Burden of Proof under Bharatiya Sakshya Adhiniyam, 2023

🔶 1. Introduction

• In any legal proceeding—civil or criminal—proving facts is essential to secure justice.
• The party bringing a claim or defence must establish the truth of their assertions.
• This responsibility is known as the Burden of Proof.
• The Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023), which replaces the Indian Evidence Act, 1872, retains and refines this foundational concept.
• The new legislation modernizes legal language and adapts provisions to suit modern realities, especially concerning digital evidence and logical reasoning in trials.

🔷 2. Meaning and Definition of Burden of Proof

📌 What is Burden of Proof?

• The burden of proof refers to the obligation of a party to prove the truth of their claim or defence.
• It answers the question: “Who must prove what, and to what extent?”

📌 Two Types of Burden of Proof:

1. Legal Burden (Primary burden):
   – The obligation to prove a fact in issue.
   – Remains fixed on the party who asserts or initiates the claim.
2. Evidential Burden (Secondary burden):
   – The duty to introduce enough evidence to raise an issue.
   – This may shift during a trial depending on the nature of the defences or presumptions raised.

📌 Definition under BSA 2023 (Section 104):

“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.”

➡️ In short: If you claim something in court, you must prove it.

🟩 3. Key Provisions under Bharatiya Sakshya Adhiniyam, 2023

The concept is primarily addressed through Sections 104 to 109:

Section	Title	Explanation
104	Burden of Proof	The party asserting a fact must prove it.
105	On whom burden lies	The burden lies on the person who would fail if no evidence is produced.
108	Burden to prove exceptions	If the accused claims exceptions (like self-defence), the burden lies on them.
109	Specific cases and presumptions	Deals with shifting burden in special scenarios, like possession of stolen goods or facts within personal knowledge.

✅ These sections help decide the outcome of cases where factual disputes arise.

🟦 4. On Whom the Burden of Proof Lies

✳️ A. In Civil Cases

• General rule: Plaintiff has the burden to prove their claim.
• If the plaintiff fails to prove their case, even if the defendant doesn’t respond, the plaintiff loses.

📝 Example:
If A sues B for trespassing, A must prove:
a) The land belongs to A
b) B entered it without permission

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✳️ B. In Criminal Cases

• The Prosecution must prove that:
  1. A crime was committed
  2. The accused is guilty
• The standard is beyond reasonable doubt.

📝 Example:
In a murder case, the state must prove:

• That the victim died due to homicide
• That the accused caused the death intentionally

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✳️ C. Burden to Prove Exceptions (Section 108)

• If the accused raises a legal exception or special defence, the burden lies on them to prove it on a balance of probabilities.

📝 Example:
If the accused claims insanity, grave and sudden provocation, or private defence, they must bring evidence.

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✳️ D. Presumptions and Reversed Burden

• In certain situations, the law presumes guilt or fact, shifting the burden to the accused.

📝 Examples:

• Section 109: If a person is found in possession of stolen goods, it’s presumed they are the thief unless proved otherwise.
• Digital records: There is a presumption that electronic records certified under law are valid unless challenged.

🟨 5. Practical Importance in Legal Proceedings

• The burden of proof can decide the outcome of a case before full evidence is even presented.
• Understanding when the burden shifts is crucial for drafting pleadings and presenting evidence.

🧠 Important Concepts to Understand:

• He who asserts must prove
• Burden may shift but legal burden remains
• Standard of proof varies:
  • Civil: Preponderance of probability
  • Criminal: Beyond reasonable doubt

🟪 6. Comparison: BSA 2023 vs Indian Evidence Act, 1872

Aspect	Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023
Language	Archaic, colonial	Modern, simplified
Structure	Unorganized in parts	More systematic and logical
Digital Evidence	Less emphasis	Stronger integration
Section Numbers	Different (e.g., S. 101–104)	Changed (e.g., S. 104–107)

➡️ Essence remains the same, but the new Act improves clarity, accessibility, and relevance.

🔴 7. Conclusion

• The Burden of Proof is a cornerstone of fair trial principles in both civil and criminal justice.
• Under the Bharatiya Sakshya Adhiniyam, 2023, the principles have been retained with better clarity and structure.
• Law students and professionals must understand:
  • Who bears the burden,
  • When it shifts,
  • What standard must be met.
• The updated law ensures India’s evidence system is modern, technology-compliant, and logically organized for future challenges.

🟢 8. Frequently asked questions in the Examination

• Explain the term Burden of Proof on whom Burden of Proof lie?
• Discuss in detail Burden of Proof under Bharatiya Sakshya Adhiniyam 2023 / Indian Evidence act 1872.
• Write the Principles of Burden of Proof enumerate under Indian Evidence Act 1872.
• Discuss general concept of Burden of Proof along with general and special exceptions.
• Discuss provisions of Burden of Proof under Indian Evidence Act 1872.
• Write the detailed easy on Burden of Proof under Indian Evidence Act 1872.