Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Introduction: Burden of Proof

​Part IV of the Bharatiya Sakshya Adhiniyam, 2023 (Sections 104 to 170) deals with the production and effect of evidence, that is, the manner in which facts are to be proved before a court of law. This Part lays down the procedural framework governing how evidence is presented, evaluated, and relied upon in judicial proceedings.

Classification under Part IV
The provisions relating to production and effect of evidence are divided into the following categories:

1. Burden of Proof – Sections 104 to 120
2. Estoppel – Sections 121 to 123
3. Witnesses and their Examination – Sections 124 to 168
4. Improper Admission and Rejection of Evidence – Section 169
5. Repeal and Savings – Section 170

Among these, the burden of proof occupies a central position in the law of evidence as it determines who must prove what in a legal proceeding.
Chapter VII of BSA, 2023
Chapter VII (Sections 104 to 123) of the Bharatiya Sakshya Adhiniyam, 2023 deals with two important aspects:

• Burden of Proof – Sections 104 to 114
• Presumptions by the Court – Sections 115 to 123

These provisions together regulate the responsibility of parties to prove facts and the circumstances in which courts may presume certain facts.

Meaning of Burden of Proof
In every legal proceeding, one party asserts the existence of a right or liability and claims that the opposing party is subject to a corresponding duty or obligation. The opposing party may deny the existence of those facts and contest the claimed right or liability.

This gives rise to a fundamental question:
On whom does the burden of proof lie?
The burden of proof means the obligation to prove a fact asserted by a party. The general rule of evidence is:
He who asserts must prove.
Thus, the party who alleges the existence of a fact must adduce evidence to the satisfaction of the court to establish its existence or non-existence, as the case may be.
The expression burden of proof (onus probandi) signifies that if no evidence is produced by the party on whom the burden lies, the issue must be decided against that party.

Judicial Definition
In Sher Singh @ Partapa v. State of Haryana, the Supreme Court referred to the definition of burden of proof as given in The Concise Dictionary of Law (Oxford), which states:
The burden of proof is the duty of a party to litigation to prove a fact or facts in issue. Generally, it lies upon the party who substantially asserts the truth of a particular fact. A distinction is drawn between the legal (persuasive) burden and the evidentiary burden.
This definition highlights two distinct dimensions of the burden of proof.

Two Meanings of Burden of Proof
As applied to judicial proceedings, the term burden of proof has two distinct meanings:

1. Burden of Proof as a Matter of Law and Pleadings (Legal Burden)
   • This refers to the obligation to establish the entire case.
   • It determines which party will fail if no evidence is led.
   • This burden is fixed and constant throughout the trial.
   • It is reflected in Section 104 of the BSA.
   • Lord Denning described this as the legal burden.
2. Burden of Proof in the Sense of Introducing Evidence (Evidentiary Burden / Onus of Proof)
   • This refers to the obligation to produce evidence at a particular stage.
   • It shifts from one party to the other during the course of trial.
   • It is provisional or tactical in nature.
   • This concept is embodied in Section 105 of the BSA.

Burden of Proof under Criminal Law
In criminal proceedings:

• The burden of establishing the charge lies entirely on the prosecution.
• The accused is presumed to be innocent until proven guilty.
• The accused is not required to prove his innocence.
• The prosecution must prove guilt beyond reasonable doubt.
• The prosecution must stand on its own evidence; weaknesses in the defence do not strengthen the prosecution case.

Thus, Section 104 operates strictly in favour of the accused in criminal trials.

Burden of Proof under Civil Law
In civil proceedings:

• The burden of proof lies on the party who asserts the existence of a fact.
• The standard of proof is preponderance of probabilities, not proof beyond reasonable doubt.
• The court looks at the substance of the claim, not merely the form of pleadings.
• The burden is discharged when the court finds that the asserted facts are more probable than not.

This standard applies uniformly to all civil cases.

Conclusion
The concept of burden of proof forms the backbone of the law of evidence. Sections 104 to 114 of the Bharatiya Sakshya Adhiniyam, 2023 codify both the legal burden and the evidentiary burden, ensuring clarity as to who must prove what and at what stage. By distinguishing between civil and criminal standards of proof and recognizing shifting onus during trial, the law strikes a careful balance between fairness, justice, and procedural efficiency.