Section 101-105 Evidence Act vs Section 104-108 BSA — Burden of Proof

In India, the burden-of-proof rules in Sections 101–105 of the Indian Evidence Act, 1872 (IEA) now sit in Sections 104–108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The rules are unchanged in substance: whoever asserts a fact must prove it, and an accused pleading a General Exception must prove it. Section 108 now cites the Bharatiya Nyaya Sanhita instead of the IPC.

At a glance

What changed

• Minor edit — IEA s.101 → BSA s.104. IEA: "…facts which he asserts, must prove that those facts exist. When a person is bound to prove…". BSA: "…facts which he asserts must prove that those facts exist, and when a person is bound to prove…". The comma after "asserts" goes and the two sentences become one. Illustrations (a) (criminal prosecution) and (b) (land in B's possession) are word for word the same.
• Identical text, minor edit to illustrations — IEA s.102 → BSA s.105. The section is identical. In both illustrations "Therefore the burden of proof is on A" (and "on B") becomes "Therefore, the burden of proof is on A". The IEA printed each sentence of the illustrations on a new line; the BSA runs them together.
• Identical text, minor edit to illustrations — IEA s.103 → BSA s.106. The section is identical. The IEA prints two illustrations, (a) (A must prove B's admission of theft) and (b) (B must prove his alibi); a footnote in the official IEA text records that the 1872 Gazette version had no illustration (b). The BSA prints one combined "Illustration.".
• Identical — IEA s.104 → BSA s.107. Section and both illustrations (dying declaration; lost document) carry the same words.
• Minor edit — IEA s.105 → BSA s.108. "the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code" becomes "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". The words "or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances" are unchanged. Illustrations (a) and (b) are unchanged. Illustration (c) now reads "Section 117 of the Bharatiya Nyaya Sanhita, 2023 … except in the case provided for by sub-section (2) of section 122", replacing IPC ss.325 and 335.
• Minor edit — placement. Chapter VII, "Of the Burden of Proof", now sits in Part IV of the BSA instead of Part III of the IEA; the section headings keep their wording.
• Identical / minor edit — the definitions. "Proved" is word for word the same (IEA s.3 → BSA s.2(1)(j)). "Disproved" keeps its test but is recast ("'disproved' in relation to a fact, means when…", s.2(1)(c)); "said not to be proved" becomes "said to be not proved" (s.2(1)(i)); "shall presume" and "may presume" move from IEA s.4 to BSA s.2(1)(l) and (h).

Statutory text (relevant extract)

Extract — Section 101, IEA:

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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Extract — Section 104, BSA:

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, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Extract — Section 108, BSA (IEA s.105 is the same, with "Indian Penal Code (45 of 1860)" and "same Code"):

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.

Extract — Section 2(1)(j), BSA (IEA s.3 "Proved" is the same):

"proved".—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;

How it works — the steps

1. Identify what each party asserts (s.104). The burden attaches to facts a party asserts in order to obtain judgment. Illustration (a): A wants B punished for a crime A says B committed, so A must prove the crime. Illustration (b): A claims land in B's possession on facts B denies, so A must prove those facts.
2. Ask who would lose on no evidence (s.105). In illustration (a), A claims land in B's possession under the will of B's father; with no evidence B keeps possession, so the burden is on A. In illustration (b), a bond's execution is admitted but B pleads fraud; with no evidence A would succeed, so the burden of proving fraud is on B.
3. Allocate each particular fact (s.106). The person who wants the court to believe a particular fact must prove it, "unless it is provided by any law that the proof of that fact shall lie on any particular person". In the illustration, A (prosecuting B for theft) must prove that B admitted the theft to C, and B must prove that he was elsewhere at the time. The "unless" clause is the gateway for the rules that follow, such as s.109 (facts especially within a person's knowledge).
4. Prove the preliminary facts that make evidence admissible (s.107). The person who wants to give the evidence proves the foundation. To prove a dying declaration by B, A must prove B's death. To prove a lost document's contents by secondary evidence, A must prove it has been lost.
5. The accused's exception (s.108). If the accused relies on a General Exception (BNS Chapter III, ss.14–44), on a special exception or proviso elsewhere in the BNS, or on one in the law defining the offence, the burden of proving those circumstances is his. The court "shall presume the absence of such circumstances". The illustrations give the three kinds:
   • (a) unsoundness of mind: a General Exception (BNS s.22, formerly IPC s.84);
   • (b) grave and sudden provocation: a special exception elsewhere in the BNS (Exception 1 to s.101, formerly Exception 1 to IPC s.300);
   • (c) grievous hurt on grave and sudden provocation under BNS s.122(2), which carves an exception out of the offence in s.117.
6. Measure the result against "proved" (s.2(1)(j)). A burden is discharged when the court believes the fact exists or thinks it so probable that a prudent man would act on it. Under s.2(1)(l), the s.108 presumption holds "unless and until it is disproved".

