. What is the standard of evidence which is the accused is required to reduce in both the cases. In Haribajan Singh's case AER 1966 Supreme Court page 97 it was observed at page 101 as follows. Where the burden of an issue lies on the accused he is not required to discharge the burden by leading evidence to prove his case beyond a reasonable doubt. That is the test prescribed only for the prosecution. When an accused person is called upon to prove that his case falls under general exception lot reads the bonus as discharged if the accused person succeeds in proving a preponderance of probability. So when an accused person is called upon to prove that his case falls under an exception lot reads that bonus as discharged if the accused succeeds in proving a preponderance of probability. So far as the defense is concerned the standard of proof in a criminal case is preponderance of probability though for the prosecution it is proved beyond reasonable doubt. So these are some important aspects about standard of proof in a criminal case. Then continuing on this aspect of principles of criminal jurisprudence it is also apt to note the following aspects. The golden thread which runs through the cobweb of criminal jurisprudence is that nine guilty may escape but one innocent should not suffer. There are also principles beneficial to the accused in criminal jurisprudence namely benefit of doubt, right to silence, right of opportunity under section 313 of the CRPC to explain the incriminating circumstances in the evidence of the prosecution, right to be hered on the measure of sentence, rules of prudence like looking for corroborating and assuring material etc. So these are some beneficial mean principles in the criminal jurisprudence which also are favorable to the accused. All the above features in a criminal law clearly emphasize that the standard of proof in a criminal case is higher than in a civil case. Like for example what is the meaning of looking for corroboration or assuring material? See when we go to accomplice there are two provisions in the Indian Evidence Act. One is section 133 which says an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorrelated testimony of an accomplice. So this section says that accomplice who is a partner in crime if he gives evidence on behalf of the prosecution a conviction is not illegal merely because it proceeds upon the uncorrelated testimony of an accomplice. But section 114 illustration B of the Indian Evidence Act says an accomplice is unworthy of credit. An accomplice is unworthy of credit unless his testimony is corroborated by material particular. So it appears from these two provisions there is a conflict. But the Supreme Court resolved the conflict and said that though it is not illegal to base a conviction on the uncorrelated testimony of an accomplice yet he being a partner of the crime it is always necessary to look for material corroboration it is a rule of prudence. So that is how the Supreme Court held that it is necessary for the prosecution to prove material corroboration of an accomplice's evidence. Then another golden threat that runs through the cobweb of criminal jurisprudence and what is required in criminal cases is that when two views are possible on the evidence reduced in the case one pointing to the guilt of the accused and the other to the innocence the view which is favorable to the accused must be preferred that must be adopted. This principle has a special element in cases where the guilt of the accused is being sought to be established by circumstantial evidence. A rule has accordingly been laid down that unless the evidence reduced in the case is consistent not only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence the court should refrain from regarding a finding of the guilt. So when two views are possible the view favorable to the accused must be adopted and when evidence is reduced in the case the evidence must not only be consistent with the hypothesis of the guilt of the accused and must be inconsistent with that of his innocence then only a finding of guilt can be recorded. Coming once again to the benefit of doubt to deal with it in detail it is an accepted rule that in case the courts entertains a reasonable doubt regarding the guilt of the accused the accused must have the benefit of doubt. Of course the doubt regarding the guilt of the accused should be reasonable it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding benefit of doubt also does not warrant acquittal of the accused by reason by resorting to premises, conjectures and fanciful consideration. The these are the guidelines given in a decision state of Punjab versus Jagir Singh 1970 Supreme Court a year I did not note the page number I am sorry state of Punjab versus Jagir Singh 1970 Supreme Court a year so it is to be re-emphasized although the benefit of every reasonable doubt should be given to the accused the court should not at the same time reject the evidence which is ex-faceted trustworthy on grounds which are fanciful or in the nature of conjecture this is about benefit of doubt. Another important aspect is it is a primary principle in fact that the accused must be and merely must be and not merely may be guilty before a court can convict him the accused must be guilty and not merely may be guilty the material distinction between maybe and must be is a long and dividing factor therefore vague conjecture and the primary principle is that the accused must be and not merely may be guilty before a court can convict and the