Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Burden of Proof [Sections 104–114]
1. Meaning of Burden of Proof
The burden of proof refers to the legal obligation placed upon a person to prove the facts which he asserts before a court or authority. Whenever a person seeks a judgment, decree, or order in his favour based on certain facts, it is his duty to establish the truth of those facts by leading evidence.
In simple terms, he who asserts must prove. If the party on whom the burden lies fails to prove the asserted facts, the court cannot grant the relief sought.
Sections 104 to 114 of the Bharatiya Sakshya Adhiniyam, 2023 collectively lay down the general and special rules relating to the burden of proof.

2. Statutory Principle
A person is said to bear the burden of proof when:

• He asserts the existence of certain facts, and
• He seeks a legal consequence (judgment, order, or relief) on the basis of those facts.

The burden lies on that person to establish the existence of such facts to the satisfaction of the court.

3. Illustrations
Illustration (a): Criminal Case
A desires the Court to punish B for a crime which A alleges B has committed.
Here, the burden of proof lies on A, and A must prove beyond reasonable doubt that B committed the crime.
Illustration (b): Civil Case
A desires the Court to declare that he is entitled to certain land in the possession of B, based on facts asserted by A and denied by B.
Here, the burden of proof lies on A, who must prove the existence of those facts on which his claim is based.

4. Scope of Sections 104–114
Sections 104–114 form a complete code on the law relating to burden of proof and include:

• General rules regarding who must prove a fact (Sections 104–106);
• Special rules dealing with admissibility of evidence, exceptions, special knowledge, presumptions, ownership, relationships, and good faith (Sections 107–114);
• Rules that determine how and when the burden may shift due to presumptions or special circumstances.

These provisions apply to both civil and criminal proceedings, subject to the differing standards of proof.

5. Nature of Burden of Proof

• The burden of proof is a rule of law, not discretion.
• It determines which party must ultimately fail if the evidence is evenly balanced or absent.
• The burden remains constant throughout the proceedings, though the onus of producing evidence may shift from one party to another.

6. Object and Rationale
The object of placing the burden of proof on the person asserting a fact is:

• To ensure fairness in adjudication;
• To prevent frivolous or unsupported claims;
• To promote certainty and judicial discipline.

Since courts decide disputes on the basis of evidence, a party who approaches the court must justify his claim by proving the facts on which it is founded.

7. Conclusion
Sections 104–114 of the Bharatiya Sakshya Adhiniyam, 2023 lay down the foundational principles governing the burden of proof. The law mandates that a person who seeks a judgment or legal relief must prove the facts on which his claim rests. Failure to discharge this burden results in failure of the claim, thereby ensuring fairness, accountability, and logical adjudication in the administration of justice.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proof and Onus of Proof 
1. Burden of Proof
The burden of proof refers to the legal responsibility placed upon a party to prove the facts that he asserts in order to obtain a judgment in his favour. It is codified under Section 104 of the Bharatiya Sakshya Adhiniyam, 2023.

The burden of proof relates to the entire case and not merely to individual facts. It lies on the party who would fail if no evidence were produced by either side. Once fixed, the burden of proof remains constant throughout the proceedings and does not shift during the trial.
The party on whom the burden of proof lies must succeed on the strength of his own evidence and cannot take advantage of weaknesses in the opponent’s case. If he fails to discharge this burden, the suit or proceeding must fail.

2. Onus of Proof
​The onus of proof means the obligation to produce evidence in support of a particular fact or issue at a particular stage of the trial. It is codified under Section 105 of the Bharatiya Sakshya Adhiniyam, 2023.

Unlike the burden of proof, the onus of proof is concerned with specific facts or issues rather than the whole case. Initially, the onus lies on the party who would be unsuccessful if no evidence were led. However, the onus of proof is not static; it shifts from one party to another during the course of trial depending upon the evidence adduced, admissions made, or presumptions raised.
Once a party discharges the onus by leading sufficient evidence, the onus shifts to the opposite party to rebut or counter that evidence.

3. Distinction between Burden of Proof and Onus of Proof
The burden of proof and onus of proof are closely related but distinct concepts. The burden of proof refers to the duty to establish the whole case, whereas the onus of proof refers to the duty to lead evidence at a particular stage of the proceedings.
The burden of proof is fixed and constant, while the onus of proof is variable and shifting. The burden of proof is a matter of law, whereas the onus of proof is influenced by the state of evidence at different stages of the trial.

