Burden of Proof in Criminal and Civil Cases under the Bharatiya Sakshya Adhiniyam, 2023

The same seventeen sections govern both sides of the docket, and they produce entirely different results. In a civil suit the court asks which version is more probable and decides accordingly. In a criminal trial it asks whether the prosecution has excluded reasonable doubt, and acquits if it has not — even where the accused's version is improbable. The provisions are identical; what differs is the standard applied to them, and that difference shapes everything about how the two kinds of case are conducted.

1. The Common Starting Point

Sections 104 and 105, BSA

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.

Section 105. 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.

The general rule applies to both — he who asserts must prove. In a civil suit it places the burden on the plaintiff to establish the facts constituting his cause of action. In a criminal trial it places the burden on the prosecution to establish every ingredient of the offence.

From that shared starting point the two diverge in four respects: the standard to be met, the source that fixes what must be proved, the treatment of defences, and what happens when the court remains uncertain.

2. The Comparison

	Criminal proceedings	Civil proceedings
Who bears the legal burden	The prosecution, on every ingredient of the offence	The plaintiff, on the facts constituting his cause of action
What fixes the issues	The charge, and the ingredients supplied by the substantive law	The pleadings, and the issues framed under Order XIV of the Code of Civil Procedure, 1908
Standard	Beyond reasonable doubt	Preponderance of probabilities
Effect of uncertainty	Acquittal — the benefit of doubt goes to the accused	The party bearing the burden loses on that issue
Accused or defendant's position	Need prove nothing, subject to Section 108 and the specific reversals	Must prove any affirmative plea he sets up
Standard on him where a burden is placed	Preponderance of probabilities	Preponderance of probabilities
Effect of failing to discharge it	The defence is not established — but the material may still raise a reasonable doubt	The plea fails
Presumption operating throughout	Innocence	None

3. The Criminal Side

3.1 The golden thread

📖 Woolmington v. Director of Public Prosecutions, [1935] AC 462 (HL)

Held: Throughout the web of the English criminal law one golden thread is always to be seen — that it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case, and the prisoner is entitled to an acquittal.

Ratio: The legal burden rests on the prosecution throughout, and a doubt raised by defence evidence operates in the accused's favour even where the defence itself is not established.

The Adhiniyam preserves the principle by its silence. There is no provision placing any general burden on an accused, and the reverse burdens it does create — Section 108 and the specific presumptions in Sections 115, 117, 118 and 120 — are the 'statutory exceptions' the golden thread contemplates.

3.2 The standard

📖 Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808

Held: It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent until proved guilty, and that the burden of proving the guilt of the accused is upon the prosecution. Another golden thread is that if two views are possible on the evidence, one pointing to the guilt of the accused and the other to his innocence, the view favourable to the accused should be adopted.

The Court observed that the higher the stakes, the greater the caution required, and that it is better that ten guilty persons should escape than that one innocent should suffer.

Ratio: Where two views are reasonably possible, the one favourable to the accused prevails.

The standard is not, however, a counsel of perfection, and the Supreme Court has been equally clear that doubt must be reasonable rather than fanciful.

📖 Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793

Held: The Court cautioned against the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence, and against the soft justice that results from a miscarriage of justice arising from an acquittal of the guilty. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense arising out of the evidence.

The Court observed that the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

Ratio: The benefit of doubt operates on reasonable doubt founded on the evidence, not on speculative possibility.

The two decisions are read together. Kali Ram states the protection; Shivaji Sahabrao Bobade states its limit. A doubt arising from the evidence is fatal to the prosecution; a doubt arising from imagination is not.

3.3 Defences

Section 108 places on an accused the burden of proving circumstances bringing his case within any General Exception in the Bharatiya Nyaya Sanhita, 2023, or within any special exception or proviso, and directs the court to presume the absence of such circumstances.

Two qualifications are settled and keep the section consistent with the golden thread. The accused discharges the burden on a preponderance of probabilities. And material which fails to establish a defence may nevertheless raise a reasonable doubt about the prosecution case — in which case he is acquitted despite having failed.