What this means in practice

• For a plaintiff or petitioner. Plead the facts you rely on and be ready to prove them: s.104 attaches the burden to what you assert, and s.105 asks who fails if nothing is proved. If the other side holds the relevant document, the answer is to seek its production; on a reading of s.106, the burden itself moves only where another law so provides.
• For a defendant pleading fraud. Where the foundational fact is admitted, as with the bond in s.105 illustration (b), the burden of proving the fraud is the defendant's.
• For the prosecution. Section 104 illustration (a) puts the burden of proving the crime on the prosecution, and s.107 requires the preliminary fact (death; loss of a document) to be proved before a dying declaration or secondary evidence goes in.
• For the accused and defence counsel. A plea of private defence (BNS ss.34–44), unsoundness of mind (BNS s.22), accident (BNS s.18) or a statutory proviso engages s.108. The circumstances can come from defence evidence (BNSS s.256(1) in a sessions trial) or from material already on record, including prosecution evidence and cross-examination (Vijayee Singh). Two outcomes are open: proof of the exception on the civil standard, or a reasonable doubt about an ingredient of the offence (see the judgments below).
• For advocates. Because the text is the same in substance, arguments and authorities carry over; the cross-references to update are in s.108, which now points to BNS sections.

Judgments that still matter

BSA ss.104–108 repeat the operative words of IEA ss.101–105, and "proved" is defined identically, so on a reading of the text judgments construing those words remain relevant. None of the judgments below construes the BSA itself.

Vijayee Singh v. State of Uttar Pradesh, [1990] 2 S.C.R. 573 (1990 INSC 145), decided 20 April 1990. K. Jayachandra Reddy J. delivered the judgment of a three-judge bench on how IEA s.105 operates when an accused pleads private defence. The Court said: "The maxim that the prosecution must prove its case beyond reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases." It read s.105's burden and rebuttable presumption together: "The initial obligatory presumption that the Court shall presume the absence of such circumstances gets lifted when a plea of exception is raised." If rebuttal material raises a reasonable doubt about an ingredient such as intention, the benefit of that doubt goes to the accused even under s.105 (report pp. 601–602; the reported text has no paragraph numbers). Why it matters now: BSA s.108 keeps the same two-part structure and the same "shall presume" wording.

Dahyabhai Chhaganbhai Thakker v. State of Gujarat, [1964] 7 S.C.R. 361, decided 19 March 1964. Subba Rao J. delivered the judgment of a three-judge bench on the plea of insanity under IPC s.84. The Court distinguished the prosecution's general burden, which never shifts, from the special burden s.105 places on the accused. Its three propositions: the prosecution must prove the offence, including mens rea, beyond reasonable doubt; the rebuttable presumption that the accused was not insane places on him a burden "no higher than that rests upon a party to civil proceedings"; and evidence falling short of establishing insanity may still raise a reasonable doubt about an ingredient, entitling him to acquittal. On the facts the plea failed and the appeal was dismissed. Why it matters now: BSA s.108 illustration (a) is the insanity case, and BNS s.22 repeats IPC s.84.

Rangammal v. Kuppuswami, [2011] 6 S.C.R. 835 (2011 INSC 399), decided 13 May 2011. Gyan Sudha Misra J. delivered the judgment for a two-judge bench in a partition suit. The plaintiff relied on a sale deed executed while the appellant was a minor, and the courts below had put the burden on her to disprove it. The Court held under IEA s.101 that the burden lies on the person who asserts, adding: "Until such burden is discharged, the other party is not required to be called upon to prove his case" (para 14). It also held that misplacing the burden of proof vitiates the judgment, even though burden may matter less once both sides have led evidence (para 20). The appeal was allowed. Why it matters now: BSA ss.104 and 105 repeat the provisions the Court applied.