4. Judicial View
In Anil Rishi v. Gurbaksh Singh, the Supreme Court clarified that the burden of proof remains constant throughout the trial, but the onus of proof may shift from time to time depending upon the evidence adduced by the parties.
Similarly, in Debbarma (Dead) through Legal Representatives v. Prabha Ranjan Debbarma, the Supreme Court emphasized that a plaintiff must prove his title by leading positive evidence and cannot rely merely on the failure of the defendant to prove his case. The onus may shift, but the burden of proof remains on the party asserting the claim.

5. Conclusion
In summary, the burden of proof determines who must ultimately prove the case, while the onus of proof governs the responsibility of producing evidence at different stages of the trial. Both concepts work together to ensure a fair and orderly process of adjudication under the Bharatiya Sakshya Adhiniyam, 2023.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proof as to Particular Fact [Section 106]
1. Introduction
In judicial proceedings, a court does not accept facts merely because they are asserted. If a party desires the Court to believe the existence of a particular fact, the responsibility of proving that fact lies on that party. This principle reflects the fundamental rule that he who asserts must prove.
Section 106 of the Bharatiya Sakshya Adhiniyam, 2023 specifically deals with the burden of proof concerning a particular fact, as distinguished from the burden of proving the entire case.

2. Statutory Provision under Section 106
Section 106 provides that:

• The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless any law expressly provides that the proof of such fact shall lie on some other person.

Thus, whenever a party relies on a specific factual assertion to support its case or defence, that party must lead evidence to establish that fact.

3. Illustrations
The application of Section 106 can be understood through the following illustrations:

• Illustration (a):
  A prosecutes B for theft and wishes the Court to believe that B admitted the theft to C. The burden of proving such admission lies on A.
• Illustration (b):
  B wishes the Court to believe that at the time of the alleged theft, he was elsewhere (plea of alibi). The burden of proving this fact lies on B.

4. Scope and ApplicationSection 106 applies where:

• A party asserts a specific fact in support of its claim or defence;
• Such fact is not presumed by law; and
• No statutory provision shifts the burden of proving that fact to another person.

This Section does not require a party to prove the entire case, but only the specific fact relied upon by that party. It operates independently of the general burden of proof under Section 104.

5. Judicial Interpretation
​Courts have consistently applied Section 106 to allocate the burden of proof regarding specific facts:

• In State of Haryana v. Sher Singh, it was held that when an accused takes the plea of alibi, the burden of proving it lies upon him.
• In S.J. Ebenezer v. Velayudhan, the Supreme Court held that where a landlord seeks eviction of a tenant on the ground of bona fide requirement, the burden of proving genuine need lies on the landlord.
• In Neelakandan v. Mallika Begum, the tenant claimed protection under the Slum Areas Act. The landlady denied that the property was situated in a slum area. The Court held that the burden of proving that the property was situated in a slum area lay on the tenant.
• In Krishna Mohan Kul v. Pratima Maity, it was held that when fraud, misrepresentation, or undue influence is alleged, the burden of proving such allegations lies on the party who asserts them.

6. Difference between Section 106 and Section 104

• Section 104 deals with the burden of proving the entire case and all facts necessary to entitle a party to a judgment.
• Section 106, on the other hand, concerns the burden of proving only a particular fact relied upon by a party, not the whole chain of facts.

Thus, Section 106 operates in a narrower field and supplements the general rule contained in Section 104.

7. Relation with Section 107
While Section 106 deals with proof of a particular fact, Section 107 deals with the burden of proving a fact that is necessary to make another fact or piece of evidence admissible. Both provisions work together to ensure that facts essential for belief or admissibility are properly established before the Court.

8. Conclusion
Section 106 of the Bharatiya Sakshya Adhiniyam, 2023 reinforces the principle that a party cannot expect the Court to accept a factual assertion unless it is proved. By placing the burden of proving a particular fact on the party who asserts it, the provision promotes fairness, clarity, and judicial efficiency in adjudication.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving that the Case of the Accused Comes within Exceptions [Section 108]
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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.

At this stage, the burden shifts to the accused.

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.

This lower standard is justified because, for example, a person claiming unsoundness of mind cannot reasonably be expected to prove insanity beyond reasonable doubt.

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.

Thus, the accused is not confined to leading direct evidence alone.

