The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872, aims to modernise evidentiary rules in light of technological advancement, evolving jurisprudence, and societal expectations. One of the most foundational concepts retained and refined under the new Adhiniyam is that of the burden of proof.
Burden of proof determines who must prove a fact or set of facts in a judicial proceeding. This doctrine has profound implications in both civil and criminal trials, as it impacts the outcome of cases by delineating responsibilities between the prosecution and defence or the plaintiff and defendant.
This article delves into the rules governing the burden of proof under the Bharatiya Sakshya Adhiniyam, 2023, including statutory provisions, key judicial interpretations, and relevant illustrations.
Meaning of Burden of Proof
The term “burden of proof” refers to the legal obligation of a party to establish the truth of the facts asserted. Under BSA, as in its predecessor, it consists of two components:
Legal Burden (Persuasive Burden): The duty to prove a case to the satisfaction of the court.
Evidentiary Burden: The duty to produce enough evidence to make an issue a triable one.
Failure to discharge either can result in adverse findings against the party bearing that burden.
Statutory Framework under the Bharatiya Sakshya Adhiniyam, 2023
The rules related to the burden of proof are dealt with primarily under Chapter VII (Sections 104 to 114) of the Bharatiya Sakshya Adhiniyam, 2023. These provisions, largely similar to the Indian Evidence Act with minor structural and language updates, outline general and specific rules about who must prove what.
Burden of Proof (Section 104)
“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 section encapsulates the golden rule: he who asserts must prove. It places the burden on the party making a claim or allegation.
Illustration: (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.
On Whom Burden of Proof Lies (Section 105)
According to Section 105 of the Bharatiya Sakshya Adhiniyam, 2023, the burden of proof in any suit or proceeding lies on the party who would fail if no evidence were presented by either side.
This provision ensures that the person asserting a fact or seeking relief must establish their claim with credible evidence; otherwise, the court is bound to decide against them.
Burden of Proof Regarding Particular Facts (Section 106)
According to Section 106 of the Bharatiya Sakshya Adhiniyam, 2023, the responsibility to prove any specific fact lies with the individual who wants the Court to accept the truth of that fact. However, if any law expressly places the burden of proving that fact on a particular person, then the statutory provision will override the general rule.
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.
Burden of Proving Fact to be Proved to Make Evidence Admissible (Section 107)
According to Section 107 of the Bharatiya Sakshya Adhiniyam, 2023, when a party wishes to present evidence of a particular fact, and the admissibility of that evidence depends on the prior existence of another fact, the burden lies on that party to first establish the foundational fact. In other words, a person cannot introduce secondary or derivative evidence unless they first prove the precondition necessary to make that evidence relevant or admissible.
This section is particularly significant in the context of exceptions to general rules of admissibility, such as dying declarations or the use of secondary evidence when the primary document is lost or destroyed.
Illustration: A wishes to prove a dying declaration by B. A must prove B’s death.
Burden of Proving that Case of Accused comes within Exceptions (Section 108)
Section 108 addresses a critical principle in criminal jurisprudence: while the prosecution is always required to prove the accused’s guilt beyond a reasonable doubt, the accused has the burden of proving the applicability of any defence or exception.
If an accused person claims that their case falls under any of the General Exceptions (such as insanity, duress, accident, etc.) in the Bharatiya Nyaya Sanhita, 2023, or any special exception or proviso contained elsewhere in the law defining the offence, it is upon the accused to establish the existence of those exceptional circumstances.
Importantly, this burden is not as heavy as that placed on the prosecution—it is satisfied if the accused proves the exception on a preponderance of probabilities.
Moreover, the Court is required to presume the non-existence of such exceptions, unless the accused discharges their burden.
Illustration: A, accused of murder, alleges that, because of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
Special Rules Relating to Burden of Proof
Burden of Proving Facts, Especially within Knowledge (Section 109)
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
This provision is rooted in pragmatism—it would be unreasonable to expect a party to prove facts uniquely within the other party’s knowledge.
Illustration: If a person is found travelling without a ticket, it is for him to prove that he had one.
Burden of Proving Death of a Person Known to Have Been Alive within 30 Years (Section 110)
This section creates a presumption of life and shifts the burden on the party asserting death.
