Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Presumption as to Certain Offences [Section 115]
1. Introduction
Certain offences such as waging war, attempting to wage war, or abetting the waging of war against the Government of India are treated as extremely serious due to their direct impact on national security and public order. Because such acts often occur in disturbed or insurgency-like conditions—where direct evidence may be difficult to collect--Section 115 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) authorises the Court to raise a statutory presumption against an accused person if specific conditions are fulfilled.

2. Section 115(1): When the Presumption Arises
Under Section 115(1), the Court shall presume (unless the contrary is shown) that the accused committed the offence, when the following conditions exist:
A. Accusation of specified offencesThe person must be accused of an offence listed in Section 115(2).
B. The place must be within a special disturbed contextThe offence must relate to an area that is either:

1. A “disturbed area” declared under any law meant for suppression of disorder and maintenance of public order; or
2. An area where, for more than one month, there has been extensive disturbance of public peace.

C. Presence at a specific place and timeIt must be shown that the accused was present at a place in such area at the time when:

• firearms or explosives were used, and
• they were used at or from that place, to:
  • attack, or
  • resist
    the members of:
  • any armed forces, or
  • forces responsible for maintenance of public order,
    while they were acting in discharge of their official duties.

✅ Effect:
If these conditions are satisfied, the Court shall presume that such person committed the offence unless the contrary is shown.

3. Nature of Presumption

• This is a presumption of law (statutory presumption).
• It is rebuttable because the wording is: “shall be presumed unless the contrary is shown.”
• Once the prosecution establishes the foundational facts (disturbed area + presence + firearm/explosive attack), the burden shifts to the accused to rebut the presumption.

4. Offences Covered – Section 115(2)Section 115(2) specifies which offences trigger Section 115(1). These include:
(a) Direct BNS offencesOffences under the Bharatiya Nyaya Sanhita, 2023:

• Section 147 – Waging, attempting to wage war, or abetting waging war against the Government of India
• Section 148 – Conspiracy to commit offences punishable under Section 147
• Section 149 – Collecting arms etc., with intention of waging war against the Government of India
• Section 150 – Concealing with intent to facilitate design to wage war

(b) Related forms of liabilityAlso covered are:

• Criminal conspiracy, or
• attempt, or
• abetment
  to commit offences under:
• Section 149, or
• Section 150 of BNS, 2023.

5. Key Notes (Quick Revision)

• Applies in disturbed areas or areas of prolonged public peace disturbance.
• Triggered when accused is shown to be present at a location used for firearm/explosive attack/resistance against forces on duty.
• Presumption is mandatory (shall presume) but rebuttable.
• Once foundational facts are proved, burden shifts to accused to show contrary.