This article is authored by Parul Kannauje, a fourth-year B.A.LL.B. student of GITAM Law School, Visakhapatnam, during her internship with LeDroit India.
Scope of the Article
The concept of burden of proof determines what proof will be provided to the court regarding the case and who would provide that proof. Details regarding the law of evidence are regulated under the Bharatiya Sakshya Adhiniyam, 2023, which has replaced the Indian Evidence Act, 1872, with effect from 1st July 2024. Burden of proof and the onus probandi are two concepts defined under section 104 to 113 of the Act. Both these concepts are used to prove facts under civil and criminal laws. This section discusses the general rules regarding the proof of facts and the concept of shifting the burden of proof. The purpose of the article is to compare the burden of proof and the onus probandi or the onus of proof. It will also highlight the cases where the courts have applied these principles.
Abstract
The idea of burden of proof as provided under Bharatiya Sakshya Adhiniyam refers to one of the simpler principles that has been employed in the court of law to prove the facts. As has been mentioned before, the law of burden of proof and onus probandi were present in the Indian Evidence Act, 1872, by sections 101 to 114, and now it has been made part of the Bharatiya Sakshya Adhiniyam, through sections 104 to 114. The basic rule is how the parties have to prove the facts and how this burden changes once the facts and evidence are presented before the court and how this evidence is going to lead to the presumption of the facts. The goal of this article is to explain the rules that have been explained in sections 104 – 107 as well as the exceptions in relation to criminal cases in sections 108 and 109 and the reasoning of the court behind various presumptions that are based on death, relation and ownership as explained in sections 110- 113.
Keywords: Onus probandi, burden of proof, establishing of facts, Bharatiya Sakshya Adhiniyam, Indian Evidence Act.
Introduction
In the legal system and the courts, every legal dispute contains facts, and from those facts the party has to state the material facts before the court which are relevant and through which it establishes the rights and liabilities of the other parties. If one party is simply accusing the other party of something without proving the relevant facts in court, the court will regard those facts as insufficient. The principle of burden of proof is derived from the Latin word onus probandi.
From 1st July 2024, the law of evidence in India is governed by the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which has repealed the earlier Indian Evidence Act of 1872. Chapter 7 of the BSA, from sections 104 to 113, deals with the concept of burden of proof.
The provisions that are dealing with the burden of proof not only tell how a party should establish the facts before the court. But it also tells at what time or stage of the trial the facts or the evidence has to be produced. The actual burden of proof in criminal cases is generally upon the prosecution; it has to prove that the accused has committed the offence. But if the prosecution has succeeded in providing the circumstantial evidence and established the fact that the accused has committed the crime, then the onus will shift from the prosecution to the defence. Now the defence, while providing the establishing facts, which are contradictory to the prosecution’s facts, has to prove the innocence of the accused.
The Supreme Court of India has repeatedly stated that the two important concepts under the law of evidence, i.e., burden of proof and onus probandi, are similar but distinct from each other. The court has provided the differences in various judgments.
Meaning of Burden of Proof and Onus Probandi
The term or expression burden of proof means that it is a legal obligation that has been placed upon the party that the to prove, provide, or establish the facts which are necessary to support the claims made by the party. Under section 104 of the BSA, a party who is seeking the claim or who has to seek the judgment from the court concerning a legal right or liability will be depending upon the facts or the evidence which must be proved.
For example, in a criminal case, the prosecution bears the burden of proving the guilt of the accused beyond a reasonable doubt.
The term onus of proof, which is also be used interchangeably with the term burden of proof, has other kinds of procedural importance. The onus talks about proving or producing the direct or indirect evidence at a specific stage of trial. The onus can shift from one party to another party, unlike the burden, under which the prosecution has to prove the guilt of the accused beyond reasonable doubt,
In the case of Anil Rishi v. Gurbaksh Singh, the Supreme Court of India has discussed the difference between the burden and onus and stated that the burden will remain with the prosecution till the last stage of trial, but the onus may shift from the prosecution to the defence as soon as one of the parties produces the supporting evidence, and the court also stated that initially the burden will be on the party who is asserting their claim.
Thus, simply, we can state that Burden of proof = legal obligation to establish the case and Onus of proof = evidential responsibility that may shift during the proceedings.
General Rules under Section 104
Section 104 of BSA deals with the general rules for governing the burden of proof. The person who wants to seeks judgment from the court of law related to the rights and liabilities which has bee asserted by that person must prove the facts before the court of law. The basic principle behind this provision is that the person who is claiming shall also prove the fact.
For example, if a person asserts that they were given land in a will and the other party refuses it, the burden of proof is on the claimant to prove the will’s existence and validity.
The provision is made to treat both the parties in a fair manner, and it also helps the court to safeguard the rights of a person being accused on a mere allegation.
This provision is not restricted to criminal litigation, but it can also be dealt with in civil litigation as well. In the civil matter also, the plaintiff has to establish and prove the material facts against the defendant.