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 State of U.P. v. Ram Sarup, it was held that the accused need not prove the exception beyond reasonable doubt; proof by preponderance of probabilities is sufficient.
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.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving Fact to be Proved to Make Evidence Admissible [Section 107]
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1. Introduction
In the law of evidence, a party cannot lead evidence in isolation. Very often, the admissibility of one piece of evidence depends upon the prior proof of another foundational fact. Where a person seeks to prove a fact or produce evidence which is admissible only upon proof of some preliminary fact, the burden of proving such preliminary or foundational fact lies upon that person.
Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 embodies this principle and governs the burden of proof in matters relating to the admissibility of evidence.

2. Statutory Provision under Section 107
Section 107 provides that:

• The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact lies on the person who wishes to give such evidence.

In other words, if a person wants to adduce evidence of a particular fact, and the law requires that another fact must first be proved to make such evidence admissible, then the burden of proving that preliminary fact is on the person seeking to rely on the subsequent evidence.

3. Illustrations
The operation of Section 107 can be clearly understood through the following illustrations:

• Illustration (a):
  A wishes to prove a dying declaration made by B. Since a dying declaration is admissible only when the maker of the statement is dead, A must first prove the death of B. The burden of proving B’s death lies on A.
• Illustration (b):
  A wishes to prove the contents of a lost document by secondary evidence. Before secondary evidence can be admitted, A must prove that the original document has been lost. The burden of proving such loss lies on A.

4. Scope and Application
Section 107 applies whenever:

• The admissibility of evidence depends upon the existence of a particular fact; and
• Such fact is asserted by the party seeking to adduce that evidence.

The burden of proof in this context does not relate only to substantive facts in issue, but also extends to:

• Facts relating to the admissibility of evidence;
• Facts necessary for the construction or interpretation of documents;
• Facts forming the foundation for exceptions such as hearsay evidence or secondary evidence.

Thus, the burden of adducing evidence applies equally to foundational facts and not merely to facts expressly pleaded in the case.

5. Principle Underlying Section 107
The principle underlying Section 107 is simple:
No evidence can be admitted unless the legal conditions for its admissibility are first satisfied.
If the law requires proof of a preliminary condition before a particular kind of evidence can be received, the party who wants to rely on such evidence must establish that condition. Until such proof is furnished, the evidence remains inadmissible.
For example:

• A party seeking to rely on hearsay evidence under an exception must first prove that the case falls within the recognised exception;
• A party seeking to rely on secondary evidence must prove the non-availability of the original document.

6. Judicial Interpretation
Courts have consistently held that the burden under Section 107 lies squarely on the party seeking to rely on the evidence. In Amrit Banaspati Co. Ltd. v. Union of India, it was observed that where a party challenges the constitutionality of a statute, the challenge must be specific, clear, and unambiguous. The burden of proving the alleged violation of constitutional provisions lies on the person who raises such a challenge.
This principle reinforces the rule that a party cannot be permitted to rely on evidence or legal contentions unless the foundational facts justifying their admissibility are duly established.

7. Conclusion
Section 107 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in maintaining the integrity of evidentiary rules. It ensures that evidence is admitted only after compliance with the statutory conditions governing its admissibility. By placing the burden of proving foundational facts on the party seeking to rely on such evidence, the provision prevents abuse of evidentiary rules and upholds procedural fairness in judicial proceedings.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving that a Person is Alive Who Has Not Been Heard of for Seven Years[Section 111]

1. Introduction
Questions relating to whether a person is alive or dead frequently arise in civil and criminal proceedings, especially in matters concerning succession, insurance, property rights, or matrimonial disputes. The Bharatiya Sakshya Adhiniyam, 2023 provides specific rules governing the burden of proof in such situations. Section 111 deals with the presumption of death where a person has not been heard of for a continuous period of seven years.

2. Statutory Provision under Section 111Section 111 provides that:

• When the question is whether a person is alive or dead, and
• it is proved that he has not been heard of for seven years by persons who would naturally have heard of him if he had been alive,

then the burden of proving that such person is alive shifts to the person who affirms that he is alive.
Thus, the law raises a presumption of death after seven years of unexplained absence.

3. Scope and RationaleThis provision is based on the principle of continuity of things. Ordinarily, once a state of affairs is shown to exist, the law presumes that it continues for the period during which such a state usually lasts. Human life is presumed to continue for a reasonable period, generally up to thirty years, as reflected in Section 110 of the Bharatiya Sakshya Adhiniyam.

Section 111 operates as an exception or proviso to Section 110. While Section 110 presumes continuance of life, Section 111 introduces a presumption of death when the condition of seven years’ absence is satisfied. Both sections must therefore be read together.

