Rules Relating to the Burden of Proof Under the Bharatiya Sakshya Adhiniyam, 2023

The enforcement of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a transformative era in Indian evidentiary jurisprudence, repealing and replacing the colonial-era Indian Evidence Act, 1872. While the BSA modernises several aspects of courtroom evidence—especially electronic and digital records—it also consolidates, restructures, and reaffirms the core doctrines that govern litigation.

Among the most fundamental principles in procedural law is the burden of proof (onus probandi). Whether you are defending a criminal prosecution under the Bharatiya Nyaya Sanhita, 2023 (BNS) or pursuing a civil suit before a commercial court, understanding who bears the legal responsibility to prove a fact can determine the outcome of a case before the first witness steps into the box.

This article examines the statutory framework, rules, and practical applications of the burden of proof under Chapter VIII of the Bharatiya Sakshya Adhiniyam, 2023.

Understanding the Concept: Legal Burden vs. Evidentiary Burden

Indian evidence law draws a clear line between two distinct concepts:

The Legal Burden (Burden of Establishing a Case): This is the obligation imposed on a party to prove their primary case to the requisite legal standard. In criminal trials, this rests almost invariably upon the prosecution. It remains static throughout the proceedings and never shifts.
The Evidentiary Burden (Onus of Proof): This refers to the responsibility of adducing evidence to introduce or rebut a specific factual assertion during the trial. Unlike the legal burden, the evidentiary burden can oscillate between parties as evidence is produced and presumptions are triggered.

Key Provisions Under the Bharatiya Sakshya Adhiniyam, 2023

Chapter VIII of the BSA (Sections 104 to 120) codifies the rules determining which party must lead evidence and when that obligation shifts.

1. The Fundamental Rule: He Who Asserts Must Prove (Section 104)

Section 104 of the BSA establishes the foundational premise of evidence: whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which they assert, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In a criminal complaint under the BNS, the complainant or prosecution asserts that the accused committed an offence; therefore, the primary burden of establishing guilt rests on them.

2. On Whom the Burden of Proof Lies (Section 105)

Section 105 of the BSA provides an objective litmus test: 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.

Illustration: If 'A' sues 'B' for recovery of money based on a promissory note, and 'B' admits the signature but claims it was obtained through coercion, the burden initially lies on 'B'. If neither party adduces evidence, 'A' would succeed on the admitted signature, so 'B' fails unless coercion is established.

3. Burden as to Particular Facts (Section 106)

Under Section 106 of the BSA, 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.

For example, if an accused pleads an alibi—asserting that they were in Thane or Pune when an alleged crime took place in South Mumbai—the burden to establish their physical presence elsewhere at that precise time lies strictly on the accused.

4. Proving Admissibility of Secondary or Electronic Evidence (Section 107)

Where a party seeks to introduce secondary evidence or electronic records that require foundational verification, Section 107 of the BSA places the burden on that party to prove the circumstances entitling them to produce such evidence (for instance, showing that an original document is lost, destroyed, or in the possession of the adversary).

5. Accused Claiming Exceptions Under the BNS (Section 108)

When a person is accused of any offence under the Bharatiya Nyaya Sanhita, 2023, the burden of proving the existence of circumstances bringing the case within:

Any General Exception (such as private defence, unsoundness of mind, accident, or infancy under Chapter III of the BNS), or
Any special exception or qualification contained in the definition of the offence,

lies squarely on the accused under Section 108 of the BSA. In such cases, the court presumes the absence of such circumstances until the defence raises sufficient evidence.

6. Facts Especially Within Knowledge (Section 109)

One of the most litigated rules in Indian courts is contained in Section 109 of the BSA (corresponding to Section 106 of the old Evidence Act). When any fact is especially within the knowledge of any person, the burden of proving that fact is upon them.

Application in Criminal Law: Section 109 cannot be invoked by the prosecution to bypass its initial burden of proving a prima facie case. However, once the prosecution establishes foundational facts—such as the "last seen together" theory where the deceased was last seen alive exclusively in the company of the accused in a closed room—the burden shifts to the accused to explain what transpired, as that fact is especially within their knowledge.
Application in Civil Matters: If a passenger travels without a valid ticket on Western Railway in Mumbai, the fact of having purchased a ticket is especially within that passenger's knowledge, and the burden to produce it rests upon them.

