- Published on
Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving that the Case of the Accused Comes within Exceptions [Section 108]
1. Introduction
The general rule of evidence is that the burden of proof lies on the person who asserts a fact. In criminal law, this means that the prosecution must prove the guilt of the accused beyond reasonable doubt. However, when an accused seeks to take the benefit of any exception—such as a General Exception under the Bharatiya Nyaya Sanhita, 2023 (BNS), or a special exception or proviso under any other law—the burden of proving the existence of such circumstances lies upon the accused.
Until such circumstances are proved, the law presumes their absence.
2. Statutory Provision under Section 108
Section 108 provides that:
3. Illustrations
The application of this principle can be understood through the following illustrations:
4. Scope and Application of Section 108
Section 108 applies only in criminal cases where the accused claims the benefit of an exception. The prosecution is required only to establish the commission of the offence. Once this is done, the accused may invoke a defence under:
5. Nature of the Burden on the Accused
The burden placed on the accused under Section 108 is not as stringent as the burden on the prosecution. The prosecution must prove guilt beyond reasonable doubt, whereas the accused is required to prove his defence only on the basis of the preponderance of probabilities.
This means:
6. Mode of Discharging the Burden
The accused may discharge the burden under Section 108 by:
7. Judicial Interpretation
The courts have consistently held that:
In K.M. Nanavati v. State of Maharashtra, where the accused claimed the defence of grave and sudden provocation, the Supreme Court observed that although the prosecution bears the primary burden, once the accused invokes a General Exception, Section 108 operates to shift the burden onto him. As Nanavati failed to establish the plea of provocation even on a balance of probabilities, he was convicted of murder.
8. Conclusion
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 embodies an important exception to the general rule of burden of proof in criminal trials. While reaffirming the presumption of innocence and the prosecution’s duty to prove guilt beyond reasonable doubt, it ensures that an accused who seeks the benefit of an exception must establish the factual foundation for such a claim. By requiring proof only on the standard of preponderance of probabilities, the law strikes a fair balance between individual defence rights and the administration of criminal justice.
1. Introduction
The general rule of evidence is that the burden of proof lies on the person who asserts a fact. In criminal law, this means that the prosecution must prove the guilt of the accused beyond reasonable doubt. However, when an accused seeks to take the benefit of any exception—such as a General Exception under the Bharatiya Nyaya Sanhita, 2023 (BNS), or a special exception or proviso under any other law—the burden of proving the existence of such circumstances lies upon the accused.
Until such circumstances are proved, the law presumes their absence.
2. Statutory Provision under Section 108
Section 108 provides that:
- 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 the Sanhita or in any other law defining the offence,
- lies upon the accused, and
- the Court shall presume the absence of such circumstances.
3. Illustrations
The application of this principle can be understood through the following illustrations:
- Illustration (a):
A is accused of murder and pleads that, due to unsoundness of mind, he did not know the nature of his act. The burden of proving such unsoundness of mind lies on A. - Illustration (b):
A is accused of murder and claims that he acted under grave and sudden provocation. The burden of proving the existence of such provocation is on A. - Illustration (c):
A is charged with voluntarily causing grievous hurt under Section 117 of the Bharatiya Nyaya Sanhita, 2023. If he claims that his act falls within the exception provided under sub-section (2) of Section 122, the burden of proving such circumstances rests on A.
4. Scope and Application of Section 108
Section 108 applies only in criminal cases where the accused claims the benefit of an exception. The prosecution is required only to establish the commission of the offence. Once this is done, the accused may invoke a defence under:
- General Exceptions of the Bharatiya Nyaya Sanhita, 2023; or
- Any special exception or proviso contained in the law defining the offence.
5. Nature of the Burden on the Accused
The burden placed on the accused under Section 108 is not as stringent as the burden on the prosecution. The prosecution must prove guilt beyond reasonable doubt, whereas the accused is required to prove his defence only on the basis of the preponderance of probabilities.
This means:
- The accused is not required to conclusively prove the existence of the exception;
- It is sufficient if the circumstances relied upon by the accused appear more probable than not.
6. Mode of Discharging the Burden
The accused may discharge the burden under Section 108 by:
- Producing independent evidence in support of his plea;
- Relying on admissions or facts emerging from the prosecution’s own evidence;
- Eliciting favourable circumstances through cross-examination of prosecution witnesses;
- Relying on surrounding circumstances and probabilities of the case.
7. Judicial Interpretation
The courts have consistently held that:
- The burden on the accused to prove an exception is lighter than the prosecution’s burden;
- It is enough if the accused shows that his plea is reasonably probable.
In K.M. Nanavati v. State of Maharashtra, where the accused claimed the defence of grave and sudden provocation, the Supreme Court observed that although the prosecution bears the primary burden, once the accused invokes a General Exception, Section 108 operates to shift the burden onto him. As Nanavati failed to establish the plea of provocation even on a balance of probabilities, he was convicted of murder.
8. Conclusion
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 embodies an important exception to the general rule of burden of proof in criminal trials. While reaffirming the presumption of innocence and the prosecution’s duty to prove guilt beyond reasonable doubt, it ensures that an accused who seeks the benefit of an exception must establish the factual foundation for such a claim. By requiring proof only on the standard of preponderance of probabilities, the law strikes a fair balance between individual defence rights and the administration of criminal justice.
0 Comments