Quick Answer
Sections 101-104 of the Indian Evidence Act, 1872, which establish the foundational rules for allocation of the burden of proof, have been replaced by Sections 104-108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The core principles are substantively unchanged: the party who asserts must prove; the burden lies on the party who would fail if no evidence were given; and the accused bears the burden of proving that their case falls within a statutory exception. The only material change is in Section 108 BSA (replacing old Section 105), which now references the General Exceptions under the Bharatiya Nyaya Sanhita, 2023 instead of the Indian Penal Code, 1860. The "preponderance of probability" and "beyond reasonable doubt" standards, developed through case law, remain fully operative.
What Changed
| Feature | Sections 101-104, Evidence Act | Sections 104-108, BSA |
|---|---|---|
| General burden | S.101 — who asserts must prove | S.104 — identical wording |
| Burden in a suit | S.102 — lies on party who would fail if no evidence given | S.105 — identical wording |
| Burden as to particular fact | S.103 — lies on person who wishes court to believe in its existence | S.106 — identical wording |
| Burden for admissibility | S.104 — person who wishes to give evidence must prove foundational facts | S.107 — identical wording |
| Accused's burden for exceptions | S.105 — references IPC general exceptions and special exceptions | S.108 — references BNS general exceptions and special exceptions |
| Standard of proof | Not defined in statute — case law | Same — unchanged |
| Section numbering | 101-105 (5 sections) | 104-108 (5 sections, same count) |
Full Statutory Text
Section 101, Evidence Act — Burden of Proof
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.
Section 104, BSA — Burden of Proof
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.
Section 102, Evidence Act — On Whom Burden of Proof Lies
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.
Section 105, BSA — On Whom Burden of Proof Lies
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.
Section 103, Evidence Act — Burden of Proof as to Particular Fact
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.
Section 106, BSA — Burden of Proof as to Particular Fact
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.
Section 104, Evidence Act — Burden of Proving Fact to Make Evidence Admissible
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Section 107, BSA — Burden of Proving Fact to Make Evidence Admissible
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
Section 105, Evidence Act — Burden of Proving Exception
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 Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Section 108, BSA — Burden of Proving Exception
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.
Key Differences
Cross-reference updated from IPC to BNS. Section 108 BSA now references the General Exceptions under the Bharatiya Nyaya Sanhita, 2023 (Chapter III, Sections 14-33 BNS, replacing Chapter IV, Sections 76-106 IPC). The substantive rule is identical: the accused bears the burden of proving that their case falls within an exception, and the court presumes the absence of excepting circumstances.
Section numbering shift. The old Sections 101-105 (five provisions) are renumbered as Sections 104-108 (five provisions). This is a mechanical renumbering resulting from the BSA's overall restructuring. The sequence and logic are preserved.
Verbatim reproduction of all general burden rules. Sections 104-107 BSA (replacing Sections 101-104 Evidence Act) are word-for-word identical. The "who asserts must prove" principle, the "would fail if no evidence" test, the "particular fact" allocation, and the "foundational fact for admissibility" rule are all unchanged.
No codification of standard of proof. Neither the Evidence Act nor the BSA defines the standard of proof — "beyond reasonable doubt" for criminal cases and "preponderance of probability" for civil cases. These remain judge-made standards. The BSA missed an opportunity to codify what every practitioner and judge applies daily.
Burden under BNS exceptions mirrors IPC exceptions. The General Exceptions under the BNS (Chapter III) correspond substantively to those under the IPC (Chapter IV). Key defences — unsoundness of mind (Section 22 BNS / Section 84 IPC), private defence (Sections 34-44 BNS / Sections 96-106 IPC), accident (Section 23 BNS / Section 80 IPC), necessity (Section 16 BNS / Section 81 IPC) — all require the accused to discharge the evidential burden under Section 108 BSA.
What This Means for Practitioners
The burden of proof provisions are among the most frequently invoked in Indian litigation, and the BSA's verbatim reproduction ensures complete continuity. Practitioners need only update their section citations:
- Section 101 Evidence Act becomes Section 104 BSA
- Section 102 Evidence Act becomes Section 105 BSA
- Section 103 Evidence Act becomes Section 106 BSA
- Section 104 Evidence Act becomes Section 107 BSA
- Section 105 Evidence Act becomes Section 108 BSA
For criminal defence practitioners, the standard under Section 108 BSA remains a "preponderance of probability" — not proof beyond reasonable doubt. The accused need only make the existence of the excepting circumstance probable, not certain. This is the settled position from K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605) and remains unchanged.