Statutory Presumptions and the "Reverse Burden"

While the baseline principle of criminal justice remains the presumption of innocence, the BSA incorporates statutory provisions where the law presumes guilt or specific mental states upon proof of foundational facts. This is commonly termed the reverse burden of proof.

1. Presumption as to Abetment of Suicide by a Married Woman (Section 117)

If a woman dies by suicide within seven years of her marriage, and it is shown that her husband or his relatives subjected her to cruelty (as defined under Section 85 or 86 of the BNS), the court may presume under Section 117 of the BSA that such suicide was abetted by them.

2. Presumption as to Dowry Death (Section 118)

Where a person is charged with the dowry death of a woman under Section 80 of the BNS, and it is demonstrated that soon before her death she was subjected to cruelty or harassment for dowry, Section 118 of the BSA mandates that the court shall presume that such person caused the dowry death. The burden shifts entirely to the defence to rebut this presumption.

3. Presumption as to Absence of Consent in Certain Rape Trials (Section 120)

In prosecutions for sexual offences under specified clauses of Section 64(2) of the BNS, where sexual intercourse is proved and the victim states in her testimony that she did not consent, Section 120 of the BSA mandates a statutory presumption of lack of consent, requiring the defence to establish otherwise.

Standards of Proof: Civil vs. Criminal Cases

The BSA applies uniformly across civil and criminal matters, but the standard required to discharge the burden differs significantly:

Feature	Criminal Trials	Civil / Commercial Proceedings
Standard	Beyond Reasonable Doubt	Preponderance of Probabilities
Primary Burden	Prosecution (remains constant)	Plaintiff (shifts as defences are raised)
Defence Standard	Preponderance of probabilities (even when proving exceptions)	Balance of probabilities
Effect of Ambiguity	Benefit of the doubt goes to the accused	Court weighs comparative strength of claims

Practical Litigation Strategies for Maharashtra Courts

Litigants appearing before the City Civil and Sessions Court in Greater Mumbai, or District Courts in Thane and nearby jurisdictions, must adhere to strategic steps when addressing the burden of proof under the new regime:

Scrutinise Foundational Pleadings: Ensure every assertion in your plaint, written statement, or discharge application clearly aligns with evidence you can legally produce. Do not assume the court will draw inferences without foundational facts.
Identify Statutory Shifts Early: If your adversary relies on a statutory presumption (e.g., Section 118 for dowry allegations or negotiable instruments disputes), formulate your cross-examination to dismantle the foundational facts before the presumption is triggered.
Handle Electronic Records Properly: With the BSA placing renewed emphasis on electronic evidence, ensure that certificates establishing the chain of custody and source integrity are secured at the earliest stage.

Frequently Asked Questions (FAQs)

1. Has the Bharatiya Sakshya Adhiniyam changed the standard of proof in criminal trials?

No. The substantive standard remains "proof beyond reasonable doubt" for the prosecution, and a "preponderance of probabilities" when an accused seeks to establish an exception or statutory defence.

2. Can Section 109 of the BSA relieve the prosecution of proving its case?

No. Higher courts have consistently held that the provision concerning facts "especially within knowledge" cannot be used to cure deficiencies in the prosecution’s case. The prosecution must first establish a complete chain of prima facie circumstances before any explanatory burden shifts to the accused.

3. What is the difference between "may presume" and "shall presume" under the BSA?

When the BSA specifies that the court may presume a fact, the court has discretion to regard the fact as proved unless disproved, or it may call for independent proof. When the statute states the court shall presume, the court is bound to regard the fact as proved unless and until it is disproved by the opposing side.

4. Does the burden of proof ever shift to the defendant in a civil lawsuit?

Yes. The initial burden lies with the plaintiff to prove their claims. However, if the defendant raises an affirmative defence—such as fraud, limitation, or discharge of a debt—the evidentiary burden shifts to the defendant to substantiate those specific assertions.

Schedule a Consultation with APS Law

Navigating trial procedure, statutory presumptions, and rules of evidence requires disciplined litigation strategy. APS Law represents clients across Mumbai, Thane, and Mira Road in complex criminal trials, bail matters, commercial disputes, and property litigation under the updated framework of the BNS, BNSS, and BSA, 2023.

If you require assistance assessing the evidentiary strengths of your case or preparing for court proceedings, contact our team to schedule an in-depth legal consultation.