What is The burden of proof in the Bharatiya Sakshya Adhiniyam 2023 ?
The burden of proof in the Bharatiya Sakshya Adhiniyam (BSA), 2023 refers to the obligation on a party to establish the truth of a fact in issue. It requires the party making an allegation or claim to provide sufficient evidence to convince the court. The burden typically lies on the prosecution in criminal cases and the plaintiff in civil cases.
PART IV PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII OF THE BURDEN OF PROOF
Provision: Section 104. 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, 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.
Illustrations.
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
Explanation: Section 104 lays out the fundamental rule: the party who seeks a judgment based on specific facts bears the burden of proving those facts. This applies to both civil and criminal cases, as illustrated in the section:
- In criminal cases, the prosecution seeking punishment for a crime must prove the defendant committed it.
- In civil cases, A plaintiff seeking ownership of land must prove the facts supporting their claim.
Provision: Section 105.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.
Illustrations.
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B
Explanation: Section 105 introduces a practical test: the burden lies with the party who would lose if no evidence were presented. This helps determine the burden in situations where the initial responsibility might be unclear.
Provision: Section 106.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.
Illustration.
A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Explanation: Section 106 refines this further: for any particular fact, the burden rests on the party who wants the court to accept its existence, unless a specific law dictates otherwise.
Example: If someone claims they were elsewhere at the time of the crime (alibi), they must prove it.
Provision: Section 107.Burden of proving fact to be proved 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.
Illustrations.
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.
Explanation: Burden of Proof for Admissibility:
Section 107 addresses situations where proving one fact is necessary to introduce evidence of another. The burden of proving the foundational fact lies with the party seeking to present the subsequent evidence. Our conversation history illustrates this with dying declarations: before presenting the declaration itself, the party must prove the declarant is deceased.
Provision: Section 108 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
Illustrations.
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 117 of the Bharatiya Nyaya Sanhita, 2023 provides that whoever, except in the case provided for by sub-section (2) of section 122, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 117. The burden of proving the circumstances bringing the case under sub-section (2) of section 122 lies on A
Provision: Section 109 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.
Illustrations.
(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.
Explanation: Shifting the Burden:
The BSA also outlines situations where the burden can shift from one party to another.
- General Exceptions (Section 108): In criminal cases, if the accused invokes a general exception (like insanity or provocation), the burden of proving those circumstances shifts to the accused. The court presumes the absence of such circumstances unless the accused proves otherwise.
- Facts Within Special Knowledge (Section 109): If a fact is specifically within one party’s knowledge, the burden of proving that fact rests on that party. For example, in a fare evasion case, the accused must prove they had a ticket.
Provision: Section 116.Birth during marriage, conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Provision: Section 117. Presumption as to abetment of suicide by a married woman.
When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in section 86 of the Bharatiya Nyaya Sanhita, 2023
Provision: Section 118. Presumption as to dowry death
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such 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.
Explanation.—For the purposes of this section, “dowry death” shall have the same meaning as in section 80 of the Bharatiya Nyaya Sanhita, 2023.
Explanation: Presumptions:
The BSA establishes presumptions about certain facts, which can impact the burden of proof.
- Legitimacy (Section 116): A child born during a valid marriage is presumed legitimate, shifting the burden to the party disputing paternity.
- Suicide by a Married Woman: If a married woman commits suicide within 7 years of marriage and it’s proven that her husband or his relatives subjected her to cruelty, the court may presume they abetted the suicide.
- Dowry Death (Section 118): If a woman experiences cruelty or harassment for dowry demands shortly before her death, the court presumes her husband caused her death.
Discretionary Presumptions (Section 119):
The court has discretion to presume the existence of certain facts based on common sense, human behaviour, and business practices. Examples include:
- Possession of stolen goods shortly after a theft suggests the possessor is the thief or received them knowingly.
- An accomplice’s testimony is unreliable without corroboration.