mental distinction between maybe and must be must be maintained Kali Ram's case I have already given the citation Kali Ram's case 1970 Supreme Court now standards of proof and now let us turn to burden of proof vis-a-vis honest of proof burden of proof in my humble view is understood in two senses firstly it means establishing the whole case burden of proof means establishing the whole case secondly it means the particular stage of the proceeding so there are two kinds of senses in the words burden of proof it means establishing secondly it means introducing evidence at any particular stage of the procedure there is an essential distinction between burden of proof and honest of proof burden of proof person who has to prove a fact and it never shifts therefore it is called legal burden but the bonus of proof shifts therefore in my humble view bonus of proof is evidentiary burden bonus of proof is evidentiary burden and it never burden of legal proof burden of proof which is a legal burden never shifts whereas the bonus of proof which is an evidentiary burden shifts from side to side during the course of trial and also during evaluation of evidence this essential distinction between the two must be maintained please refer to a ragamma versus a chanchamma a year 1964 supreme court 136 then how we have to deal with the honest of proof see for example in a civil case the promissory note recites the consider that the consideration has been given by means of a bank check the defense of the accused is that the consideration did not pass he files his bank account and shows that the check number which is mentioned in the promissory note was not uncashed by him and the consideration under the set check did not pass to him so the bonus of proof is discharged by the accused by the defendant and the bonus to introduce evidence shifted to the plaintiff to prove that the consideration passed the plaintiff may induce evidence no doubt the check number mentioned in the promissory note is a wrong number the last digit should have been five instead of four the check number is wrongly mentioned in the promissory note because of the last digit wrongly being mentioned in fact the consideration passed the real check is with the correct number it is uncashed the and the the plaintiff produces the evidence of the banker to show that the check with that number which is mentioned in the plaintiff bleeding is really uncashed by the defendant again the bonus shifts to the defendant to prove as to whether the second check which the plaintiff is mentioning in his pleadings and evidence is uncashed or not that is how during course of the trial the evidence the honest shift from side to side another example so for recovery of possession based on title the we know the standard rule shoot for recovery of possession in a based on title the burden is on the plaintiff the plaintiff must succeed on his own strength but he cannot rely upon the weakness of the defense then how the bonus works here is the proof a strict standard of proof like in a criminal case or it is a proof based on preponderance of probability as we have noticed from raghavama's case there is an essential distinction between burden of proof and honest of proof burden of proof lies upon a person who has to prove the fact and which never ships honest of proof ships then what is this shifting the answer is in rve Venkatakal Gounders case of the supreme court it is a decision rendered in the year 2003 his supreme court opined that in a suit for possession based on title once the plaintiff has been able to create a high degree of probability as to his title the bonus shifts to the defendant if the defendant fails to induce any evidence and discharge the burden which shifted upon him then prove the bonus of proof ships from side to side here we have to bear in mind one more aspect when there are facts in issue and which are to be proved by the parties and when on some issues the burden is on the plaintiff and on the other issues the burden is on defendant then we have to look at order 18 of the court evidence is to be used on several issues rule 3 says where there are several issues the burden of proving some lies on the plaintiff but on the issues the burden lies on the other party then the plaintiff who begins the suit may at his option either produce his evidence on those issues on which the burden is on the defendant or reserve his right to induce evidence by way of answer the evidence that may be produced by the defendant on such issues on which the burden of proof lies on the defendant that is how the honest of proof shifts from side to side either in a civil case where there are presumptions or where there are no presumptions similarly in a criminal case when the presumptions are pleaded or are there in the statute book or when general exceptions are pleaded the burden is on the defendant provided a prima facie case for drawing a presumption is made by the prosecution or when the when the accused is able to discharge his burden by reducing evidence only to the extent of preponderance of probable probabilities to discharge his burden with these few submissions I thank the audience for the patient hearing sorry sir I'm I am not in my usual self today I'm sure I'm I'm I'm of the view that I did not justify I mean also it's fine I'm somehow I'm not in my usual self today no no we are all enjoying the session okay thank you in fact Sandeep has been kind enough to share the judgments which you are sharing okay okay sir thank you yes sir anything else sir any