Burden of Proof under Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Introduction

The concept of Burden of Proof is a fundamental principle of evidence law. Under the Bharatiya Sakshya Adhiniyam, 2023, the burden of proof determines which party is legally bound to prove a fact in court. In criminal as well as civil cases, the success or failure of a case largely depends upon the proper discharge of this burden.

The law relating to burden of proof ensures fairness in trials and prevents arbitrary convictions.

What is Burden of Proof?

In simple terms, burden of proof means the obligation to prove a fact. It lies on the party who asserts the existence of a fact.

If a person makes an allegation, that person must prove it. If he fails to do so, the court will not accept the claim.

There are two essential aspects:

1. Burden of proof as a matter of law

2. Burden of proof as a matter of fact (onus probandi)

General Principle of Burden of Proof

The basic rule is:

“He who asserts must prove.”

In criminal cases, the prosecution carries the burden to prove the guilt of the accused beyond reasonable doubt.

In civil cases, the burden is decided on the basis of preponderance of probabilities.

Burden of Proof under BSA, 2023 (Corresponding to Sections 101–114)

The Bharatiya Sakshya Adhiniyam continues the same principles earlier contained in the Evidence Act, 1872, but with updated language and structure.

Section: Burden of Proof

Section 101 (BSA) – Burden of Proof

Whoever desires the court to give judgment as to any legal right or liability dependent on facts which he asserts, must prove those facts.

📌 Illustration

If A claims that B committed a crime, A must prove the commission of the crime.

Section 102 – On Whom the Burden Lies

The burden of proof lies on the person who would fail if no evidence were given on either side.

📌 Example

If no evidence is produced, the party whose claim collapses bears the burden.

Section 103 – Burden of Proof as to Particular Fact

The burden of proving a particular fact lies on the person who wishes the court to believe in its existence, unless law provides otherwise.

Section 104 – Burden of Proving Fact to Make Evidence Admissible

When a fact must be proved to make evidence admissible, the burden lies on the person who wants to use that evidence.

📌 Example:

To admit a confession, voluntariness must be proved.

Section 105 – Burden of Proving Exception

When an accused pleads an exception, the burden of proving that exception lies on the accused.

📌 Example:

If the accused pleads insanity, he must prove it.

Section 107 – Presumption of Death after Seven Years

If a person has not been heard of for seven years by those who would naturally have heard of him, the burden of proving that he is alive lies on the person who affirms it.

Section 114A – Presumption as to Absence of Consent (Sexual Offences)

In prosecutions for rape, when sexual intercourse is proved and the woman states in court that she did not consent, the court shall presume absence of consent.

📌 The burden shifts to the accused.

Important Case Laws 

State of Punjab v. Karnail Singh

The Supreme Court held that the prosecution must establish guilt beyond reasonable doubt. Failure to discharge the burden results in acquittal.

Jingo v. Dev Raj (AIR 1993 J&K HC)

In civil matters, delay and surrounding circumstances are relevant in deciding on whom the burden lies.

Joseph Shine v. Union of India (AIR 2019 SC)

Presumptions must operate within constitutional limits and fairness.

Illustrations 

● If A accuses B of theft, A must prove theft.

● If B claims an exception, B must prove the exception.

● In rape cases, once intercourse is proved and consent denied, burden shifts to accused.

Importance of Burden of Proof

● Ensures fair trial

● Protects innocent persons

● Prevents arbitrary punishment

● Maintains judicial balance

Conclusion

The burden of proof is the backbone of the law of evidence. Under the Bharatiya Sakshya Adhiniyam, 2023, the principles remain rooted in justice, fairness, and logic. The burden initially lies on the party who asserts a fact and shifts only when legally justified. Courts must carefully apply these principles to ensure just outcomes.

Exam-Oriented Questions & Answers

Q1. Define Burden of Proof under BSA.

Ans: 

Burden of proof is the legal obligation on a party to prove the facts asserted by him.

Q2. On whom does the burden of proof lie in criminal cases?

Ans: 

On the prosecution.

Q3. What is Section 105 BSA?

Ans: 

It places the burden of proving exceptions on the accused.

Q4. Explain Section 114A.

Ans: 

It presumes absence of consent in rape cases when the woman states so in court.