Section 106 Evidence Act vs Section 109 BSA — Burden of Proving Fact Especially Within Knowledge

In India, Section 109 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 106 of the Indian Evidence Act, 1872 (IEA) on 1 July 2024. The text is unchanged: when a fact is especially within a person's knowledge, the burden of proving it is upon that person. Only the number changed.

At a glance

What changed

• Identical — Section 109 main text: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." The words are the same in Section 106 IEA.
• Identical — Illustration (a): a person who does an act with an intention other than that which the character and circumstances of the act suggest bears the burden of proving that intention.
• Identical — Illustration (b): "A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
• Renumbered — the surrounding scheme: the general burden-of-proof sections moved from IEA 101-104 to BSA 104-107. In outline, Section 104 BSA (IEA 101) joins the IEA's two sentences into one, Section 106 BSA (IEA 103) prints its two Illustrations as a single Illustration, and Section 108 BSA (IEA 105) now refers to the General Exceptions in the Bharatiya Nyaya Sanhita, 2023 instead of the Indian Penal Code, 1860. Those changes are covered on the burden of proof page; none of them alters the words of Section 109.

Statutory text (relevant extract)

Extract, Section 106 IEA (repealed from 1 July 2024):

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Extract, Section 109 BSA, with Illustrations:

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

How it works — where Section 109 fits

Section 109 is read with the general rules around it.

1. The general rule (Section 104 BSA, IEA 101) — whoever wants judgment on a legal right or liability that depends on facts he asserts must prove those facts. Illustration (a): A, who wants B punished for a crime, must prove that B committed it.
2. Who fails if nothing is proved (Section 105 BSA, IEA 102) — the burden lies on the person who would fail if no evidence were given on either side.
3. Particular facts (Section 106 BSA, IEA 103) — the burden of proving a particular fact lies on the person who wants the court to believe it, unless a law places it elsewhere. The Illustration's second limb: B, who says he was elsewhere, must prove it.
4. Exceptions pleaded by the accused (Section 108 BSA, IEA 105) — the accused must prove circumstances bringing the case within a General Exception of the BNS, and the court presumes their absence.
5. Facts especially within knowledge (Section 109 BSA, IEA 106) — the fact must be one "especially" within the knowledge of the person. The Supreme Court reads this as an exception to the general rule, not a replacement for it (see Shambu Nath Mehra and Anees below).

Worked examples from the Act

• Illustration (b) — the ticket. Whether a passenger bought a ticket is something he can show easily and the railway often cannot. In Shambu Nath Mehra the Supreme Court treated the Illustration as referring to railway-ticket offences, and refused to extend it to a claim for fares where the State's own registers could show whether payment was made.
• Illustration (a) — intention. If the character and circumstances of an act suggest one intention, a person who says he had a different one must prove it. Anees (para 47) explains that intention is "seldom a matter which can be conclusively established" and is known only to the person who formed it.

What the section does not do (per the judgments below)

• It does not relieve the prosecution of proving the offence (Anees, paras 43-44).
• It does not apply where the fact could be known to others present, or to the prosecution with due diligence (Anees, para 47; Shambu Nath Mehra).
• It operates only after foundational facts are proved (Anees, para 50; Rahil, para 42).

What this means in practice

For the prosecution and the investigating officer

• Establish the foundational facts first — the accused's presence at the scene, the timing, the setting — with independent evidence. The courts relied on facts such as the incident occurring inside the accused's own house at a stated hour (Anees, para 56(a)) and the accused's conduct after the death (Balveer Singh, para 88).
• Put every incriminating circumstance to the accused when he is examined under Section 351 BNSS (Section 313 CrPC). Section 351(4) BNSS provides that his answers may be taken into consideration in the inquiry or trial.
• Do not rely on Section 109 for facts the prosecution can find in its own records or from other witnesses; Shambu Nath Mehra holds that such facts are not "especially" within the accused's knowledge.