any panelists would share their views on this yes sir two questions have been posted so far advocate Sachin Anand what is the legal position on confrontation of a document during evidence without producing it in the court earlier see documents can be produced at three stages one is for the plaintiff along with his pleadings for the defendant along with the pleading that is the settled legal position then for both parties there is another opportunity to produce documentary evidence with the leave of the court that is the second category the third category is only for the defendant he can produce documents at two stages see the plaintiff the defendant receives a notice he has three months time under law for filing his written statement he can file all his documents along with the written statement but in the meanwhile within this three months period an interlock duty application comes up for hearing at that stage also the defendant can file his document that does not prevent him from filing his documents again if any left out along with the written statement these are the stages at which the documents will be filed then one more stage at which the documents can be filed is confrontation to the witness a document during cross examination there need not be a prayer notice for this there is a daily high court ruling that any document can be produced during cross examination the witness who is being cross examined need not be another of the document when it is confronted to him if he is somehow connected with the document either as a attestor or having knowledge of the document having earlier seen it he can be confronted with the document during the cross examination and the salam bar association case number two also the supreme court clarified that such a document can be confronted to the evidence and to the witness during the cross examination these are the stages in which the document can be produced by the fund I hope I'm clear yes sir this is by Ayushi Mishra in civil cases if there are presumptions to what standard should the evidence be produced presumptions so far as the presumptions is concerned the standard because the presumption is not by itself evidence as I was mentioning earlier presumption only makes out a prima facie case in favor of the party in whose favor it exists I also mentioned an illustration from the civil law that is 118 of the negotiable instruments act and also under the NDPS act and have given Hanafi's case which is the recent decision of the supreme court presumption being only a rule of evidence and not any evidence by itself it only indicates on whom the initial owners of proof lies like for example I'll repeat the illustration same illustration to turn the foot of a promissory note either the defendant admits the execution or by some evidence the plaintiff proves that the defendant executed the promissory note so there are some known facts or proved facts or admissions before the court to the extent that the execution of the promissory note is proved then 118 of the negotiable instruments act says once execution is admitted or proved the presumption is that the consideration passed therefore in such a case the owner sees on the defendant to rebut the presumption be it a civil case or a criminal case when the owner shifts to the other opposite party the proof can only by the standard preponderance of probabilities Ganesh Tiwari says how can we prove a malicious prosecution malicious prosecution it's very difficult to prove in two thousand two hundred and seventy two hundred and seventy seven law commission report there is a beautiful discussion on this preponderance of probabilities I mean in malicious prosecution the law commission suggested that after facing trial and after being incarcerated for some time during the course of trial and pretrial procedures the accused is cleanly acquitted then there is no mean settled law in the country for compensating such accused who is acquitted after incarceration and long trial then what is to be done the 277 law commission report suggested that the state must to take initiative and create a system of compensating such accused who are acquitted after incarceration and a clean acquittal is recorded I would like to mean mention from that if I can find readily so Sandeep has otherwise posted the law commission report on the whatsapp 277 report yes sir if you can do that well and good no he has posted on the group okay if you tell the relevant page I can ask Sandeep to share that particular page yes sir yes I will I'll try to give you we'll go to the next question in the meanwhile I'll if the Gopi if documents have been marked during the cross examination without any pleadings to that effect in the plaint or written statement what is the legal position in that case if he can illustrate I can better explain but the settled legal position is any amount of evidence without a pleading is of no relevance any amount of evidence without a pleading without a foundation in the pleading is of no consequence it cannot be looked into see for certain aspects there need not be a pleading for example it's a suit on the foot of a promise or not once again or it is a suit where the document is a compulsorily attestable document the suit is based on compulsorily attestable document like a gift deed like a will deed then a witness is confronted a attestor has come to prove the due execution of the document he's confronted with a document namely a photograph to show that on the date the will was executed at New Delhi he was attending a