evidence ch 8

7/28/2019 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.

-

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.

-

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;

-

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;

-

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;

-

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?

evidence ch 8

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