For the accused and defence advocate

• Test the foundation: if presence, time or place is not proved by independent evidence, argue that the burden under Section 109 never arose (Rahil, paras 43-44).
• If the accused has an account of events, it need only be one that "may be reasonably true in the proved circumstances" (Anees, para 45); it does not have to be proved beyond reasonable doubt.
• Silence and false explanations carry risk. Anees (para 45) and Trimukh (para 17) treat an absent or false explanation as a circumstance that may count against the accused.

For civil litigants

• On a reading of the text, Section 109 is not confined to criminal cases: it speaks of "any person", so facts such as a party's own receipts, instructions or private dealings may fall on that party to prove.

Judgments that still matter

Shambu Nath Mehra v. The State of Ajmer, [1956] 1 S.C.R. 199 — 12 March 1956. The judgment of Vivian Bose and Chandrasekhara Aiyar JJ., delivered by Bose J., held that Section 106 is an exception to Section 101 and is "certainly not intended to relieve" the prosecution of its duty to prove the case. The word "especially" means facts "pre-eminently or exceptionally within his knowledge"; if the prosecution could learn the fact with due diligence, it is not especially within the accused's knowledge. Illustration (b) was read as referring to railway-ticket offences. The Court restored an acquittal of a clerk accused of claiming second-class fares he had not paid, because the railway's own records could have shown the payments. The report shows no paragraph numbers. Section 109 BSA repeats the words construed.

Trimukh Maroti Kirkan v. State of Maharashtra, [2006] Supp. 7 S.C.R. 156 (2006 INSC 691) — 11 October 2006. G.P. Mathur and R.V. Raveendran JJ. held that where murder is committed in secrecy inside a house, the initial burden is on the prosecution but is "of a comparatively lighter character", and that under Section 106 the inmates must give a cogent explanation: they "cannot get away by simply keeping quiet and offering no explanation". Where a husband gives no explanation of how his wife received her injuries, or a false one, that is a strong circumstance against him (para 17). The Court upheld the High Court's conviction under Section 302 IPC (para 19).

Anees v. The State Govt. of NCT, [2024] 6 S.C.R. 164 (2024 INSC 368) — 3 May 2024. A three-Judge Bench (J.B. Pardiwala J. writing, with D.Y. Chandrachud CJI and Manoj Misra J.) restated the law. Section 106 is an exception to Section 101 (para 36). It "cannot be invoked to make up the inability of the prosecution" to prove guilt, and until a prima facie case is established the onus does not shift (para 44). A reasonably true explanation earns the benefit of doubt; none, or a false one, may turn the scale (para 45). The section does not apply where the fact could be known to others present (para 47). It applies once the prosecution proves facts from which a reasonable inference of guilt can be drawn (para 50). The Court found those facts proved (para 56) and dismissed the appeal.

The State of Madhya Pradesh v. Balveer Singh, [2025] 2 S.C.R. 836 (2025 INSC 261) — 24 February 2025. J.B. Pardiwala and Manoj Misra JJ. listed the foundational facts that justified invoking Section 106 — the death inside the house, the clandestine cremation without informing the wife's family, the accused's flight, and his complete silence (para 88) — and held that they made out "more than a prima facie case" shifting the burden to the husband to explain (para 89). The acquittal was set aside and the conviction restored (para 91). The case applies Section 106 IEA; its reasoning is on words Section 109 BSA repeats.

Rahil & Anr. v. State (Govt. of N.C.T. of Delhi), [2025] 6 S.C.R. 607 (2025 INSC 858) — 25 June 2025. Sandeep Mehta and Joymalya Bagchi JJ. held that the burden of proof always rests on the prosecution, and that only when it discharges the initial onus does the onus shift and an adverse inference become available (para 42). Because the appellants' presence in the house was not reliably proved, the High Court "illegally drew adverse inference" under Section 106 (para 44), and the conviction was set aside (para 45).

