The Evidentiary Conundrum: Proving a Negative Fact in Indian Jurisprudence

Introduction

The edifice of the law of evidence is built upon the foundational maxim, ei incumbit probatio qui dicit, non qui negat—the burden of proof lies on him who asserts, not on him who denies. This principle, enshrined in Section 101 of the Indian Evidence Act, 1872, dictates that a party seeking a favourable judgment must prove the existence of the facts they assert. A corollary to this rule is the long-standing, albeit often oversimplified, notion that a negative cannot be proven (negativa non sunt probanda). However, Indian jurisprudence has grappled with the practical reality that legal rights and liabilities can, and often do, depend on the non-existence of a particular fact. The courts have, therefore, developed a nuanced and sophisticated framework that, while acknowledging the inherent difficulty of proving a negative, provides procedural and substantive pathways to discharge such a burden.

This article analyses the approach of the Indian judiciary to the challenge of proving a negative fact. It examines the interplay between the general burden of proof under Sections 101 and 102 of the Evidence Act and the specific exceptions and tools provided by other statutory provisions, most notably Section 106 and Section 114. Through an analysis of landmark judgments, this article will demonstrate that Indian law, rather than treating the proof of a negative as an impossibility, employs a pragmatic approach involving the shifting of onus, the doctrine of adverse inference, and a variable standard of proof contingent on the circumstances of the case.

The General Rule and Its Inherent Challenge

The Foundational Principle: Sections 101 and 102

Section 101 of the Indian Evidence Act, 1872, establishes the primary rule regarding the burden of proof, stating that 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. This is the legal burden, or the *onus probandi*, which is static and never shifts. Section 102 complements this by defining the evidentiary burden—the onus of adducing evidence—which lies on the person who would fail if no evidence at all were given on either side. This onus is dynamic and may shift during the course of a trial. As observed by the Supreme Court in Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558, and reiterated by the Gauhati High Court in On The Death Of Chanowar Hussain v. Nurjahan Begum (2015), this distinction is crucial. The initial onus is invariably on the plaintiff to establish a case, after which it may shift to the defendant.

Judicial Acknowledgment of the Difficulty

The Indian judiciary has repeatedly acknowledged the intrinsic difficulty of proving a negative proposition. In PRADEEP S/O RAJKUMAR JAIN v. MANGANESE ORE(INDIA) LIMITED (2021), the Supreme Court, while discussing the issue of back wages, noted that once a workman states he was not gainfully employed, the onus shifts to the employer to prove that he was. The Court provided a clear rationale for this shift: "It is always easier to prove a positive fact than to prove a negative fact" (para 38.3). This sentiment was echoed in V.N Bharat v. Delhi Development Authority And Another (2008), where the Court held that the DDA, not the allottee, had the burden of proving service of a demand notice. The Court observed that "except for denial there is nothing else that the appellant could have produced to prove a negative fact" (para 28), thereby refusing to place an impossible burden on the litigant. Similarly, the Allahabad High Court in Jamuna Prasad v. The Dy. Director Of Consolidation (1980) remarked that "it is not possible for a party to prove a negative fact."

The Madras High Court, in the seminal case of M. Krishnaswami Naidu v. Secretary Of State (1941), provided a foundational articulation of this principle. The Court held that if a party's right depends on the non-existence of certain facts, "it is as much his duty to establish those negative facts as it would be of proving positive facts." However, it crucially qualified this by stating that the *degree* of proof required is different. In many cases, a party can do no more than adduce prima facie evidence of the negative, which is sufficient to shift the onus to the other side to prove the affirmative.

Statutory Mechanisms for Navigating the Negative Proof

Recognizing this practical conundrum, the Indian Evidence Act and judicial interpretation thereof have forged specific tools to ensure that the difficulty of proving a negative does not lead to a miscarriage of justice.

Shifting the Onus: Section 106 of the Evidence Act

Section 106 of the Evidence Act is the most potent instrument for addressing this issue. It provides that when any fact is "especially within the knowledge" of any person, the burden of proving that fact is upon him. This section acts as an exception to the general rule in Section 101. It does not relieve the prosecution or plaintiff of their primary burden, but once a prima facie case is established, it shifts the onus of explaining facts that are exclusively known to the other party.

