Burden of Proof under Sections 104 to 120 of the Bharatiya Sakshya Adhiniyam, 2023

Every contested case reaches a point where the evidence on both sides has been heard and the court is left uncertain. The rules about burden of proof decide who loses at that point. They are therefore not a technicality about who speaks first but a rule about who bears the risk of the court remaining unpersuaded — and seventeen sections distribute that risk across civil and criminal litigation, sometimes by general principle and sometimes by reversing the ordinary position outright.

1. The Chapter

Section	Subject	IEA
104	Burden of proof — he who asserts must prove	101
105	On whom burden of proof lies — who would fail if no evidence were given	102
106	Burden of proof as to a particular fact	103
107	Burden of proving a fact to be proved to make evidence admissible	104
108	Burden of proving that the case of the accused comes within exceptions	105
109	Burden of proving a fact especially within knowledge	106
110	Burden of proving death of a person known to have been alive within thirty years	107
111	Burden of proving that a person is alive who has not been heard of for seven years	108
112	Burden as to relationship — partners, landlord and tenant, principal and agent	109
113	Burden of proof as to ownership	110
114	Proof of good faith in transactions where one party is in a relation of active confidence	111
115	Presumption as to certain offences in disturbed areas	111A
116	Birth during marriage — conclusive proof of legitimacy	112
117	Presumption as to abetment of suicide by a married woman	113A
118	Presumption as to dowry death	113B
119	Court may presume existence of certain facts	114
120	Presumption as to absence of consent in certain prosecutions for rape	114A

Section 113 of the Indian Evidence Act, the provision relating to the cession of territory, has been omitted as a colonial relic. Everything else is carried forward.

2. The General Rules — Sections 104 to 106

Sections 104, 105 and 106, 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. 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 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.

Section 106. 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.

The three sections state the general principle at three levels and are frequently run together, which obscures what each is doing.

Section 104 is the principle. Ei incumbit probatio qui dicit, non qui negat — the burden of proof lies on him who asserts, not on him who denies. A party seeking a judgment must prove the facts on which his right or liability depends.

Section 105 supplies the test. The burden lies on the person who would fail if no evidence at all were given on either side. This is the practical formulation, and it is the one to apply when the allocation is disputed: imagine that neither side leads any evidence, and ask who loses.

Section 106 descends to particular facts. Within a case, the burden as to any particular fact lies on the person who wishes the court to believe in its existence — subject always to any law providing otherwise, which is the opening through which every reverse burden in the chapter operates.

⚠ Section 105 answers the question of who begins

The test in Section 105 also determines the right to begin. In a civil suit, Order XVIII Rule 1 of the Code of Civil Procedure, 1908 gives the right to begin to the plaintiff, unless the defendant admits the facts alleged and contends that on a point of law or on some additional facts he is entitled to judgment — in which case the defendant begins. The two provisions work together, and a defendant who has admitted the plaintiff's facts and set up a plea of his own should expect to open.

3. The Criminal Setting

In a criminal trial the general rule produces a principle of constitutional weight: the prosecution must prove the guilt of the accused, and must prove it beyond reasonable doubt. The accused need prove nothing.

📖 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 presumption of innocence places the burden on the prosecution throughout, subject only to insanity and to statutory exceptions.

The Adhiniyam preserves the principle by its silence — there is no provision placing any burden on an accused generally — and then creates the statutory exceptions the golden thread contemplates. Section 108 is the general one; Sections 115, 117, 118 and 120 are specific.

4. Section 108 — Exceptions and Defences

Section 108, BSA — Burden of proving that case of accused comes within exceptions

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.

The section reverses the ordinary position for defences. Private defence, accident, insanity, intoxication, mistake of fact, consent — each is a matter the accused must establish, and the court is directed to presume their absence until he does.

Two qualifications keep the section within the golden thread, and both are settled.

The standard on the accused is the civil standard. He discharges the burden on a preponderance of probabilities; he need not establish his defence beyond reasonable doubt. It is enough that he renders his version probable.