marriage in Mumbai he admits the photograph and his presence in Mumbai on the day see for this no pleading is necessary it's a matter of evidence shows that the witness is not present in Delhi when the will is allegedly executed at Delhi by the testee he was at Mumbai therefore there is no possibility of this witness being presented Delhi and and attesting the document therefore it all depends upon the facts and circumstances of the case supposing if it is a material fact that is sought to be proved by cross examination by giving a document to the witness then the rule that no amount of evidence can be looked into without a foundation in the pleadings would apply then what is a material factor what is a material proposition material fact is one in case of plaintiff which constitutes the cause of action which the plaintiff is required to prove to succeed and get the relief in the suit similarly a material fact for the defendant is such a fact which the defendant has to prove to succeed in his defense if those material facts on those material facts a document is confront confronted a witness and then it is marked but the relevant pleading regarding that document is not there in the pleading then any amount of evidence cannot be looked into because there is no foundation in the pleading yes this is manju in a partition suit should the defendant examine himself first and subject to cross examination or the attesting witness of a will is to be examined d3 has led examination in chief dw1 and got marked several documents as exhibit d series d series yeah defendants only i see see in our civil looms of practice we mark documents in four categories a series for the plaintiff b series for the defendant c series c series for the court c is for the court c series for the court and i mean x series for the witnesses that that is how we mark the documents out here we only write the pw1 and dw1 pw1 and dw1 pw1 is the plaintiff and dw1 is the defense witness how do we write out there and for the court court document court document is c series c series court document namely suppose a commissioner's report is filed it is a it will not be written to any of the parties it is a part of the court record it will be marked as a c1 c2 c3 like that commissioner's plan is c2 commissioner's report is c1 supposing the question is the witness is not the mean the mean the the scribe of the document the witness comes and says i scribe the document his evidence is disputed he is given a piece of white paper and some material is dictated to him in the court hall and as a witness he scribes what is dictated that piece of paper with his handwriting is marked for comparison tomorrow with the disputed handwriting it will be marked in c series because it is written in the court hall it is nobody's document and dw1 how do you substantiate that x1 is a witness document x series supposing an mr y summoned to produce a revenue record it will be returned again to the government it must go to the government so to indicate that it is not in either of the parties are entitled to return of the document we will mark it in x series x1 x2 x2 like that a witness brings a document it will be returned to the witness only yeah except those those documents which are superseded will not be written suppose a suit promissory note is there suit is decreed or dismissed promissory note will be superseded by drawing in lines across it it will not be written to anybody so in case of a will who is to be first examined see the plaintiff files a suit on the basis of his father's will naturally his father is no more so he has to prove the will to get the property that is bequeathed under the will to him so he is the propounder he must be first examined he will formally mark the will for identification mere marking is not proof there is a distinction between marking and proof as we all know marking is not proof the will will be proved by bringing calling upon an attester because will is a compulsorily attestable document under the indian succession act like a mortgage deed is a compulsorily attestable document under the transfer of property so also gifted under the transfer of property the fourth document is bond under the stamp act which is a compulsorily attestable document but the ap high court will been set simply because a bond is not attested when it is not having all the ingredients till it will be a bond because the definition under the indian stamp act is only an inclusive definition so there are only now three kinds of documents which are compulsorily attestable mortgage deed gifted deed or settlement deed and then will be Manju takes her question a step forward it says in in this case the will was produced by the defendants plaintiff is not aware of the will see the whether the whether the defendant pleaded the will in the written statement I understand this is the written statement and the copy of the written statement is served upon the plaintiff it is the duty of the plaintiff to file a rejoinder if necessary with the permission of the court denying or accepting the will and if the will copy is not supplied he must be he must bring it to the notice of the court that the defendant pleaded a will filed it with the written statement the original will but a copy is not served then the court will direct a copy to be given otherwise he can inspect the will by seeking permission of the court and then file a rejoinder either accepting or denying the will Gopi says what are the circumstances where the defendant has to commence the trial first when