⚠ The two questions must be asked separately

A court dealing with a defence asks first whether the accused has established it on a preponderance of probabilities. If not, it must then ask, separately, whether the material he led raises a reasonable doubt about what the prosecution had to prove. Treating the failure of the defence as strengthening the prosecution case is the commonest error in criminal judgments, and it inverts the golden thread.

4. The Civil Side

4.1 The standard

The civil standard is the preponderance of probabilities — the court decides which version is more probable and gives judgment accordingly. It does not ask whether the successful party's case is free from doubt, and it is no answer to say that another explanation is possible.

📖 Dr. N.G. Dastane v. Mrs. S. Dastane, (1975) 2 SCC 326

Held: The normal rule which governs civil proceedings is that a fact is said to be established if it is proved by a preponderance of probabilities, and this is for the reason that under the provision corresponding to Section 2(1)(j), a fact is said to be proved when 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.

A matrimonial proceeding is a civil proceeding, and the standard of proof beyond reasonable doubt has no application to it. Neither the Evidence Act nor the matrimonial legislation requires proof beyond reasonable doubt, and importing that standard into matrimonial causes is unwarranted.

Ratio: The civil standard applies to all civil proceedings including matrimonial causes, and the criminal standard is not to be imported into them.

The decision is important beyond matrimonial law, because it settles the general proposition by reference to the statutory definition of 'proved' in Section 2(1)(j). The definition speaks of the court believing a fact to exist, or considering its existence so probable that a prudent man ought to act upon the supposition — which is the language of probability, not of certainty.

4.2 Degrees within the civil standard

Although there is one civil standard, the quality of evidence a court requires varies with the seriousness of what is alleged. An allegation of fraud, forgery, undue influence or a benami transaction is inherently improbable, and more cogent material is needed to make it more probable than not than would be needed for an ordinary commercial fact.

This is not a third standard. It is an application of the same standard to allegations whose antecedent improbability is greater — and it is the reason such pleas are so often rejected for want of particulars and proof.

4.3 Affirmative pleas

A defendant who does more than deny — who sets up payment, limitation, fraud, a custom, a benami transaction, or an oral agreement under a proviso to Section 95 — assumes the burden of proving what he asserts. Section 106 places the burden as to any particular fact on the person who wishes the court to believe in its existence.

📖 Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3

Held: It is well settled that the burden of proving that a transaction is benami lies on the person who asserts it, and that the burden must be strictly discharged by legal evidence of a definite character. The intention of the person who contributed the purchase money is the crucial question, and it must be decided on the legal evidence, not on suspicion.

The Court identified the circumstances which are relevant, including the source from which the purchase money came; the nature and possession of the property after the purchase; the motive for giving the transaction a benami colour; the position of the parties and their relationship; the custody of the title deeds after the sale; and the conduct of the parties in dealing with the property.

Ratio: He who pleads benami must prove it, and the six circumstances supply the framework for doing so.

5. What Fixes the Issues

The two systems identify what must be proved in different ways, and the difference affects the whole conduct of a case.

In a civil suit the pleadings govern. The court frames issues under Order XIV of the Code of Civil Procedure, 1908 on the material propositions of fact or law affirmed by one party and denied by the other, and the Explanation to Section 2(1)(g) of the Adhiniyam makes each such issue of fact a fact in issue. A party who has not pleaded a case cannot prove it, and a party who pleads more than he needs assumes a burden he need not have assumed.

In a criminal trial the charge governs, and behind the charge lie the ingredients supplied by the substantive law. The prosecution must prove each ingredient; the accused files no pleading and is not required to disclose his defence in advance.

⚠ The consequence for drafting

In civil practice the burden is very largely a drafting question. A plaint or written statement that asserts fraud, forgery or a benami transaction commits the party to proving it by evidence of a definite character, and where the same relief was available on a narrower case the wider plea has cost him. The allocation of the burden should be worked out before the pleading is settled, not after the issues are framed.

6. The Same Facts in Both Forums

A single set of facts frequently produces both a prosecution and a suit — a motor accident, a cheque dishonour, an assault, a fraud. The two proceed independently, and the different standards mean the outcomes may diverge without either being wrong.