Illustration: If a person was known to be alive five years ago, the burden is on the party asserting that he is now dead.
Burden of Proving that a Person is Alive Who Has Not Been Heard of for Seven Years (Section 111)
This provision reverses the above—if a person has not been heard of for seven years, the burden is on the party claiming they are still alive.
Burden of Proof in Established Legal Relationships (Section 112)
Under Section 112 of the Bharatiya Sakshya Adhiniyam, 2023, when individuals have consistently conducted themselves as partners, landlord and tenant, or principal and agent, the law presumes the existence of such a relationship.
If anyone claims that the relationship does not exist or has been terminated, the burden of proof lies on that person. This provision ensures legal certainty and avoids unnecessary litigation over status by maintaining presumptions based on outward conduct.
Burden of Proof Regarding Ownership from Possession (Section 113)
Section 113 establishes a fundamental evidentiary presumption: possession implies ownership. When a person is found in possession of a property or object, the law presumes that they are the rightful owner.
If another party disputes this, they bear the burden to prove that the possessor is not the actual owner. This protects individuals who hold property from baseless challenges and provides a practical method for resolving disputes over title or control.
Burden of Proving Good Faith in Transactions Involving Fiduciary Relationships (Section 114)
Section 114 addresses situations involving trust-based relationships where one party holds a position of active confidence or influence over another, such as guardians, trustees, lawyers, or financial advisors.
In such cases, if a transaction appears to benefit the dominant party, it is that party’s responsibility to prove that the transaction was entered into in good faith, free from coercion, undue influence, or exploitation.
This rule provides safeguards for the vulnerable or subordinate party, ensuring that trust is not misused and fairness is upheld in dealings rooted in fiduciary trust.
Important Case Laws
[1] State of Rajasthan v. Kashi Ram (2006)
In this case, the Supreme Court emphasised the application of Section 106 of the Indian Evidence Act (now Section 109 of BSA), which places the burden of proof on the accused to explain facts especially within his knowledge. Since Kashi Ram was last seen with his wife and daughters, who were later found murdered, and he absconded without offering any explanation, the Court held that his failure to account for their deaths or his whereabouts created a strong adverse inference.
This failure, coupled with the circumstantial evidence, formed a complete chain pointing to his guilt, reinforcing that while the prosecution bears the initial burden, an accused cannot remain silent when key facts are within his exclusive knowledge.
[2] Gurcharan Singh & Anr. v. State of Punjab (1956)
In this case, the Supreme Court reaffirmed that in a criminal trial, the burden of proof lies on the prosecution to establish the guilt of the accused beyond a reasonable doubt, irrespective of the defence taken.
Although Jagir Singh pleaded alibi, the Court held that the burden to prove such a specific defence rests on the accused. Since no credible evidence was produced to substantiate the alibi, and the prosecution’s eyewitnesses were found reliable despite being related to the deceased, the conviction was upheld. The Court emphasised that the failure of the defence does not relieve the prosecution of its primary burden.
[3] Kali Ram v. State of Himachal Pradesh (1973)
In this landmark judgment, the Supreme Court emphasised the presumption of innocence and the prosecution’s burden to prove guilt beyond a reasonable doubt. The Court overturned the conviction and death sentence of Kali Ram, accused of murdering two individuals, on the ground that the evidence—consisting of delayed witness statements, a dubious confession letter, and an inadmissible extra-judicial confession—was unreliable and insufficient. J
Justice Hans Raj Khanna underscored that wrongful conviction is graver than acquittal of the guilty and reaffirmed that the benefit of doubt must always go to the accused.
Conclusion
The rules relating to the burden of proof under the Bharatiya Sakshya Adhiniyam, 2023 are designed to promote fairness, efficiency, and certainty in the trial process. These provisions ensure that legal disputes are resolved based on a well-established evidentiary structure and that parties are held accountable for substantiating their claims or defences.
By aligning with constitutional principles, judicial precedents, the BSA reinforces public trust in the Indian legal system. In a country as diverse and populous as India, such clarity and codification are crucial for protecting rights, minimising delay, and delivering justice.
References
[1] Bharatiya Sakshya Adhiniyam, 2023
[2] State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254]
[3] Gurcharan Singh & Anr. v. State of Punjab, AIR 1956 SC 460
[4] Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773