4. Burden of Proving DeathUnder Section 110, when a person is shown to have been alive within the last thirty years, the burden lies on the party asserting that he is dead. However, once the conditions under Section 111 are fulfilled, the presumption of continuance of life ceases, and the burden shifts to the party who claims that the person is still alive.

To attract Section 111, the following conditions must be proved:
(i) Absence for Seven YearsThe person must not have been heard of for a continuous period of seven years. Such absence gives rise to a rebuttable presumption of death.
(ii) Persons Who Would Naturally Have HeardThe absence must be established with reference to persons who would naturally and ordinarily have heard of him had he been alive, such as close family members, relatives, or friends.
If a person deliberately avoids contact—for example, an absconder evading arrest—the presumption may not arise, as silence in such cases is not unnatural.
In Hemat Kishore v. Brij Raj Kishore, where the father claimed to have seen his son alive within five years, the court refused to raise the presumption of death despite the claims of the wife and children.

5. No Presumption as to Time or Manner of Death
A crucial limitation of Section 111 is that it raises only a presumption of death, and not of:

• the time of death, or
• the manner or circumstances of death.

If the exact date or time of death is a material fact in issue, the party asserting it must prove the same by direct or circumstantial evidence.
In Saroop Singh v. Bantoo, the court held that although death could be presumed due to seven years’ absence, it could not be presumed that death occurred exactly seven years prior to the institution of the suit.

6. Presumption as to Survivorship (Simultaneous Deaths)
The principle relating to simultaneous deaths—such as when two persons die in a common calamity and the order of death cannot be determined—is not covered under Sections 110 and 111. Traditionally, the younger is presumed to have survived the elder, but this rule has been statutorily recognized under Section 21 of the Hindu Succession Act, not under the Bharatiya Sakshya Adhiniyam.

7. Judicial Interpretation
In LIC of India v. Anuradha, the Supreme Court examined the interplay between Sections 110 and 111 and laid down important principles:

• Section 111 is an exception to Section 110.
• Section 110 shifts the burden to prove death on the person asserting it.
• Section 111 shifts the burden back to the person asserting that the individual is alive.
• The presumption under Section 111 is limited strictly to the fact of death.
• No presumption arises regarding the date, time, or cause of death.
• The presumption arises only after the full lapse of seven years, not even a day earlier.
• The presumption can be raised only when the issue is brought before a competent court or authority.
• If a specific date or time of death is asserted, it must be proved by evidence and not by presumption.

8. Conclusion
Section 111 of the Bharatiya Sakshya Adhiniyam, 2023 provides a balanced rule of evidence by recognizing human probabilities while safeguarding legal certainty. By shifting the burden of proof after seven years of unexplained absence, it prevents indefinite uncertainty regarding a person’s status. At the same time, by refusing to presume the time or manner of death, the law ensures that critical facts affecting rights and liabilities are established only through proper evidence.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proof as to Ownership [Section 113]
1. Introduction
The popular maxim “possession is nine-tenths of the law” signifies the importance of possession in determining ownership. As a general rule, the person in possession of a property is presumed to be its owner. However, this presumption is not absolute, and in certain cases, ownership must be specifically proved before a court of law.
In disputes relating to possession and ownership, the following principles operate as rules of evidence:

• Possession follows title, and
• Title follows possession.

These principles are particularly applied where there is no sufficient or independent evidence to conclusively establish possession or title.

2. Statutory Provision under Section 113
Section 113 of the Bharatiya Sakshya Adhiniyam, 2023 provides that:

• When the question arises whether a person is the owner of anything of which he is shown to be in possession,
• the burden of proving that he is not the owner lies on the person who asserts that he is not the owner.

Thus, once possession is established, ownership is presumed in favour of the possessor unless disproved.

3. Conditions for the Application of Section 113For invoking Section 113, the following conditions must be satisfied:

• Possession is not prima facie wrongful
  The possession of the plaintiff or claimant must appear lawful or legitimate.
• Title of the opposite party is not proved
  The defendant or the person denying ownership must fail to establish a superior title.

Only when these two conditions are fulfilled does the presumption under Section 113 arise.

4. Nature of Possession

• The possession referred to under this section means present or actual possession, not merely juridical or constructive possession.
• Such possession raises a legal presumption of ownership in favour of the person in possession of the property.

5. Nature of Presumption

• The presumption under Section 113 is a presumption of law.
• Although a similar presumption may arise under Section 119, that presumption is a presumption of fact, which is discretionary and limited in scope.
• Section 119 applies only where there is no clear or where there is conflicting evidence regarding possession, whereas Section 113 creates a statutory presumption.

