Burden of proving that case of accused comes within exceptions
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 deals with burden of proving that case of accused comes within exceptions. 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 any other part of the said Sanhita, or in any law defining The Act came into force on 01 Jul 2024.
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 any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations.
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.
(c) Section 117 of the Bharatiya Nyaya Sanhita, 2023 provides that whoever, except in the case provided for by sub-section (2) of section 122, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 117. The burden of proving the circumstances bringing the case under sub-section (2) of section 122 lies on A.
Section 108, The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023).
Replaces a provision of the Indian Evidence Act
IEA 105 Burden of proving that case of accused comes within exceptions Text carried over almost unchanged 95%
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 The repealed enactment still governs what happened while it was in force.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.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
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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Elavarasan v. State represented by Inspector of Police
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
Judgment of Main Case order-7.pdf 2011-07-05. Crl A 1250/2006. Sirpurkar/Thakur. Filename-reuse verify warning; body is the named 5 July 2011 reportable. IEA 105: the accused who claims a general exception (IPC 84 insanity) must prove the circumstances bringing the case within the exception, though only on a preponderance of probabilities (Dahyabhai). The plea was neither proved nor probabilised. Map iea 105 + BSA 108 successor. Do not pad IPC 84 (already filled) or 302/304.
On this section: Successor of IEA 105 (mapping.csv near-identical, score 0.9497). The exceptions-burden holding carries to BSA 108.
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Prakash Nayi @ Sen vs The State of Goa Home Department Secretary
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an accused raises a plea of insanity under Section 84 of the Indian Penal Code, the test to be applied is legal insanity, not medical insanity. Legal insanity requires incapacity to know the nature of the act or that it is wrong or contrary to law. The burden on the accused is to establish this on preponderance of probabilities, not beyond reasonable doubt. The crucial point of time is the moment of commission of the offense. Evidence of conduct before, during, and after the offense, combined with medical evidence of mental disorder, is relevant in determining legal insanity. If credible medical evidence establishes mental disorder at the time of the offense, and the accused subsequently becomes fit to stand trial, this is indicative of prior insanity. The trial court and appellate court must apply a preponderance of probabilities standard and not reject the insanity defense merely because the nature of the act appears intentional or because some witnesses did not observe abnormality.
On this section: Burden of proving that case of accused comes within exceptions. The Court held that while this section places burden on the accused, in the context of Section 84 IPC, the standard is preponderance of probabilities, not beyond reasonable doubt.
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Paul vs The State of Kerala
Decided under Indian Evidence Act 105, 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 when accused relies on exceptions; court held that accused must prove exceptions by preponderance of probability, but prosecution burden remains unchanged
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Gopal vs State of Rajasthan
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The right of private defence is available only so long as there is reasonable apprehension of death or grievous hurt from the person against whom the defence is exercised. Once the threat ceases, such as when the other party flees the scene, the right of private defence also ceases. Chasing and beating a fleeing person constitutes an excess of the right of private defence and renders the accused liable for causing death or injury to that fleeing person. The burden on an accused to establish the plea of self-defence is to show preponderance of probabilities in favour of the plea, not proof beyond reasonable doubt. This burden can be discharged by reference to circumstances from the prosecution evidence itself.
On this section: Establishes that burden of proof is on the accused setting up plea of self-defence
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Surender Singh vs State (NCT Of Delhi)
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When an accused pleads self-defence under Section 105 of the Indian Evidence Act, the burden of proof lies on the accused to establish the plea by credible evidence. The burden, though not as onerous as beyond reasonable doubt, requires some degree of reasonable satisfaction. In the absence of credible evidence supporting the plea of self-defence, the court shall presume the absence of such circumstances. Similarly, the plea of grave and sudden provocation under Exception 1 to Section 300 IPC requires that the provocation be such as would temporarily deprive a reasonable person of self-control. The test is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked as to lose self-control. The fatal blow should be clearly traced to the influence of passion arising from provocation and not after passion had cooled down. In the present case, the overwhelming eyewitness testimony of four police personnel, corroborated by forensic evidence, establishes that the appellant deliberately and intentionally killed the deceased out of jealousy and motive, not in self-defence or under grave provocation. Therefore, the conviction for murder under Section 302 IPC is upheld.
On this section: Burden of proof on accused - the court held that the burden of proving self-defence lies on the accused, and this burden, though not as onerous as beyond reasonable doubt, requires some degree of reasonable satisfaction
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Ram Pat vs State of Harayana
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
A purchaser of an undivided share in joint family property does not acquire any right to possession of the land; his only right is to sue for partition. Therefore, the accused persons, being purchasers of undivided shares, could not claim to be in 'settled possession' of the disputed agricultural land. The four essential attributes of settled possession as established in Puran Singh (actual physical possession over sufficiently long period, possession to knowledge of owner with animus possidendi, complete and final dispossession acquiesced in by owner, and for culturable land, growing of crop) must be read conjunctively. Since the accused did not satisfy these attributes and were wholly armed aggressors while the deceased party was not armed (except with a non-dangerous Kamari), they had no right of private defence and were therefore guilty of murder.
On this section: Discussed regarding burden of proof on accused claiming right of private defence under Section 105 of Indian Evidence Act.
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Hanumantappa Bhimappa Dalavai vs State of Karnataka
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The right of private defence cannot be claimed by a person who deliberately retrieves a weapon from his premises and then assaults the visitors; such conduct bears the stamp of design to kill and falls outside the purview of private defence as defined in Sections 96-106 of the Indian Penal Code. The absence of injury on the accused persons, combined with credible eye-witness testimony of the victims, the deliberate fetching of a weapon, and the coordinated nature of the assault, establishes that the appellants were aggressors, not defenders, and the burden on the accused to establish self-defence by preponderance of probabilities was not discharged. Consequently, the conviction for murder under Section 302 IPC and grievous hurt under Section 326 IPC is upheld.
