Bharatiya Sakshya Adhiniyam, 2023
Section 108
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 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.
Why this exists
This rule continues the long-standing principle from Section 105 of the old Indian Evidence Act, 1872. Criminal law generally requires the prosecution to prove guilt beyond reasonable doubt, including that no general exception applies. But practically, only the accused usually has personal knowledge of facts like his own mental state, provocation, or private circumstances of self-defence. So lawmakers shifted the burden for these specific defensive claims onto the accused, while the prosecution still must prove the basic elements of the crime itself.
How courts read it
Under the predecessor provision (Section 105, Evidence Act, 1872), the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (1964) held that the accused's burden to prove an exception like insanity is not as heavy as the prosecution's burden to prove guilt — it only needs to be established by a 'preponderance of probability,' similar to a civil case, not beyond reasonable doubt. Courts have also clarified that even if the accused fails to fully prove an exception, if the material on record (including the prosecution's own evidence) raises a reasonable doubt about guilt, the accused is still entitled to acquittal — the provision does not lower the overall standard of proof for conviction.
Common misconceptions
- Myth: The accused must prove his excuse 'beyond reasonable doubt,' just like the prosecution proves guilt.
Fact: Courts have clarified (following the old Section 105 case law) that the accused only needs to show the excuse is more likely true than not — a lighter 'preponderance of probability' standard, not the strict criminal standard. - Myth: If the accused fails to prove the exception, he is automatically convicted.
Fact: Even if the accused doesn't fully prove the exception, the court must still acquit if the overall evidence — including the prosecution's own evidence — leaves a reasonable doubt about guilt.