6. Conclusion
Section 113 reinforces the legal importance of possession by shifting the burden of proof onto the person who denies ownership. It promotes certainty and fairness in property disputes by protecting lawful possession, while still allowing rebuttal through proof of a better title.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proof as to Relationship in the Cases of Partners, Landlord and Tenant, Principal and Agent [Section 112]
1. IntroductionIn legal proceedings, it often becomes necessary to establish the existence or continuance of certain relationships such as partnership, landlord–tenant, or principal–agent. These relationships have significant legal consequences, particularly in matters involving rights, liabilities, and obligations of the parties. Section 112 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a clear rule regarding the burden of proof in such cases.

2. Statutory Provision under Section 112
Section 112 provides that:

• When the question arises whether persons are partners, landlord and tenant, or principal and agent, and
• it is shown that they have been acting as such,

then the burden of proving that they do not stand, or have ceased to stand, in those relationships lies on the person who asserts the denial or cessation of such relationship.
Thus, once the existence of a relationship is established by conduct, its continuance is presumed.

3. Scope and Rationale
This provision is based on the presumption of continuity of human affairs. The law assumes that a relationship, once shown to exist, continues unless evidence is produced to the contrary. Although Section 112 expressly refers to three relationships—partnership, tenancy, and agency—the underlying principle is of general application and may extend to other similar relationships.

4. Presumption of Continuity of Relationship

• If persons have been shown to act as partners, it is presumed that the partnership continues.
• If parties have acted as landlord and tenant, the tenancy is presumed to subsist.
• If parties have acted as principal and agent, the agency is presumed to continue.

The presumption operates until the person denying the relationship proves that it has either never existed or has lawfully come to an end.

5. Burden of Proof

• The burden of proof lies on the party who denies the relationship or claims that it has ceased.
• A mere assertion is not sufficient; the party must lead evidence to establish non-existence or termination of the relationship.

Illustrative Applications:

• In a landlord–tenant dispute, the burden to prove sub-letting initially lies on the landlord. However, if the landlord proves that a third party is in exclusive possession of the premises, the onus shifts to the tenant to prove that it is not a case of sub-letting.
• In disputes relating to partnership or agency, the burden to disprove the relationship or deny ownership arising from such relationship lies on the party who makes such denial.

6. Nature of Presumption
The presumption under Section 112 is a presumption of law, not merely of fact. It operates mandatorily once the foundational facts—namely, conduct indicating the relationship—are established.

7. Conclusion
Section 112 plays a crucial role in maintaining certainty and stability in legal relationships. By presuming the continuance of relationships such as partnership, tenancy, and agency, it prevents parties from arbitrarily denying established relations and ensures that the burden of proof rests on the person who seeks to challenge the existing legal position.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving the Death of a Person Known to Have Been Alive Within Thirty Years [Section 110]
1. Introduction
In legal proceedings, questions often arise as to whether a person is alive or dead, particularly in matters relating to succession, insurance claims, property disputes, and matrimonial rights. The Bharatiya Sakshya Adhiniyam, 2023 lays down clear rules regarding the burden of proof in such situations. Section 110 specifically deals with cases where a person is shown to have been alive within the last thirty years.

2. Statutory Provision under Section 110
Section 110 provides that:

• When the question is whether a person is alive or dead, and
• it is shown that such person was alive within thirty years,

then the burden of proving that he is dead lies on the person who asserts that he has died.
Thus, the law presumes the continuance of life once it is established that a person was alive within the preceding thirty years.

3. Scope and Principle
This provision is founded on the principle of presumption of continuity of life. Human life, once proved to exist, is presumed to continue for a reasonable period unless the contrary is shown. Section 110 embodies this principle by placing the onus on the party alleging death.
The presumption under this Section is rebuttable, meaning that it can be displaced by credible evidence showing that the person has in fact died. Until such evidence is produced, the court is bound to proceed on the assumption that the person continues to be alive.

4. Burden of Proof
The essential requirement to attract Section 110 is proof that the person was alive within thirty years prior to the date on which the question of life or death arises. Once this fact is established:

• The law presumes that the person is alive; and
• The party asserting death must prove it by leading appropriate evidence.

The evidence may be direct or circumstantial, depending upon the facts of the case.

5. Relationship with Section 111
Section 110 must be read together with Section 111 of the Bharatiya Sakshya Adhiniyam. While Section 110 presumes continuance of life, Section 111 provides an exception by raising a presumption of death where a person has not been heard of for seven years by those who would naturally have heard of him if he were alive. Section 111, therefore, operates as a proviso to Section 110.

