(i) the party who would be unsuccessful

(i) The burden of proof as a matter of law and pleading, the burden, as it has been called, of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed, at the beginning of the trial, by the statements of the pleadings, and it is settled as a question of law, remaining unchanged under any circumstances whatever. This rule is embodied in Section 101.

(ii) The burden of proof as matter of adducing evidence. The burden of proof in this sense is always unstable, and may shift constantly throughout the trial. This aspect of the burden of proof is contained in Section 102. It lies at first on the party who would be unsuccessful if no evidence at all was given on either side. This being the test, the burden of proof cannot remain constant, but must shift as soon as he produces evidence which prima facie gives rise to a presumption in this favour.

It may again shift back on him, if rebutting evidence is produced by his opponent. This being the position, the question as to the onus of the proof is only a rule for deciding on whom the obligation rests of going further if he wishes to win. As observed by the Gauhati High Court, in a criminal trial, the burden of proving the prosecution’s case lies squarely on the prosecution and this general burden never shifts. The defence version may even be false; nevertheless, the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving the case beyond ail reasonable doubt.

(Md. Alimuddin v. State of Assam, 1992, Cri. L.J. 3287)

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