• Adv Govind Bali
• Law of Evidence, Law Student Notes
• August 22, 2026

Burden of Proof and Presumptions under the Bharatiya Sakshya Adhiniyam, 2023

Statutory Map: Sections 104–120 BSA

Part I — The General Burden: Sections 104–107

Section 104: Whoever Asserts Must Prove

Section 104 states the starting principle of evidence law. A person who wants a court to give judgment as to a legal right or liability dependent on facts asserted by that person must prove those facts. The provision applies across civil and criminal litigation, although the standard of proof differs.

The official statutory text may be checked on India Code — Bharatiya Sakshya Adhiniyam, 2023.

Section 105: Who Would Lose If Nobody Led Evidence?

Section 105 supplies a practical courtroom test: imagine that neither side produces any evidence. The party who would fail is the party on whom the burden lies. This is especially useful in civil suits concerning title, contracts, declarations, damages and other asserted rights.

Section 106: Burden as to a Particular Fact

The general legal burden and the burden regarding one particular fact are not always the same. Section 106 provides that the burden of proof as to a particular fact lies on the person who wishes the court to believe in its existence, unless law provides that proof of that fact shall lie on another person.

For example, a defendant may deny the plaintiff’s entire claim but affirmatively assert payment, novation, waiver, limitation-saving acknowledgement, consent or another distinct fact. The burden on that particular assertion may lie on the party making it even though the overall legal burden remains elsewhere.

Section 107: Preliminary Facts for Admissibility

Sometimes evidence becomes admissible only after another foundational fact is proved. Section 107 allocates the burden of proving that preliminary fact to the party seeking admission of the evidence.

Part II — Section 108: Accused Relying on a General or Special Exception

Section 108 is the BSA counterpart of former Section 105 Evidence Act. When an accused seeks to bring the case within a general exception, special exception or proviso contained in the penal law defining the offence, the burden of proving the existence of those circumstances lies upon the accused, and the court starts with the statutory presumption that such circumstances are absent.

This is directly relevant to defences such as mistake, accident, necessity, infancy, unsoundness of mind, consent and private defence under the BNS. For the substantive law, see our General Exceptions under BNS guide.

What Standard Must the Accused Meet?

The accused does not have to prove an exception beyond reasonable doubt. The Supreme Court has repeatedly held that the defence burden is ordinarily discharged on a preponderance of probability. The accused may do so through defence evidence, cross-examination, prosecution evidence, surrounding circumstances, or a combination of these.

In Chunni Bai v. State of Chhattisgarh, 2025 INSC 577, the Supreme Court reiterated the Dahyabhai Chhaganbhai Thakkar framework: the prosecution retains the burden of proving the offence and mens rea beyond reasonable doubt; the accused’s burden to establish an exception is no higher than the civil standard; and even where the exception is not conclusively proved, the material may still generate reasonable doubt about an ingredient of the offence.

Part III — Section 109: Facts Especially Within Knowledge

Section 109 states that where any fact is especially within the knowledge of a person, the burden of proving that fact is upon that person. The word “especially” is important. It refers to facts that are pre-eminently or exceptionally within that person’s knowledge and which the opposing party cannot reasonably be expected to prove in the ordinary way.

State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261

In State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261, the Supreme Court gave a detailed restatement of former Section 106 Evidence Act, the predecessor of Section 109 BSA. The Court stressed that the prosecution’s ordinary burden is not modified; the special-knowledge rule applies after the prosecution establishes a sufficient prima facie or foundational case.

In a homicide occurring inside a home, for instance, proven exclusive presence, conduct, surrounding circumstances and the absence of third-party involvement may supply the foundational facts. Only then does the accused’s failure to explain facts especially within personal knowledge become evidentially significant.

Section 109 vs Presumption of Guilt

Section 109 does not create a universal presumption of guilt. Silence or a false explanation cannot, by itself, replace proof of the offence. The safe sequence is:

1. Prosecution proves foundational circumstances.
2. A specific fact remains especially within the accused’s knowledge.
3. The court fairly calls for an explanation.
4. The quality or absence of that explanation is considered along with the prosecution evidence.

Part IV — Sections 110–114: Life, Relationships, Ownership and Good Faith

Sections 110–111: Presumptions Concerning Life and Death

Section 110 deals with a person shown to have been alive within thirty years: the burden of proving that the person is dead lies on the party asserting death. Section 111 addresses the converse situation where a person has not been heard of for seven years by those who would naturally have heard from that person; the burden then lies on the person asserting that he or she remains alive.

Sections 112–113: Relationship and Ownership

Section 112 concerns relationships such as partners, landlord and tenant, and principal and agent where the relationship has been shown to exist. Section 113 addresses ownership where possession has been established. These provisions reflect a practical evidentiary principle: continuity or possession can shift the burden to the party asserting termination, non-existence or lack of ownership.

Section 114: Active Confidence and Good Faith

Where one party stands in a relation of active confidence to another and the good faith of a transaction is questioned, the burden of proving good faith may lie on the party occupying the position of active confidence. The rule is important in fiduciary and influence-sensitive transactions because the dominant party often controls the information necessary to explain fairness.

Part V — Section 115: Presumption as to Certain Offences

Section 115 is a specialised presumption concerning specified offences committed in a disturbed area or an area experiencing extensive disturbance of public peace for more than one month. Where the statutory geographical, temporal and factual conditions are established—including presence at a place from which firearms or explosives were used against armed forces or public-order forces—the statute creates a rebuttable presumption concerning specified BNS offences.