The prosecution's burden is unaffected. Section 108 does not relieve the prosecution of proving the ingredients of the offence beyond reasonable doubt. And material which fails to establish a defence affirmatively may nevertheless create a reasonable doubt about the prosecution case — in which case the accused is entitled to an acquittal even though he has not discharged the burden under Section 108.

⚠ The two questions are asked separately

A court dealing with a defence asks two questions, not one. Has the accused established the exception on a preponderance of probabilities? If yes, he is acquitted on that footing. If no, the court asks a second question: does the material nevertheless raise a reasonable doubt about the prosecution case? If it does, he is acquitted on that footing instead. Conflating the two — treating the failure of the defence as proof of the prosecution case — is a recurring error.

5. Section 109 — Facts Especially Within Knowledge

Section 109, BSA — Burden of proving fact especially within knowledge

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

The section rests on a practical proposition: where a fact lies peculiarly within one person's knowledge, requiring the other side to prove it would impose an impossible burden.

Its scope has been carefully confined, because read widely it would swallow the presumption of innocence altogether.

📖 Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404

Held: The provision corresponding to Section 109 is an exception to the general rule that the prosecution must prove its case, and it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused.

The section cannot be used to relieve the prosecution of its burden. The word 'especially' means facts that are pre-eminently or exceptionally within the knowledge of the accused. If the section were read otherwise, it would mean that a man accused of an offence must prove his innocence, and that is not the law.

Ratio: The section applies only to facts exceptionally within the accused's knowledge and does not shift the prosecution's burden of proving the offence.

The provision is nevertheless of real force where the facts genuinely are within the accused's exclusive knowledge, and its most important application is to deaths occurring inside a household.

📖 State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382

Held: Where the prosecution establishes that the deceased was last seen in the custody of the accused and thereafter was found dead, and the accused offer no explanation of what happened to him, the provision corresponding to Section 109 operates. The court is entitled to draw the inference that the accused are responsible, since the facts of what occurred while the deceased was in their custody are especially within their knowledge.

Ratio: Where an accused had exclusive custody or access, his silence about what happened is a circumstance the court may act upon.

The provision therefore works most naturally alongside the last seen circumstance and with Illustration (g) to Section 119, and it is applied with caution: the prosecution must first establish the foundational circumstances, and only then does the absence of explanation acquire significance.

6. Sections 110 and 111 — Death and Survival

Sections 110 and 111, BSA

Section 110. When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 111. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

The two sections are complements and are often treated as presumptions, though the Adhiniyam frames them as rules about burden.

Section 110 gives effect to the ordinary continuity of things: a person shown to have been alive is presumed to continue alive, and whoever asserts his death must prove it.

Section 111 reverses that after seven years of unexplained absence. The requirement is not merely that nobody has heard of him but that he has not been heard of by those who would naturally have heard of him — which requires evidence about who those persons are and what enquiries were made.

⚠ Section 111 says nothing about when death occurred

The section shifts the burden on the question whether a person is alive. It does not establish the time of death, and there is no presumption that death occurred at the end of the seven years or at any other particular moment. Where the date matters — for succession, for a survivorship question, for a policy of insurance — it must be proved as a fact by whoever asserts it. This is a settled and frequently overlooked limitation.

7. Sections 112 to 114 — Continuity, Possession and Confidence

Three sections place the burden by reference to an established state of affairs.

7.1 Section 112 — Continuing relationships

Where the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that the relationship has ceased is on the person who affirms that it has.

The principle is continuity. A relationship shown to have existed is presumed to continue, and whoever asserts its termination must prove it.

7.2 Section 113 — Possession and ownership

Where the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not.

This is the evidentiary expression of the maxim that possession is good title against all but the true owner. Its practical effect in litigation is considerable: a plaintiff seeking to disturb a person in possession must prove his own title, and the possessor need prove nothing until he does.

7.3 Section 114 — Active confidence

Section 114, BSA — Proof of good faith in transactions where one party is in relation of active confidence

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

The section reverses the burden where the relationship itself creates the risk of overreaching. The party in the position of confidence — an advocate dealing with his client, a trustee with a beneficiary, a guardian with a ward, a doctor with a patient, a spiritual adviser with a disciple — must affirmatively prove the good faith of the transaction.

