Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Situational Problems BSA: Set 03 (Burden of Proof)
Q 1. A sues for money due on a bond the execution of bond is admitted but โBโ says it was obtained by fraud which โAโ denies.
a) Whom burden of proof lies A or B? Give reason with provision.
b) In above matter if execution of bond is not admitted what difference it makes? Thenย burden lies on whom to prove? Give reason.
a) According to Section 105 of the Bharatiya Sakshya Adhiniyam, 2023, 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. Hence in this case the burden of proof lies on โBโ
b) If the execution of the bond is not admitted, in such a case, the burden of proof would lie on โAโ.
Q 2. A, accused of murder, alleges that by reason of unsoundness of mind, he did not know the nature of the act.
a) On whom the burden of proof lies?
b) Under what provision? If A fails to prove, what the consequence is?
a) Burden of proof lies on A.
b) According to Section 105 of the Bharatiya Sakshya Adhiniyam, 2023, 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.
A is taking the defence of unsoundness of mind under Section 22 of the Bharatiya Nyaya Sanhita, 2023. According to Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, 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 Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
If A fails to give necessary evidence for his statement, he will be convicted for the offence of murder under Section 103 of the Bharatiya Nyaya Sanhita, 2023.
Q 3. A is accused of causing grievous hurt alleges that by grave and sudden provocation, he was deprived of the power of self-control
a) Burden of proof lies on whom to prove the said fact? Give reason.
b) If A proves that he committed the grievous hurt under grave and sudden provocation, for what offence he can be convicted? Explain with the provision.
a) Burden of proof lies on A. According to Section 105 of the Bharatiya Sakshya Adhiniyam, 2023, 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.
A is taking the defence of unsoundness of mind under Section 22 of the Bharatiya Nyaya Sanhita, 2023. According to Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, 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 Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
b) If A gives necessary evidence for his statement, he will be convicted for the offence of voluntarily causing grievous hurt on provocation under Section 122(2) of the Bharatiya Nyaya Sanhita, 2023.
Q 4. Mr. Aโs death was very suspicious. His relative alleged that his death occurred due to poison. Whose witness will be relevant here? Why?
Here opinion of medical expert / coroner must be taken. A Forensic Medicine Expert or Coroner is a medical professional who works in coordination with others like a coronary investigator to determine the cause of death of a person who may have died in mysterious circumstances.
Sections 39 to 45 of the Bharatiya Sakshya Adhiniyam, 2023 deal with the relevancy of opinions of third persons. The provisions under these sections are exceptional to natural rule of law of evidence where the evidence is only that fact which is given by the witness on the basis of his knowledge and belief. This exception states that the court cannot draw its opinion on the technical matters as well as complicated matters which require the special knowledge of the person having acquired expertise on the relative field.
According to Section 39(1) of the Bharatiya Sakshya Adhiniyam, 2023, an expert is said to be a person having knowledge or expertise in any of the field like foreign law, science, art, identity of handwriting or finger expression and where such knowledge has been gathered by him by practice, observation, studies. The primary obligation of the expert witness is to assist the court on the cases which fall under the ambit of their expertise. They are not bound to compel the parties to pay their fees who have appointed them.ย Expert evidence is opinion evidence and it cannot replace the substantive evidence. It is the rule of the procedure that the expert witness must be corroborated either by direct evidence or by circumstantial evidence.
More Situational Problems:
- Set 01: Admission and Confession
- Set 02: Dying Declaration
- Set 04: Privileged Communication
- Set 05: Documentary Evidence
- Set 06: Witness
- Set 07: Miscellaneous
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