The specified offences include Sections 147–150 BNS and conspiracy, attempt or abetment relating to the offences identified in the provision. Students should treat Section 115 as a special statutory presumption requiring strict proof of triggering facts, not as a general public-order presumption.

Part VI — Section 116: Birth During Marriage and Conclusive Proof of Legitimacy

Section 116 provides that birth during the continuance of a valid marriage, or within 280 days after its dissolution while the mother remains unmarried, is conclusive proof that the child is the legitimate child of the man, unless it can be shown that the parties had no access to each other at any time when the child could have been begotten.

Part VII — Section 117: Abetment of Suicide by a Married Woman

Section 117 applies when the question is whether a woman’s suicide was abetted by her husband or a relative of her husband. Where it is shown that she committed suicide within seven years of marriage and that the husband or relative subjected her to cruelty, the court may presume, having regard to all other circumstances, that the suicide was abetted by that person.

Why “May Presume” Matters

The presumption is discretionary, not automatic. The foundational facts must first be proved, and the court must then examine all other circumstances before deciding whether to draw the inference.

In Naresh Kumar v. State of Haryana, 2024 INSC 149, the Supreme Court emphasised the distinction between the discretionary presumption under former Section 113A and the mandatory presumption under former Section 113B. Mere suicide within seven years of marriage was insufficient; cruelty or harassment and the full circumstances had to be proved before the discretionary presumption could arise. Section 117 BSA carries forward that structure.

Part VIII — Section 118: Presumption as to Dowry Death

Section 118 is stronger. When the question is whether a person committed the dowry death of a woman and it is shown that soon before her death she was subjected by that person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that the person caused the dowry death.

The expression “dowry death” is tied to Section 80 BNS. The presumption is mandatory only after the prosecution proves the required foundational facts. It cannot be invoked merely because a married woman died unnaturally.

Foundational Facts for Section 118

Recent Supreme Court Application: Mahesh Chand, 2026 INSC 440

In Mahesh Chand v. State of Uttar Pradesh, 2026 INSC 440, the Supreme Court expressly referred to Section 118 BSA while considering bail in a dowry-death prosecution and criticised an approach that overlooked the statutory presumption despite allegations of dowry demand, continuing harassment and death at the matrimonial home within seven years of marriage.

A 2025 Supreme Court decision, Yogendra Pal Singh v. Raghvendra Singh @ Prince, 2025 INSC 1367, similarly reiterated that the dowry-death presumption arises only after proof of the legislatively mandated foundation, particularly cruelty or harassment connected with dowry and its proximate relationship to death.

Part IX — Section 119: Court May Presume Existence of Certain Facts

Section 119 is the BSA’s broad common-sense presumption provision. The court may presume the existence of a fact which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public or private business in relation to the facts of the particular case.

Important Illustrative Uses

• Recent possession of stolen property: depending on circumstances, the court may draw an inference about theft or knowing receipt unless satisfactorily explained.
• Ordinary course of business: regular official or business acts may support an inference that ordinary procedure was followed.
• Withholding best evidence: where a party possesses material evidence and does not produce it without satisfactory explanation, the court may draw an adverse inference that the evidence would have been unfavourable.
• Human conduct: the court may use ordinary human behaviour as an evidentiary aid, but cannot replace proof with speculation.

Section 119 is discretionary. A presumption must fit the facts of the particular case and remain subject to rebuttal where the statutory form is “may presume”.

Part X — Section 120: Presumption as to Absence of Consent in Certain Rape Prosecutions

Section 120 applies in a prosecution for rape under Section 64(2) BNS where sexual intercourse by the accused is proved, the question is whether it was without the woman’s consent, and the woman states in her evidence before the court that she did not consent. In that situation, the court shall presume that she did not consent.

The provision is specific. It does not create a universal statutory presumption in every sexual-offence prosecution. Students must identify the charged provision, prove the triggering statutory facts and distinguish the presumption from the broader substantive definition of consent under the BNS.

Part XI — “May Presume”, “Shall Presume” and “Conclusive Proof”

Part XII — BSA vs Indian Evidence Act Cross-Reference

How to Solve a Burden-of-Proof Problem Question

Frequently Asked Examination Questions

1. Explain the general rule of burden of proof under Section 104 BSA.
2. How is the burden determined under Section 105?
3. Distinguish legal burden from burden as to a particular fact.
4. Explain Section 107 on foundational facts for admissibility.
5. What is the burden on an accused relying on a General Exception?
6. What standard of proof applies to an accused under Section 108?
7. Explain Dahyabhai Chhaganbhai Thakkar in the BSA context.
8. What is a fact especially within knowledge under Section 109?
9. Can Section 109 cure defects in the prosecution case?
10. Explain State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261.
11. What is the seven-year presumption of death?
12. Explain burden relating to ownership and possession.
13. Explain Section 114 on active confidence and good faith.
14. What is Section 115 BSA?
15. Explain conclusive proof of legitimacy under Section 116.
16. Distinguish Sections 117 and 118.
17. What does “soon before her death” mean for dowry-death presumption?
18. Explain adverse inference under Section 119.
19. Distinguish “may presume”, “shall presume” and “conclusive proof”.
20. Explain Section 120 on absence of consent.

One-Minute Revision

Academic note: This article is for legal education and examination preparation. Statutory presumptions are highly fact-sensitive and may interact with substantive offences, constitutional safeguards and special legislation. The current statutory text and full judgments should be checked before professional reliance.