Burden of proof
Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 deals with burden of proof. 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, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The Act came into force on 01 Jul 2024.
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, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations.
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
Section 104, The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023).
Replaces a provision of the Indian Evidence Act
IEA 101 Burden of proof Text carried over almost unchanged 100%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Anil Rishi v. Gurbaksh Singh
Decided under Indian Evidence Act 101, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Judgment of Main Case order-2.pdf 2006-05-02. CA 2006. IEA 101: he who asserts a fact must prove it; the legal burden does not shift merely because the defendant has some evidence. Map iea 101 and successor bsa 104.
On this section: Successor of IEA 101 (mapping.csv near-identical). Burden-of-proof teaching carries to BSA 104.
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M. Vijayakumar vs The State of Tamil Nadu
Decided under Indian Evidence Act 101, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
To sustain a conviction under Section 306 IPC for abetment of suicide, the prosecution must establish: (1) that the victim committed suicide, (2) that the accused abetted the commission of suicide through a positive act of instigation or aiding, (3) that the accused possessed clear mens rea (guilty mind) with the intention to push the deceased into such a position that he/she committed suicide, and (4) that there was an active or direct act by the accused that led the deceased to commit suicide seeing no option. In the absence of evidence establishing these elements, particularly the mens rea and active act, conviction cannot be sustained. Furthermore, Section 106 of the Evidence Act cannot be invoked to shift the burden of proof from the prosecution to the accused unless the prosecution has first established a prima facie case.
On this section: General burden of proof - casts the burden on the party substantially asserting the affirmative of the issue. The Court held that the prosecution bears the burden to prove the offence.
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Paul vs The State of Kerala
Decided under Indian Evidence Act 101, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an act amounts to culpable homicide and falls within any of the four clauses of Section 300 IPC, and the accused fails to establish that the case falls within any of the five exceptions enumerated in Section 300 IPC, the offence constitutes murder punishable under Section 302 IPC. The burden on the accused to prove exceptions is by preponderance of probability, but the prosecution burden to prove the offence beyond reasonable doubt never shifts. An accused cannot escape the consequences of an act attracting the ingredients of murder by merely pointing to Section 304 IPC. The fact that a false case is set up by the accused does not deprive him of the right to establish that the case falls within exceptions to murder, but such exceptions must be supported by evidence on record. In cases of throttling resulting in death, the presence of injuries on the neck and other parts of the body, combined with the absence of credible explanation from the accused regarding what transpired in the privacy of the bedroom, establishes murder beyond reasonable doubt.
On this section: Burden of proof; court reiterated that prosecution must prove the offence beyond reasonable doubt
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Sher Singh @ Partapa vs State of Haryana
Decided under Indian Evidence Act 101, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
In prosecutions under Section 304B IPC for dowry death, the prosecution must prove beyond preponderance of evidence that: (i) the death of a woman occurred in abnormal circumstances caused by burns or bodily injury, (ii) within seven years of her marriage, and (iii) that she was subjected to cruelty or harassment by her husband or relative connected with a demand for dowry, with the cruelty/harassment maintaining a live link or causal connection to the death (not being stale or aberration of past). Only after prosecution establishes these three core elements does the burden shift to the husband or relative to disprove guilt beyond reasonable doubt. The word 'shown' in Section 304B must be interpreted as 'prove' (using preponderance standard), and the deeming provision operates after such proof, not before. Until prosecution discharges this foundational burden, the accused's presumption of innocence is not displaced, and the burden of proof does not shift to the defense.
On this section: General burden of proof provision. Court referenced this to establish that once prosecution shows basic facts under Section 304B, the burden shifts to the accused under the Evidence Act framework.
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State of West Bengal vs Prafulla Churan Law
Decided under Indian Evidence Act 101, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a government invokes the exceptional power under Section 17(4) of the Land Acquisition Act to dispense with public inquiry under Section 5-A on grounds of urgency, the government bears the burden of proving by material evidence that genuine urgency exists and that the mind of the authority has been properly applied to the urgency question. The mere fact that a court has set a timeline for completion of acquisition proceedings does not automatically justify invocation of Section 17(4), especially where there is an unexplained gap of years between earlier failed acquisition attempts and the subsequent notification. The nature of public purpose (industrial and residential development) does not inherently indicate urgency. When the government fails to demonstrate exceptional circumstances warranting elimination of public inquiry rights, the acquisition proceedings are vitiated and quashing is justified. Administrative convenience and adherence to self-imposed or court-imposed timelines cannot override the fundamental procedural right of landowners to be heard before deprivation of property.
On this section: Burden of proof principles applied to establish conditions precedent for exercise of administrative power under Section 17
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… But in order to substantiate the above contention, there is no valid proof submitted on the side of the Page No.26 of 31 appellant/ Promoter, where the appellant has paid two times GST before the Competent Authority for the very same apartment. As per the provisions of Section 104 of the Bharatiya Sakshya Adhiniyam , the burden of proof lies on the party who asserts the existence of any fact. This means that if a party claims that a certain fact is true, it is their responsibility to provide evidence supporting that claim. In the present case on hand, it is for the appellant/ Promoter to …
Questions about Section 104
What have the courts held on Section 104 of the Bharatiya Sakshya Adhiniyam?
Anil Rishi v. Gurbaksh Singh (02 May 2006) is the leading judgment on this section among those set out below, though it was decided under IEA 101, which this section replaced -- the court never mentioned this Act: Successor of IEA 101 (mapping.csv near-identical). Burden-of-proof teaching carries to BSA 104. Another 4 judgments on this section are set out below, all of them from the Supreme Court. They run from 2006 to 2024.
How do I find court cases under Section 104 of the Bharatiya Sakshya Adhiniyam?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: BSA 104, section 104 BSA, section 104 of the Bharatiya Sakshya Adhiniyam. People searching for it also type bsa 104 75 sm and 104 bsa act. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 5 reported judgments on this section are set out on this page, beginning with Anil Rishi v. Gurbaksh Singh (02 May 2006).
What should I read with Section 104 of the Bharatiya Sakshya Adhiniyam, and has it changed?
It carries forward IEA 101 (Burden of proof), so the judgments decided under that provision are the case law on this one.
When did Section 104 of the Bharatiya Sakshya Adhiniyam come into force?
Section 104 of the Bharatiya Sakshya Adhiniyam, cited as BSA 104, came into force on 01 Jul 2024, having been enacted on 25 Dec 2023. It is in force as at the date shown on this page.
Other sections of this Act
- 26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1128 words
- 12. Facts showing existence of state of mind, or of body or bodily feeling1076 words
- 95. Exclusion of evidence of oral agreement815 words
- 2. Definitions794 words
- 6. Motive, preparation and previous or subsequent conduct773 words
- 63. Admissibility of electronic records764 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 15 Oct 2026. This page is not a substitute for legal advice.