What must be established is not merely the absence of fraud but that the transaction was fair: that the other party was fully informed, that he understood the effect, that the consideration was adequate, and ideally that he had independent advice. The provision is the evidentiary counterpart of the doctrine of undue influence in the contract law.

8. Sections 115 to 118 and 120 — The Specific Reversals

Five provisions create reverse burdens in defined situations, and they are the most heavily litigated in the chapter.

8.1 Section 115 — Disturbed areas

Where a person is accused of certain offences under the Bharatiya Nyaya Sanhita, 2023 and it is shown that he was at a place in a disturbed area at a time when firearms or explosive substances were used from that place to attack or resist the armed forces or forces charged with maintaining public order, it shall be presumed, unless the contrary is shown, that such person had committed such offence.

The formula — 'shall be presumed, unless the contrary is shown' — is not among the three grades defined in Section 2(1). It reads as a mandatory rebuttable presumption in the same family as 'shall presume', but the statutory definition does not supply its meaning.

8.2 Section 116 — Legitimacy

Birth during the continuance of a valid marriage, or within two hundred and eighty days after its dissolution the mother remaining unmarried, is conclusive proof of legitimacy — unless it can be shown that the parties had no access to each other at any time when the child could have been begotten.

This is one of only two conclusive-proof provisions in the Adhiniyam, the other being Section 35. Proof of non-access does not rebut the presumption; it prevents it from arising, being part of the foundational fact. The collision between this provision and DNA evidence is examined separately.

8.3 Section 117 — Abetment of suicide by a married woman

Where a woman commits suicide within seven years of her marriage and it is shown that her husband or a relative of his had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that the suicide had been abetted by him.

📖 Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618

Held: The presumption corresponding to Section 117 is discretionary, not mandatory. The words 'may presume' leave it to the court to decide, having regard to all the other circumstances of the case, whether to draw the inference. The presumption does not arise merely because the two conditions — suicide within seven years, and cruelty — are established; the court must be satisfied on the whole of the material that the suicide was abetted.

Ratio: Section 117 is a may-presume provision, and the words 'having regard to all the other circumstances of the case' are a real limitation on it.

8.4 Section 118 — Dowry death

Where it is shown that soon before her death a woman had been subjected by a person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

The contrast with Section 117 is deliberate and decisive. Section 117 is discretionary; Section 118 is mandatory. Once the foundational facts are established, the court has no choice, and the burden of disproof lies on the accused.

📖 Sher Singh alias Partapa v. State of Haryana, (2015) 3 SCC 724

Held: The word used in the provision corresponding to Section 118 is 'shown' and not 'proved', and the distinction is deliberate. The prosecution must show the foundational facts — cruelty or harassment for or in connection with a demand for dowry, soon before the death — after which the presumption operates and the onus shifts to the accused to disprove the presumed fact. The accused discharges that onus on a preponderance of probabilities, not beyond reasonable doubt.

Ratio: The legislature's choice of 'shown' rather than 'proved' lowers the threshold for the foundational facts, and the accused rebuts on the civil standard.

8.5 Section 120 — Absence of consent

In a prosecution for the specified sexual offences, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman, and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.

Three conditions must coincide: intercourse must be proved, not merely alleged; the question of consent must be in issue; and the woman must so state in her evidence. The presumption does not arise from the allegation, and it does not arise if she does not depose.

The provision operates alongside Section 48, which makes evidence of the character or previous sexual experience of the victim irrelevant on the issue of consent, and the proviso to Section 149, which bars cross-examination on those matters.

9. Section 119 — The General Presumption

Section 119, BSA — Court may presume existence of certain facts

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

This is the residuary provision and the widest in the chapter. It is a may presume section, so the court may either draw the inference or call for proof, and the illustrations are the most cited part of it.