the initial honors of proof is on the defendant that is why I said the issues must be framed always in the affirmative if the issues is are framed in the affirmative and all the issues are in the affirmative means the plaintiff must get into the box like again I will come come back to the same question a suit is based on a will the plaintiff says that the property mentioned in the will is the separate property of the father it is also the suit schedule property all the property is bequeathed to him based on the said will the plaintiff filed a suit the defendant sets up a plea in the defendant who is the brother of the plaintiff says the will is a forgivable in the absence of a will succession law would apply both the plaintiff and defendant will be entitled to a half share each in the father's property and the father died interstate is the defense then the issue will be whether the will dated so into said to have been excluded by the father of the parties is true who asserts the will is true the plaintiff asserts the rule of evidence is he who asserts must prove therefore the plaintiff must prove the will supposing take a case the defense is the will is executed by the father is correct but the property is not the separate property of the father it is ancestral property nature of the property is disputed so far as the proof of the will is concerned the burden is not on the plaintiff the will is admitted by admission the will is proved the only question is whether the property separate property of the father or the ancestral property has content wise contented by the defendant if the if the property is the ancestral property father has a right only to execute a will to the extent of his share but he cannot execute a will for the entire property therefore the will would be valid only to the extent of the share of the father even in such a case also the burden is on the plaintiff to prove whether the property is a separate property or ancestral property because the initial owners of proof that is the legal burden is on the plaintiff if the plaintiff proves it uses his evidence then they want to shift to the defendant to prove his defense then after both parties abuse evidence then the the rule of burden of proof fails into insignificance insignificance and it is for the court to base on the evidence to base its decision on the evidence it used this question is posted on the facebook this is by anshu agarwal a document marked in the cross is taken on record so the party putting the document in cross if denies by if it is denied by the other party the party who had put the document in cross can be allowed to prove the document exception is that the party shall not be taking advantage to prove the document which he should have duty to prove for establishing his own case that is his take i thought it's a question the last question is by sanjay in a suit along with other issue an issue whether the document dated is so is the last legally valid executed will of the deceased is framed and the owners is on d1 to prove the same after the case d15 the test case now will now now where will now whether that will will be considered to be proved no i'm not able to follow the question so i think that question also requires a reframing but still i will try to frame it in a suit one of the issue frame was whether a document dated so is the last legally valid executed will of the deceased is framed and the owners is on dw1 to prove the same after the same dw1 file the file the test case now will this will the will be considered to be proved i have not been not clear is when the question is whether the will executed by showing so is the last will it's a question of fact it's a question of fact it all depends upon the facts of the case and the evidence it used right we will not be taking any questions but i'm just telling the tomorrow's session tomorrow's webinar would be law of mortgages with special reference to banking law by mr sp shankar senior advocate karnataka high court do stay connected with us at 5 p.m and so i would like to share that today on the facebook the there are a lot of participants who are watching i will share with you the screenshot it only shows that the knowledge which you have shared people have actually cherished it because there is a consistent uh growing strength of the facebook i'll share the screenshot and uh no no i don't think i did this today to my talk like uh i can only humbly say it is just like the dhulkar getting out at 90 and he feels that he couldn't score 100 but at least we all enjoyed thank you so much it's nice of you no no actually the subject was such to just suppose everything burden of proof owners of proof and standards of proof uh is a job which only an expert can make you understand so in fact we are all delighted the way you have expressed the things and we are all enamored the way you have expressed it and uh thank you to all the participants who have watched us live on the facebook as well as on those who have participated in this platform and uh on behalf of all the participants who will also watch us on the our channel of beyond law clc since this video will be uploaded from all the participants who have watched and who have enriched their knowledge from a speaker who has shared his knowledge in his profuse manner and decimating knowledge which will go down in their memories uh on their behalf i thank just as msr murthy uh thank you for spending the time and sharing your knowledge with us we're all thankful to you thank you sir thank you thank you