- Presumption as to absence of consent in certain prosecution for rape.(Section120)
Section 158 Impeaching the Credit of a Witness Under Bharatiya Sakshya Adhiniyam
Comparison of The burden of proof in Civil and Criminal Cases
| Criteria | Civil Cases | Criminal Cases |
| Who bears the burden? | Plaintiff (person initiating the case) | Prosecution (state or complainant) |
| Standard of Proof | Preponderance of Evidence | Beyond a Reasonable Doubt |
| Objective | Prove liability or entitlement | Prove guilt or innocence |
| Example | Proving ownership of land | Proving the accused committed a crime |
Shifting The burden of proof under Different Sections
| Section | Provision | Who Bears the Burden? | Key Illustration |
| Section 104 | General rule of burden of proof | Party asserting the fact | A claiming B committed a crime must prove it. |
| Section 105 | Burden in suits/proceedings | Party that would fail if no evidence is given | A suing B for land possession must prove ownership. |
| Section 106 | Particular facts | Person asserting the fact | B claiming an alibi must prove their whereabouts. |
| Section 108 | General exceptions in criminal cases | Accused | A claiming insanity as a defense must prove it. |
Recent Landmark Supreme Court cases on The burden of proof
Uma & Anr. v. The State Rep. By The Deputy Superintendent of Police (2022)
Court: Supreme Court of India
Judgment Date: February 11, 2022
Case Overview:
This case centered around the burden of proof in a dowry death under Section 304B of the Indian Penal Code (IPC). The prosecution accused the husband and mother-in-law of a woman who had died within seven years of marriage, alleging that they subjected her to cruelty related to dowry demands, which led to her unnatural death.
Legal Issues:
- Applicability of Presumption:
Under Section 113B of the Indian Evidence Act (now Section 118 of the Bharatiya Sakshya Adhiniyam, 2023), if a woman dies under suspicious circumstances within seven years of marriage and has been subjected to cruelty or harassment for dowry demands, the court can presume that her husband or in-laws caused the death. - Burden of Proof:
- The initial burden was on the prosecution to establish:
- The death occurred within seven years of marriage.
- The woman was subjected to dowry-related cruelty.
- Once these facts were established, the burden shifted to the accused to rebut the presumption of guilt.
- The initial burden was on the prosecution to establish:
Court’s Findings:
- The prosecution successfully demonstrated that the victim had been subjected to cruelty related to dowry demands shortly before her death.
- The defense failed to provide evidence or explanation to rebut the presumption under Section 113B of the Indian Evidence Act (now Section 118 BSA, 2023).
- Therefore, the Supreme Court upheld the conviction of the accused.
Key Takeaways on Burden of Proof:
- Prosecution’s Duty:
The prosecution must prove the essential elements of dowry death:- Death within seven years of marriage.
- Evidence of cruelty or harassment related to dowry.
- Shifting of Burden:
- Once the prosecution establishes these elements, the burden of proof shifts to the accused.
- The accused must prove that there was no cruelty or dowry demand, or provide an alternative explanation for the death.
- Failure to Rebut:
- If the accused cannot rebut the presumption, the court is justified in convicting based on the presumption of guilt.
Relevance for Law Students:
This case illustrates how the burden of proof operates in dowry death cases and how statutory presumptions can shift the responsibility to the defense once foundational facts are established. It highlights the importance of presenting credible evidence when rebutting legal presumptions.
Other landmark Supreme Court cases on burden of proof
Section 104: General Rule of Burden of Proof
Case: Lakhan Singh vs State of Bihar (1966 AIR 740)
- Key Point: The Supreme Court held that the prosecution must prove every element of the offense beyond a reasonable doubt. The benefit of the doubt must always favor the accused.
Case: State of Rajasthan vs Shobha Ram (2013)
- Key Point: The burden of proof rests on the prosecution, and failure to prove guilt beyond a reasonable doubt results in acquittal.