Illustration	The presumption	Practical use
(a)	A man in possession of stolen goods soon after the theft is either the thief or has received them knowing them to be stolen, unless he can account for his possession	The foundation of the recent-possession inference in theft and dacoity cases
(b)	An accomplice is unworthy of credit unless corroborated in material particulars	Read with Section 138, under which an accomplice is a competent witness
(c)	A bill of exchange accepted or endorsed was accepted or endorsed for good consideration	Commercial litigation
(d)	A thing or state of things shown to exist within a period shorter than that after which such things cease to exist is still in existence	Continuity of a state of affairs
(e)	Judicial and official acts have been regularly performed	Omnia praesumuntur rite esse acta
(f)	The common course of business has been followed in particular cases	Proof of despatch, service and routine transactions
(g)	Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it	The adverse inference — the most used of the nine
(h)	A man refusing to answer a question he is not compelled to answer would give an answer unfavourable to him	Refusal to submit to a test or to give a sample
(i)	When an obligation is due, the obligation has been discharged	Presumption of payment

Each illustration carries an explanatory note directing the court to consider the circumstances in which the presumption would or would not be appropriate, and those notes are as important as the illustrations. The court is not to apply the illustration mechanically but to ask whether, on the facts before it, the inference is one a prudent person would draw.

📖 Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413

Held: Even if the burden of proof does not lie on a party, the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not a sound practice for those desiring to rely on a certain state of facts to withhold from the court the best evidence which is in their possession and which could throw light on the matter in controversy, and then to contend that the party on whom the burden lay has failed to discharge it.

Ratio: Illustration (g) operates regardless of where the burden lies, and withholding material in one's possession attracts an inference.

10. The Chapter in Summary

Group	Sections	Effect
General rules	104, 105, 106	He who asserts must prove; the burden lies on the party who would fail if no evidence were given
Admissibility	107	The party asserting a fact needed to make evidence admissible must prove it
Criminal defences	108	The accused must establish exceptions, on a preponderance of probabilities
Exclusive knowledge	109	Facts especially within a person's knowledge must be proved by him
Continuity	110, 111, 112, 113	Life, relationships and possession are presumed to continue; whoever asserts a change must prove it
Fiduciary transactions	114	The party in a position of active confidence must prove good faith
Specific reversals	115, 116, 117, 118, 120	Disturbed areas, legitimacy, abetment of suicide, dowry death, absence of consent
Residuary	119	The court may presume any fact likely to have happened, with nine illustrations

11. The Position Stated Shortly

Section 104 states the principle — he who asserts must prove — and Section 105 supplies the test: who would fail if no evidence at all were given.
In a criminal trial the prosecution bears the burden throughout, subject to statutory exceptions.
Section 108 places defences on the accused, but he discharges it on a preponderance of probabilities, and material failing to establish a defence may still raise a reasonable doubt.
Section 109 is confined to facts exceptionally within a person's knowledge and cannot relieve the prosecution of its burden — Shambhu Nath Mehra.
Section 111 shifts the burden after seven years' absence but says nothing about the date of death.
Sections 112 to 114 rest on continuity, possession and confidence, and Section 114 requires affirmative proof of good faith.
Section 117 is discretionary and Section 118 is mandatory — a deliberate contrast, and Section 118 uses 'shown' rather than 'proved'.
Section 119 is the residuary provision, and Illustration (g) — the adverse inference from withholding evidence — is the most used of the nine.

12. Related Topics and Provisions

Topic or provision	Connection
Burden of Proof vs Onus of Proof	The distinction between the two, and why one shifts and the other does not
Shifting of Burden of Proof	The mechanisms by which the onus moves during a trial
Presumptions under the Bharatiya Sakshya Adhiniyam	The three grades, and the conclusive proof in Section 116
Proof, Burden of Proof and Standard of Proof	The standards applied in civil and criminal proceedings
Last Seen Theory	Where Section 109 operates most naturally
DNA Evidence	The collision between Section 116 and scientific proof
Sections 48 and 149, BSA	Character and previous sexual experience, operating with Section 120
Order XVIII Rule 1, Code of Civil Procedure, 1908	The right to begin, determined by the test in Section 105