Which law applies to your case

BSA s.170(2) provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force (1 July 2024) is dealt with under the IEA "as if this Adhiniyam had not come into force". Such a matter cites IEA ss.101–105; on a reading of s.170(2), a proceeding begun after that date cites BSA ss.104–108. BNSS s.531(2)(a) does the same for pending trials and investigations under the CrPC. Article 20(1) of the Constitution speaks of conviction for an offence and of a greater penalty; on a reading of it, a renumbering of evidence rules that are the same in substance does not engage it. For the full analysis see which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 101 of the Evidence Act? Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 101 of the Indian Evidence Act, 1872. The rule is the same: whoever wants a court to give judgment on a right or liability that depends on facts he asserts must prove those facts. The only change is drafting: the two sentences of Section 101 are joined into one by the words "and when".

Did the BSA change the standard of proof? No. Neither Act states "beyond reasonable doubt" or "preponderance of probability" in terms. Both define "proved" in the same words (IEA Section 3; BSA Section 2(1)(j)): the court believes the fact exists, or thinks it so probable that a prudent man ought to act on it. The criminal and civil standards remain those the courts have developed on that definition.

Who bears the burden of proof in a civil suit under the BSA? Section 105 BSA puts the burden on the person who would fail if no evidence at all were given on either side, and Section 104 requires a party to prove the facts he asserts. In Rangammal v. Kuppuswami (2011 INSC 399, para 14) the Supreme Court held that until that burden is discharged the other party need not be called on to prove his case. Para 20 of the same judgment holds that misplacing the burden vitiates the judgment.

What must an accused prove under Section 108 BSA? Section 108 BSA puts on the accused the burden of proving circumstances that bring the case within a General Exception of the Bharatiya Nyaya Sanhita (Chapter III, Sections 14-44), a special exception or proviso elsewhere in the BNS, or one in the law defining the offence. The court presumes those circumstances are absent until the accused displaces that presumption. The illustrations cover unsoundness of mind, grave and sudden provocation, and grievous hurt on provocation under BNS Section 122(2).

Must an accused prove insanity or private defence beyond reasonable doubt? No. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat (1964) the Supreme Court held, on IEA Section 105, that the accused's burden is no higher than that of a party to civil proceedings. In Vijayee Singh v. State of Uttar Pradesh (1990 INSC 145) it held that if the material on record raises a reasonable doubt about an ingredient of the offence, the accused gets the benefit of it. BSA Section 108 repeats Section 105.

What does Section 107 BSA require before a dying declaration can be proved? Section 107 BSA, which repeats IEA Section 104, puts the burden of proving a preliminary fact on the person who wants to give evidence that depends on it. Its illustration (a) says a person who wishes to prove a dying declaration by B must prove B's death. Illustration (b) requires proof that a document has been lost before its contents are proved by secondary evidence.

Which Act governs burden of proof in a case pending on 1 July 2024? Section 170(2) BSA provides that any trial, inquiry, investigation, proceeding or appeal pending immediately before the Adhiniyam came into force is dealt with under the Indian Evidence Act as if the BSA had not come into force. Such a case therefore cites IEA Sections 101-105. The rules are the same in substance, so the choice mainly affects which section numbers are cited.

Related

• Section 114 Evidence Act vs Section 119 BSA — court may presume existence of certain facts
• Sections 113A–113B Evidence Act vs Sections 117–118 BSA — presumptions in dowry cases
• Section 3 Evidence Act vs Section 2 BSA — definitions
• Evidence Act to BSA — full section mapping
• Offence before 1 July 2024 — which law applies
• Section 106 Evidence Act vs Section 109 BSA — Burden of Proving Fact Especially Within Knowledge
• Sections 96–106 IPC vs Sections 34–44 BNS — Right of Private Defence
• Sections 115–117 IEA vs Sections 121–123 BSA — Estoppel, Tenant Estoppel and Estoppel of Acceptor, Bailee or Licensee

Sources

Acts and sections read (BSA, BNS and BNSS from the Gazette; Indian Evidence Act and IPC from the official texts): BSA ss.2(1)(b), (c), (h), (i), (j), (l), 104–109, 170; IEA ss.3, 4, 101–105; BNS ss.14, 18, 22, 34, 44, 101 (Exception 1), 117, 122; IPC ss.76–106 (Chapter IV), 84; BNSS ss.256(1), 531(2)(a); Constitution, Art. 20(1).

Judgments read (full text, Veritect Supreme Court corpus): Vijayee Singh v. State of Uttar Pradesh (1990_2_573_608_EN.md); Dahyabhai Chhaganbhai Thakker v. State of Gujarat (1964_7_361_375_EN.md); Rangammal v. Kuppuswami (2011_6_835_863_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.