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before 1 July 2024 is dealt with under the Indian Evidence Act, 1872 "as if this Adhiniyam had not come into force". On a reading of that provision, a trial pending on that date applies Section 106 IEA and a proceeding begun afterwards applies Section 109 BSA. Because the words are identical, the judgments above are relevant under either number on a reading of the text. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BSA equivalent of Section 106 of the Evidence Act? Section 109 of the Bharatiya Sakshya Adhiniyam, 2023 replaces Section 106 of the Indian Evidence Act, 1872. The text is identical: when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Both Illustrations, on intention and on travelling without a railway ticket, are carried over unchanged.

Does Section 109 BSA shift the burden of proof to the accused in a criminal case? Not the overall burden. Section 104 BSA (Section 101 IEA) and its Illustration (a) keep the burden of proving the crime on the prosecution. The Supreme Court has held that Section 106 IEA, now Section 109 BSA, does not modify that rule and cannot be used to make up for the prosecution's inability to prove guilt (Anees v. State, 2024 INSC 368, paras 43-44).

What does 'especially within the knowledge' mean? In Shambu Nath Mehra v. State of Ajmer, [1956] 1 S.C.R. 199, the Supreme Court held that the word means facts that are pre-eminently or exceptionally within the person's knowledge. If the prosecution could learn the fact with due diligence, as from its own records, the fact is not especially within the accused's knowledge and the section does not apply.

When can a court use Section 109 BSA against an accused? Only after the prosecution has proved foundational facts from which a reasonable inference of guilt can be drawn (Anees, para 50). If the accused then gives no explanation, or a false one, of facts especially within his knowledge, that failure may count against him. In Rahil v. State (2025 INSC 858, paras 42-44), an adverse inference was set aside because the accused's presence in the house was not proved.

What if the accused gives an explanation but cannot prove it? The Supreme Court said in Anees (2024 INSC 368, para 45) that if the accused offers an explanation which may be reasonably true in the proved circumstances, he gets the benefit of reasonable doubt even if he cannot prove it beyond reasonable doubt. No explanation, or a false or unacceptable one, may turn the scale against him.

Does Section 109 BSA apply to a death inside the family home? The Supreme Court has applied its predecessor, Section 106 IEA, to such cases. In Trimukh Maroti Kirkan v. State of Maharashtra, [2006] Supp. 7 S.C.R. 156, the Court held that where murder is committed in secrecy inside a house the prosecution still bears the initial burden, but the inmates must give a cogent explanation; it added that a husband's failure to explain his wife's injuries, or a false explanation, is a strong circumstance against him (para 17).

Which Act applies — Section 106 IEA or Section 109 BSA? Section 170(2) BSA keeps the Indian Evidence Act, 1872 for any application, trial, inquiry, investigation, proceeding or appeal pending immediately before 1 July 2024. On a reading of that provision, such a pending case is decided under Section 106 IEA, and a proceeding begun on or after that date under Section 109 BSA. The words are identical either way.

Related

• Burden of proof: IEA 101-104 vs BSA 104-107
• Court presumptions: IEA 114 vs BSA 119
• Presumptions in dowry cases: IEA 113A-113B vs BSA 117-118
• Examination of the accused: CrPC 313 vs BNSS 351
• Offence before 1 July 2024 — which law applies
• Evidence Act to BSA master table

Sources

• Bharatiya Sakshya Adhiniyam, 2023 (Gazette text): Sections 104 to 110, 119 and 170; commencement footnote to Section 1 (S.O. 849(E)).
• Indian Evidence Act, 1872 (India Code text): Sections 101 to 107.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Section 351.
• Judgments read in full text: Shambu Nath Mehra v. State of Ajmer (1956_1_199_205_EN.md); Trimukh Maroti Kirkan v. State of Maharashtra (S_2006_7_156_173_EN.md); Anees v. State Govt. of NCT (2024_6_164_213_EN.md); State of Madhya Pradesh v. Balveer Singh (2025_2_836_917_EN.md); Rahil v. State (Govt. of NCT of Delhi) (2025_6_607_624_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.