The Supreme Court has powerfully applied this section in criminal cases based on circumstantial evidence. In State Of W.B v. Mir Mohammad Omar And Others (2000), where the victim was abducted by the accused and later found dead, the Court held that since the accused had exclusive knowledge of what transpired after the abduction, the burden was on them under Section 106 to explain the circumstances of the victim's death. Their failure to do so allowed the court to draw an adverse inference of murder. Similarly, in State Of Rajasthan v. Kashi Ram (2006), where the accused was the last person seen with his deceased wife and children in a locked house, the Court invoked Section 106, stating that the accused was bound to provide an explanation for the deaths. His failure to do so was a strong circumstance against him. It is pertinent to note, as held in Laxman Singh v. State Of Chhattisgarh (2023), that Section 106 operates only after the prosecution has discharged its general burden of establishing a prima facie case.

Rebuttable Presumptions and the Standard of Proof

Statutory presumptions provide another structured mechanism for dealing with negative proofs. In such cases, the law presumes the existence of a fact, and the burden of proving its non-existence (a negative) is placed on the party against whom the presumption is drawn. However, the standard of proof required to rebut such a presumption is typically lower than the standard required for the prosecution in a criminal case.

This is exemplified in cases under the Negotiable Instruments Act, 1881. In M.S Narayana Menon Alias Mani v. State Of Kerala And Another (2006), the Supreme Court clarified that while Sections 118 and 139 create a presumption in favour of the holder of the cheque, this presumption is rebuttable. The accused, to prove the non-existence of consideration or debt (a negative fact), need not prove his case beyond a reasonable doubt. The burden is discharged if he can prove his case on a "preponderance of probabilities." As the Madras High Court noted in G. Raja & Others v. M. Lakshmanan (2019), once the accused adduces such convincing rebuttal evidence, the presumption "disappears," and the legal burden shifts back to the plaintiff. The Calcutta High Court in Swapan Mondal v. State (2021) further affirmed that the persuasive burden on an accused to rebut a statutory presumption is on a balance of probabilities.

This principle extends to other areas of law. For instance, in tax penalty proceedings, as seen in Commissioner Of Income-Tax v. Subhagchand Kapoorchand (1984), where the Explanation to Section 271(1)(c) of the Income Tax Act created a presumption of concealment, the Patna High Court held that the initial onus on the assessee to prove a negative fact (that there was no conscious concealment) could be discharged on a preponderance of probabilities, recognizing that the standard of proof for a negative fact cannot be the same as for a positive one.

The Doctrine of Adverse Inference: Section 114, Illustration (g)

Section 114 of the Evidence Act allows courts to presume the existence of certain facts. Illustration (g) is particularly relevant, stating that the court may presume that "evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." This doctrine provides a powerful tool for a party tasked with proving a negative. They can discharge their burden by pointing to the failure of the opposing party, who is in possession of the best evidence of the affirmative, to produce it.

The landmark case of Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others (1968) is the locus classicus on this point. The appellant claimed ownership of a property but failed to produce the relevant account books in his possession. The Supreme Court held that a party in possession of relevant documents should not be permitted to withhold them and then rely on the abstract doctrine of onus of proof. The Court drew an adverse inference that if the documents had been produced, they would have been unfavourable to the appellant's case. This principle effectively allows the court to accept the non-existence of a fact when the party best positioned to prove its existence fails to do so.

Conclusion

While the ancient maxim that a negative cannot be proved holds some logical appeal, the Indian legal system has demonstrated a pragmatic and evolved understanding of this evidentiary challenge. The jurisprudence reveals a clear departure from treating this as an absolute bar. Instead, Indian courts have woven a sophisticated tapestry of rules that balance the burden of proof fairly between litigants.

The framework rests on several pillars: the judicial acknowledgment of the inherent difficulty of proving a negative, leading to a lower prima facie standard of proof; the potent application of Section 106 of the Evidence Act to shift the onus onto the party with special knowledge; the use of rebuttable statutory presumptions that require proof on a preponderance of probabilities; and the robust application of the doctrine of adverse inference under Section 114 against a party who withholds the best evidence. Together, these principles ensure that the burden of proving a negative, while challenging, is not an insurmountable obstacle to justice, thereby upholding the integrity and fairness of the adjudicatory process.