On this section: Burden of proof regarding the plea of private defence rests on the accused; the accused must establish the plea by preponderance of probabilities.
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Ravishwar Manjhi vs State of Jharkhand
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When injuries are found on the person of the accused in a case where a plea of private defense is raised, the prosecution must explain these injuries. If the prosecution fails to adequately explain the injuries on the accused and the circumstances suggest a probable case of self-defense, the accused is entitled to acquittal. The right of private defense need not be specifically pleaded; courts may act upon such conclusion based on materials placed on record by the prosecution itself. In cases involving armed conflict where both parties sustained injuries, the court must examine whether the accused were aggressors or acted in self-defense, considering the genesis of the occurrence and the nature of injuries. Procedural defects in investigation, including failure to produce crucial evidence like station diary and non-examination of Investigating Officer, combined with temporal inconsistencies and delayed witness statements, can vitiate the prosecution case and entitle the accused to acquittal.
On this section: Casts burden of proof on accused who sets up plea of self defense
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Ravishwar Manjhi vs State of Jharkhand
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When in a criminal case involving violent confrontation both parties are armed with deadly weapons and sustain injuries, uniform murder convictions under Section 302 IPC cannot be sustained against all accused. If material on record creates reasonable probability that accused exercised right of private defence against apprehended death or grievous hurt, the accused is entitled to acquittal even without express plea, provided the right was not exercised after danger ceased. The prosecution must prove initial aggression and must explain injuries on accused persons when self-defence is a probable scenario. Courts must evaluate all circumstances pragmatically without hyper-technical approach and cannot reject defence merely because accused failed to prove it, but must assess whether it was probable given the materials on record.
On this section: Casts burden of proof on accused claiming self-defence but does not require positive evidence, can be proved through prosecution materials
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Vijay @ Vijayakumar vs State Represented By Inspector Of Police
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
While the Supreme Court upheld the conviction of the appellant under Section 304 Part 1 IPC for culpable homicide not amounting to murder, it held that the sentence imposed by the trial court and affirmed by the high court should be reduced to the period already undergone by the appellant. The Court reasoned that although Exception 1 of Section 300 IPC regarding grave and sudden provocation may not have been fully established, the act was not premeditated or planned, the appellant had no weapon in advance, and the ends of justice would be met by reducing the sentence to time already served.
On this section: Burden of proof on the accused when pleading exceptions to criminal liability
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Shivanna vs State of Karnataka
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
The right of private defence is a defensive right that cannot be invoked by the aggressor or after the reasonable apprehension of danger has ceased. The burden of establishing this right is on the accused, who must show preponderance of probabilities. The mere fact that injuries were sustained by the accused does not establish self-defence if the evidence clearly shows they were the aggressors. The number of injuries and non-explanation thereof by the prosecution are relevant but not conclusive factors. When prosecutorial evidence is clear, cogent, independent and credible, it can outweigh the unexplained injuries. The right must be examined pragmatically in its proper setting, considering the imminence of threat, the injuries sustained, and whether the accused had time to resort to public authorities, but it cannot be used as a pretext for vindictive or retributive assault.
On this section: Establishes burden of proof on accused setting up plea of self-defence; applied to hold appellants must prove their plea on preponderance of probabilities
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Bingi Kanakaiah vs The State of Andhra Pradesh Rep.by Its Public Prosecutor
Decided under Indian Evidence Act 105, which this section replaces. The court did not have this Act before it.
Court's Decision & Legal Precedent
When a moving vehicle collides with a stationary vehicle from behind, and multiple credible witnesses consistently testify that the accident was caused by rash and negligent driving of the moving vehicle, the driver cannot escape criminal liability by merely suggesting an alternative narrative (such as swerving to avoid another vehicle) without providing cogent and convincing evidence or testifying under Section 313 Cr.P.C. The burden of establishing the defense of inevitable accident under Section 81 IPC lies on the accused, and failure to discharge this burden results in conviction for causing death by negligence under Section 304-A IPC.
On this section: Burden of proof in certain cases - Court held that the burden of establishing the defense under Section 81 IPC lies upon the accused
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.
Questions about Section 108
What have the courts held on Section 108 of the Bharatiya Sakshya Adhiniyam?
Elavarasan v. State represented by Inspector of Police (05 Jul 2011) is the leading judgment on this section among those set out below, though it was decided under IEA 105, which this section replaced -- the court never mentioned this Act: Successor of IEA 105 (mapping.csv near-identical, score 0.9497). The exceptions-burden holding carries to BSA 108. Another 11 judgments on this section are set out below, 11 of them from the Supreme Court. They run from 2006 to 2023.
How do I find court cases under Section 108 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 108, section 108 BSA, section 108 of the Bharatiya Sakshya Adhiniyam. People searching for it also type 108 bsa tower. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 12 reported judgments on this section are set out on this page, beginning with Elavarasan v. State represented by Inspector of Police (05 Jul 2011).
What should I read with Section 108 of the Bharatiya Sakshya Adhiniyam, and has it changed?
Its own text turns on Bharatiya Nyaya Sanhita 117 (Voluntarily causing grievous hurt), section 117 (Presumption as to abetment of suicide by a married woman), section 122 (Estoppel of tenant and of licensee of person in possession), so none of them can safely be read on its own. It carries forward IEA 105 (Burden of proving that case of accused comes within exceptions), so the judgments decided under that provision are the case law on this one.
When did Section 108 of the Bharatiya Sakshya Adhiniyam come into force?
Section 108 of the Bharatiya Sakshya Adhiniyam, cited as BSA 108, 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 14 Oct 2026. This page is not a substitute for legal advice.