Source: Burden of Proof- Section 104 of Bharatiya Sakshya Adhiniyam, 2023
On Whom the Burden Shall Lie: Section 105
Under Section 105 of the BSA, the court can test who has to bear the burden of proof. At the initial stage, the burden of proof will lie on the prosecution; the prosecution will carry the burden until and unless they produce the evidence that the accused is guilty. After producing the evidence, the burden will shift to the defence.
This rule allows for the identification of the responsible party.
For example, a plaintiff (A) brings forth a case seeking to prove ownership against a defendant (B) in which both parties submit no proof. In this scenario, A fails since the plaintiff was the one who claimed to own the property. Therefore, the plaintiff has the initial burden.
This rule stops a party from avoiding accountability simply by denying the accusations of the other party.
In the case of Anil Rishi v. Gurbaksh Singh, the Hon’ble Supreme Court elucidated that the initial burden usually lies on the party that claims affirmative evidence in respect of the issue. The Court also stated that pleadings are not evidence in themselves, and a party cannot avoid its initial burden on the basis that the relevant evidence is in the possession of the opposite party.
Source: On whom burden of proof lies – Section 105 of BSA, 2023
Section 106: Burden as to a Particular Fact
Section 106 lays out the principle that it is for the person who asserts the existence of any fact to come forward with evidence to prove its existence unless a law states otherwise.
This is a specific application of the principle.
Let us assume that A is prosecuting B for theft and wants the court to believe B’s alleged admission of theft to C. It will be up to A to substantiate this alleged admission. On the other hand, if B were to argue that he was somewhere else at the time of the theft, it would be for B to prove this fact.
Accordingly, the provision applies on a case-by-case basis.
Source: Burden of proof as to particular fact – Section 106 of BSA, 2023
Section 107: Facts Necessary to Make Other Evidence Admissible
Section 107 deals with a corresponding evidential issue. If a party is out to introduce evidence regarding another fact, that party must first of all establish the fact which will make the concerned evidence admissible.
For instance, if A wants to prove the contents of a missing document through secondary evidence, A must first prove the fact that the original document has indeed been lost and that the circumstances warrant the use of secondary evidence.
Likewise, if a party intends to use a dying declaration, the necessary foundation for its use needs to be established before its admission.
The provision, therefore, bars a party from using any evidence unless prior conditions for the admission of that evidence have been fulfilled by the concerned party.
Source: Burden Of Proving Fact to Be Proved to Make Evidence Admissible – Section 107 of BSA, 2023
Section 108: Burden When the Accused Relies on an Exception
Section 108 specifically talks about crimes. Where an accused argues that the situation is covered by a General Exception under the Bharatiya Nyaya Sanhita, 2023, or any other particular exception or legally recognized defense, he must demonstrate the existence of said situation.
For instance, in the case of a defendant charged with murder, talking about such circumstances when committing his act that are accepted by law as a valid legal exception, he has to provide proof that those circumstances exist.
Apart from that, this clause does not imply that the accusation requires no proof from the prosecution.
The Supreme Court has always held that any clause meant as Section 108 cannot be interpreted in such a way as to overturn the traditional presumption of innocence or put the burden of proof in guilt entirely upon an accused.
The distinction is significant, as the prosecution is obliged to prove all elements of the crime, while any accused claiming to rely on a statutory exception bears the burden of supporting evidence regarding the situation establishing this exception.
Source: Burden Of Proving That Case Of Accused Comes Within Exceptions – Section 108 of BSA, 2023
Section 109: Facts Especially Within Knowledge
According to Section 109, the rule dictates that whenever there is a fact which is particularly within the knowledge of a certain individual, such individual is burdened with establishing that fact.
This is an exception to the general principle because an individual with special knowledge generally has the maximum ability to enlighten the situation.
Still, Section 109 cannot be seen as a general mode of shifting entire burdens of proving to the accused by the prosecution.
In the case of Shambhu Nath Mehra v. State of Ajmer, the Indian Supreme Court clarified the relevant provision under the Indian Evidence Act and noted that the phrase “especially within the knowledge” indicates those events that are specifically known to the particular individual. The provision does not free the prosecution from its general duty to prove the guilt of the accused person.
In subsequent cases, the same idea was reaffirmed by the Supreme Court. In the case of State of Rajasthan v. Kashi Ram, the Court emphasized that the prosecution cannot invoke the special knowledge rule to substitute for establishing the essential facts of the case.
The Supreme Court has reiterated once again that the principle of special knowledge is not to spare the prosecution from its basic requirement of proving a case against the accused. Supreme Court judgment on Section 106 and special knowledge.
As a result, the application of Section 109 requires a cautious approach. The prosecution is first required to find the right case for establishing the nexus between the accused and the fact situations before applying the special knowledge rule.
Source: Burden Of Proving Fact Especially Within Knowledge – Section 109 of BSA, 2023
Sections 110 and 111: Presumptions Regarding Death and Life
In section 110, the focus is on the responsibility of demonstrating that a person, last known to have been alive in the past thirty years, is dead.