Section 105: On Whom the Burden of Proof Lies
Case: K.M. Nanavati vs State of Maharashtra (1962 AIR 605)
- Key Point: The Supreme Court ruled that when the accused claims an exception (like provocation), the burden shifts to the accused to prove it.
Case: Harbhajan Singh vs State of Punjab (1966 AIR 97)
- Key Point: The burden of proof for an exception lies on the accused, and they must establish it with a preponderance of probability, not beyond reasonable doubt.
Section 106: Burden of Proof for Particular Facts
Case: Shambu Nath Mehra vs State of Ajmer (1956 SCR 199)
- Key Point: The Court held that if a fact is within the special knowledge of the accused, they must prove it. This principle is crucial in cases involving alibis.
Section 108: General Exceptions in Criminal Cases
Case: State of U.P. vs Ram Swarup (1974 AIR 1570)
- Key Point: The accused must prove exceptions like insanity. The burden is not as strict as the prosecution’s burden but must establish a probability.
FAQs: The burden of proof in the Bharatiya Sakshya Adhiniyam, 2023
1. What is the burden of proof under the BSA Act?
The burden of proof under the Bharatiya Sakshya Adhiniyam (BSA), 2023 refers to the obligation on a party to establish the truth of a fact in issue. It requires the party making an allegation or claim to provide sufficient evidence to convince the court. The burden typically lies on the prosecution in criminal cases and the plaintiff in civil cases.
2. What is Section 104 of the BSA?
Section 104 of the BSA, 2023 corresponds to Section 104 of the Indian Evidence Act, 1872, and addresses situations where one fact must be proved to allow the proof of another fact. It states that if the admissibility of evidence depends on proving a preliminary fact, the burden of proving that preliminary fact lies on the party asserting it.
3. What do you mean by the burden of proof?
The burden of proof refers to the legal obligation of a party to substantiate its claims or allegations with evidence. It has two components:
- Burden of Production: The duty to present evidence.
- Burden of Persuasion: The duty to convince the judge or jury of the truth of the evidence.
4. What is Section 119 of the BSA?
Section 119 of the BSA, 2023 corresponds to the provision related to presumptions in cases of dowry death, previously found in Section 113B of the Indian Evidence Act, 1872. It establishes that in dowry death cases, if the death occurs within seven years of marriage and there is evidence of cruelty or harassment, the court shall presume the accused’s involvement unless rebutted.
5. What is Section 104 of the Indian Evidence Act?
Section 104 of the Indian Evidence Act, 1872, mirrors the provision in Section 104 of the BSA, 2023. It stipulates that when one fact’s admissibility depends on proving another fact, the burden of proving the preliminary fact lies on the person who asserts it.
For instance, to prove the admissibility of a document, the party must prove the document’s authenticity if questioned.
6. What happens if the burden of proof is not met?
If the party bearing the burden of proof fails to provide sufficient evidence, they lose the case. In criminal cases, the accused is acquitted if the prosecution doesn’t prove guilt beyond a reasonable doubt.
7. How does the burden shift in criminal cases?
Initially, the burden is on the prosecution. However, if the accused claims a defense under general exceptions (like insanity or provocation), the burden shifts to the accused to prove it.
8. What is the standard of proof in civil vs. criminal cases?
In civil cases, it’s based on the preponderance of evidence. In criminal cases, it’s beyond a reasonable doubt.
9. Who bears the burden of proof for facts within special knowledge?
The person possessing special knowledge of the fact must prove it (Section 109). For example, in a ticketless travel case, the accused must prove they had a valid ticket.
10. Can the burden of proof change during a trial?
Yes, it can shift depending on evidence presented. For example, once the prosecution establishes a prima facie case, the defense must rebut it with credible evidence.
READ MORE: Secondary Evidence under Bharatiya Sakshya Adhiniyam 2023 : A Detailed Guide
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