For civil practitioners, the burden allocation under Sections 104-107 BSA continues to be governed by the same shifting burden framework: the initial burden lies on the plaintiff/petitioner, but the evidential burden shifts as facts are established and presumptions arise. The interplay between the general burden (Section 104 BSA) and specific statutory presumptions (Sections 115-120 BSA) requires the same careful analysis as under the old Act.
Does Old Case Law Still Apply?
Yes, entirely. Given the verbatim reproduction of the burden of proof provisions, every existing decision on these sections carries over with full authority:
Woolmington v. DPP [1935] AC 462 — Though an English case, its "golden thread" principle (the prosecution must prove the case beyond reasonable doubt, and the burden never shifts to the accused except for statutory exceptions) has been repeatedly affirmed by Indian courts and remains the foundational principle.
K.M. Nanavati v. State of Maharashtra (AIR 1962 SC 605) — The Supreme Court held that the accused who raises a defence under the General Exceptions must prove it on a "preponderance of probability," not beyond reasonable doubt. This principle applies identically under Section 108 BSA.
Rangammal v. Kuppuswami (2011) 12 SCC 220 — In civil matters, the initial burden lies on the plaintiff, but once a prima facie case is established, the evidential burden shifts to the defendant. This shifting burden analysis under Sections 101-102 Evidence Act applies without modification to Sections 104-105 BSA.
Judicial interpretation under BSA Section 104-108 (post-July 2024)
The following cases from the Veritect Legal Intelligence database show how courts are applying burden of proof principles in practice:
M/s S.S. Production v. Pavithran Prasanth (1 October 2024)
Court: Supreme Court of India | Case: SLP(Crl)/13981-13985/2024 | Result: Statutory presumption upheld
The Supreme Court examined the interplay between the general burden of proof under Section 104 BSA (formerly Section 101 Evidence Act) and statutory presumptions under special legislation. In the context of the Negotiable Instruments Act, 1881, the Court reaffirmed that when a statute creates a presumption in favour of the holder of a negotiated instrument, the burden shifts to the accused to rebut the presumption on a preponderance of probability — not proof beyond reasonable doubt. The Court held that the accused's burden under statutory presumptions follows the same "preponderance of probability" standard established for general exceptions under Section 108 BSA (formerly Section 105 Evidence Act), confirming that the BSA's burden of proof framework operates consistently across both the general criminal code and special legislation.
Veritect reference: SLP_Crl_13981-13985_2024_Judgment
Emerging patterns
- Statutory presumptions and BSA burden rules operate in tandem. The 2024 SC decision confirms that Section 104-108 BSA works consistently with presumption-creating provisions in special legislation (NI Act, NDPS Act, Prevention of Corruption Act).
- "Preponderance of probability" standard uniformly applied. Whether the accused invokes a general exception under Section 108 BSA or rebuts a statutory presumption under a special Act, the standard remains preponderance of probability.
- No substantive departure from Evidence Act position. Early post-BSA jurisprudence confirms that the verbatim reproduction of burden of proof provisions has resulted in complete continuity of legal principles.
Frequently Asked Questions
Has the standard of proof changed under the BSA? No. The BSA does not define the standard of proof. The criminal standard (beyond reasonable doubt) and the civil standard (preponderance of probability) remain as developed through case law. The accused's burden under Section 108 BSA is the lighter "preponderance of probability" standard.
Does Section 108 BSA cover all defences, or only BNS General Exceptions? Section 108 covers (a) General Exceptions under the BNS (Chapter III), (b) special exceptions or provisos within other parts of the BNS, and (c) any law defining the offence that contains exceptions. This means the accused bears the burden for defences under the BNS, NDPS Act, Prevention of Corruption Act, and any other penal statute.
Can the burden of proof shift during trial? Yes. While the "legal burden" (who must prove the case overall) typically does not shift, the "evidential burden" (who must produce evidence on a particular issue at a particular stage) shifts constantly during trial. Presumptions under Sections 115-120 BSA can place the evidential burden on the party against whom the presumption operates.
Why did the BSA not codify the "beyond reasonable doubt" standard? The legislature chose to maintain the flexible, judge-made standard rather than freeze it in statute. This allows courts to continue developing the concept contextually — for example, the degree of certainty required in capital cases versus less serious offences — without rigid legislative constraints.