When an individual was once thought to be alive within thirty years, whoever claims that the individual is dead must demonstrate the occurrence of such death.
Section 111, on the other hand, describes the opposite instance. In cases when an individual has not been seen or heard of for the past seven years by the people who would have had any interactions with that individual if they were alive, it is the responsibility of the claimant to demonstrate the life of that very person.
The provisions under consideration should be regarded as practical rules of evidence arising from the absence of the person in question.
They do not serve to establish an irrevocable presumption in any case.
Section 112: Relationship of Partners, Landlord and Tenant, Principal and Agent
Section 112 touches upon various relationships, including partnerships, landlord-tenant relations and principal-agent relationships.
When individuals have acted in accordance with a certain legal relationship, law may impose the responsibility of proving that such relationship does not exist on the person who challenges that relationship.
This provision illustrates the reality that when behavior and circumstances have established a recognizable legal relationship, it is the party claiming to deny that relationship who will be required to prove its case.
These presumptions are particularly beneficial when the relationship in question has already been established through behavior, transactions, or other documents.
Section 113: Burden of Proof as to Ownership
The rule set out in Section 113 is a very important one. When a certain individual is said to be in possession of something and it is questioned whether the individual is its owner, it is the responsibility of the person who claims that the possessor is not the owner to prove that the possessor is not the owner.
The principle is based on the practical reality that possession is evidence of ownership, although the presumption may be countered with evidence to the contrary.
An important recent application of Section 113 occurred in 2025 when the Supreme Court in the case of Yerikala Sunkalamma & Anr. V. State Of Andhra Pradesh, Department of Revenue & Ors. The court held that made the ruling about the ownership of disputed land. The Court said that as soon as possession was proved, the burden of proof shifted to the party disputing the possessor’s ownership and requiring it to establish a better title. The Court specifically said that Section 113 is applied even in the case when the claimant is the State.
Thus, the article indicates the way in which the law can change the evidentiary burden of proof with regard to a fact that has already been established.
Source: Burden Of Proof as to Ownership – Section 113 of BSA, 2023
Shifting of Burden of Proof
One of the most important points regarding evidence law is the shifting of the burden. The burden of proof generally rests with the party with the burden of proof as per law. However, there are scenarios wherein one party can shift the burden of proof to the other party during the trial.
For example: A brought a suit in court claiming a certain property and supported his claim with adequate evidence which enables him to prove prima facie ownership of the property. The moment the party A succeeds in proving the claim, the burden shifts to the party B.
Now, party B has to provide evidence in disproving the claim of party A. After the provision of evidential material by party B, the burden shifts back to party A.
Such shifting of the burden may go on throughout the trial.
In this connection, the Supreme Court came up with interesting findings in Chowdamma v. Venkatappa (2025), ruling that burden of proof and onus of proof are two different legal categories and that the onus may shift after a prima facie case is established by the respective party in a case.
Burden of Proof in Civil and Criminal Proceedings
In civil and criminal cases, the burden of proof works differently.
For civil cases, the standard of proof is usually “the balance of probabilities”, meaning that the court needs to determine which party has given the more acceptable version of the evidence.
In criminal life, prosecutors would normally have the burden of proof to show that someone is guilty beyond reasonable doubt. The fact that the standard is higher shows that being charged with a crime can have serious consequences.
However, accused individuals might be under the burden of providing evidence when it comes to certain exceptions or to facts that are known to them only. Nevertheless, such obligations don’t imply that the burden of proof is laid on the accused.
The importance of this distinction lies in the fact that it implies that the accused cannot be purely convicted just because the person didn’t explain something. Before demonstrating that something is the case, the prosecutor should provide necessary basic facts.
Conclusion
Sections 104-113 of the Bharatiya Sakshya Adhiniyam, 2023 clarify the issue of burden of proof, by developing the rules regarding which party is required to prove which set of facts before the court. As a general rule, the one who claims a fact is obliged to prove it.
Nonetheless, the principle that the evidential burden does not remain constant at all stages of the legal proceeding is acknowledged by the law. Once the party has produced enough evidence, the burden falls upon the other party to refute this evidence. Sections 108 and 109 list the situations when the accused and the person with special knowledge carry the burden of proof. Sections 110-113 contain other provisions based on pragmatic assumptions regarding the death, relations and property rights.
The distinction between burden of proof and onus of proof is therefore crucial. The burden represents the ultimate legal responsibility, while the onus concerns the changing evidential responsibility during the trial. Judges should apply this principle carefully so that procedural assumptions do not wrongfully supersede the obligation of plaintiffs or prosecutors to prove their case.
In the end, the main aim of the law of burden of proof is to find the right compromise between the necessity for a plaintiff to establish the grounds for the relief they ask for and negligence of the defendant to prove the case properly. Consequently, correct interpretation of the sections from 104 to 113 enhances justice, efficiency, and reliability of judicial proceedings.