An acquittal does not bind the civil court. The criminal court held only that guilt was not established beyond reasonable doubt. The civil court asks whether liability is more probable than not, and may answer yes on the same evidence.

A conviction does not bind the civil court either. The reasoning is different but the result is the same: under Section 37 of the Adhiniyam, judgments other than those falling within Sections 34 to 36 are irrelevant except as to their existence. A criminal judgment is a judgment in personam, and its findings are not evidence in a proceeding between different parties.

The parties are also different. A prosecution is between the State and the accused; a suit is between private parties. Neither res judicata nor issue estoppel operates across the divide in the ordinary case.

What may be proved in the civil suit is the existence of the criminal judgment where that fact is itself relevant — as in a suit for malicious prosecution, where the plaintiff proves that he was prosecuted and acquitted. The acquittal establishes the fact of acquittal; it does not establish innocence.

7. Where the Standards Meet

Three situations produce a hybrid, and each requires care.

7.1 Reverse burdens in criminal cases

Where a statute places a burden on an accused — Section 108 of the Adhiniyam, or a provision such as the presumption under Section 139 of the Negotiable Instruments Act, 1881 — he discharges it on the civil standard. A criminal trial therefore applies both standards: beyond reasonable doubt to what the prosecution must prove, and preponderance of probabilities to what the accused must prove.

7.2 Quasi-criminal civil proceedings

Contempt proceedings, and proceedings for the imposition of a penalty, attract a standard closer to the criminal one because of what is at stake, even though the proceeding is not a prosecution.

7.3 Foundational facts of a presumption against an accused

Where a presumption operates against an accused, the foundational facts must be proved beyond reasonable doubt before it arises — with the qualification that where the statute uses the word 'shown' rather than 'proved', as Section 118 does, the threshold is lower. Only after the presumption arises does the accused rebut it on the civil standard.

8. Practical Consequences

Situation	Criminal	Civil
Two views reasonably possible on the evidence	The view favourable to the accused prevails — Kali Ram	The more probable view prevails
The defence version is improbable but not impossible	May still create a reasonable doubt	The more probable version wins
Neither side's version is convincing	Acquittal	The party bearing the legal burden loses
A party withholds a document in his possession	Illustration (g) to Section 119 — adverse inference	Illustration (g) to Section 119 — adverse inference
A fact is especially within one party's knowledge	Section 109, confined to exceptional cases and never displacing the prosecution's burden	Section 109 operates more readily
An allegation of fraud or forgery	Must be proved beyond reasonable doubt as an ingredient	Civil standard, but more cogent evidence is required

9. The Position Stated Shortly

The same sections govern both, and the general rule in Sections 104 and 105 applies to each.
The criminal standard is beyond reasonable doubt, and where two views are reasonably possible the one favourable to the accused prevails — Kali Ram.
A reasonable doubt must arise from the evidence, and exaggerated devotion to the rule is itself a danger — Shivaji Sahabrao Bobade.
The civil standard is a preponderance of probabilities, and it applies to every civil proceeding including matrimonial causes — Dastane.
There is one civil standard, but serious allegations require more cogent evidence to render them more probable than not.
The issues are fixed by the pleadings in a civil suit and by the charge in a criminal trial, which makes the burden largely a drafting question in civil practice.
An acquittal does not bind a civil court, nor does a conviction, the standards and the parties being different.
An accused rebutting a burden placed on him does so on the civil standard, so a criminal trial may apply both standards at once.

10. Related Topics and Provisions

Topic or provision	Connection
Burden of Proof — Sections 104 to 120	The chapter as a whole
Presumption of Innocence	The principle that shapes the criminal side
Reverse Burden of Proof	Where the criminal position is altered by statute
Burden of Proof vs Onus of Proof	The distinction between the fixed burden and the shifting onus
Proof, Burden of Proof and Standard of Proof	The definition of 'proved' in Section 2(1)(j)
Relevancy of Judgments — Sections 34 to 38	Why a criminal judgment does not bind a civil court
Section 108, BSA	The burden on an accused setting up a defence
Order XIV, Code of Civil Procedure, 1908	Framing of issues, which fixes what must be proved in a suit