6. Conclusion
Section 110 of the Bharatiya Sakshya Adhiniyam, 2023 reflects a practical and logical rule of evidence based on human experience and probability. By presuming the continuance of life for thirty years, it prevents premature or speculative conclusions regarding death and ensures that the party alleging death discharges the burden of proof. This provision, read along with Section 111, creates a coherent legal framework governing presumptions relating to life and death.

​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Burden of Proving Fact Especially Within Knowledge [Section 109]

1. Introduction
In judicial proceedings, there are situations where certain facts are exclusively or especially within the knowledge of a particular person. In such cases, it would be unreasonable and impractical to expect the opposing party to prove those facts. To address this difficulty, the Bharatiya Sakshya Adhiniyam, 2023 incorporates a special rule regarding the burden of proof under Section 109.

2. Statutory Provision under Section 109
Section 109 provides that:

• When any fact is especially within the knowledge of any person,
• the burden of proving that fact lies upon him.

This provision shifts the burden of proof only with respect to those specific facts that are peculiarly within the personal knowledge of a party.

3. Illustrations under the Section
The Act clarifies the application of this principle through illustrations:

• Illustration (a):
  When a person performs an act with an intention different from what the act and its surrounding circumstances ordinarily suggest, the burden of proving such special intention lies on that person.
• Illustration (b):
  If a person is charged with travelling on a railway without a ticket, the burden of proving that he possessed a valid ticket rests upon him, as this fact is especially within his knowledge.

4. Scope and Nature of Section 109
Section 109 is an exception to the general rule laid down in Section 104, which states that the burden of proof lies on the person who asserts a fact. This Section applies only where:

• The fact is pre-eminently or exceptionally within the knowledge of the accused or a particular party; and
• Proving such fact would be impossible or disproportionately difficult for the opposite party.

Importantly, this Section does not absolve the prosecution of its primary duty to prove the commission of an offence beyond reasonable doubt. It merely casts a limited burden on the accused to explain facts within his special knowledge, once the prosecution has established foundational facts.

5. Rationale of Section 109
The word “especially” signifies facts that are not merely within the general knowledge of a person, but facts that are peculiarly and exclusively known to him. The provision is designed to prevent failure of justice in exceptional situations where:

• The prosecution has proved circumstances pointing towards guilt; and
• Certain crucial links in the chain of events can be explained only by the accused.

If Section 109 were interpreted broadly, it would unjustly reverse the fundamental principle of criminal law by compelling the accused to prove innocence. Hence, courts apply this provision with caution and restraint.

6. Judicial Interpretation

• In Sidhartha Vashist @ Manu Sharma v. State (NCT of Delhi), the Supreme Court held that the whereabouts and possession of the weapon used in the offence were facts especially within the knowledge of the accused. His failure to give a proper explanation entitled the court to draw an adverse inference under Section 106 of the Indian Evidence Act (corresponding to Section 109 of BSA).
• In State of West Bengal v. Mir Mohammad Omar, the accused had abducted the deceased, and the victim was later found murdered. The Court held that once abduction was proved, the accused alone knew what happened to the deceased thereafter. Their failure to explain justified drawing an inference of guilt under Section 109.
• Conversely, in Manharan Rajwade v. State of Chhattisgarh, the Supreme Court cautioned that Section 109 cannot be invoked unless the prosecution first establishes the foundational facts, such as the theory of “last seen together”. Since the prosecution failed to do so, the burden could not be shifted to the accused, and he was acquitted.

7. Doctrine of Reverse Burden / Reverse Onus
Section 109 embodies the principle of reverse onus, where the burden temporarily shifts to the accused to explain certain facts. However:

• This shift occurs only after the prosecution has discharged its initial burden;
• The provision does not compel the accused to prove innocence;
• It merely calls upon the accused to explain facts within his exclusive knowledge.

Failure to offer a reasonable explanation may permit the court to draw an adverse inference, but conviction cannot rest solely on this presumption.

8. Conclusion
Section 109 of the Bharatiya Sakshya Adhiniyam 2023 strikes a careful balance between the rights of the accused and the interests of justice. While reaffirming the principle that the prosecution must prove guilt beyond reasonable doubt, it recognizes that certain facts can be proved only by the person who has special knowledge of them. Applied cautiously, this provision prevents concealment of truth and ensures that justice is not defeated by technical impossibilities of proof.