Code: Section 108 Bharatiya Sakshya Adhiniyam, 2023
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.
Explanation of Section 108 BSA
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a key rule in criminal trials regarding the burden of proof when an accused relies on an exception to the general rule of guilt.
While the prosecution bears the burden of proving guilt beyond a reasonable doubt, if the accused claims that his actions fall under a legal exception (such as self-defense, insanity, provocation, or other defenses provided in the Bharatiya Nyaya Sanhita, 2023), then it is the accused who must prove the existence of those circumstances.
The law also presumes that such exceptional circumstances do not exist unless proven by the accused.
Key Principles:
- The prosecution must prove the offense.
- The accused must prove any defense based on legal exceptions.
- Courts presume that no exception applies unless proven.
Illustrations
(a) A is accused of murder but claims he was of unsound mind at the time.
→ He must prove his mental condition to claim the benefit of the general exception of insanity under the Bharatiya Nyaya Sanhita.
(b) A is accused of murder but says he was provoked and lost self-control.
→ A must establish the claim of grave and sudden provocation to potentially reduce the charge or sentence.
(c) A is charged under Section 117 of the Bharatiya Nyaya Sanhita for voluntarily causing grievous hurt. He claims his case falls under an exception in Section 122(2).
→ A must prove that the circumstances of his act fall under the exception provided in that section.
These examples clarify how the burden of proving an exception lies squarely on the accused.
Common Questions and Answers on Section 108 BSA
- What are “General Exceptions” in this context?
- General Exceptions are legal defenses found in the Bharatiya Nyaya Sanhita, 2023 (e.g., unsoundness of mind, mistake of fact, self-defense) that may absolve a person of criminal liability if proven.
- Does the prosecution need to disprove exceptions?
- No. The prosecution must prove the offense. It is the accused who must prove the exception if they wish to rely on one.
- What kind of proof is required from the accused?
- The accused must provide sufficient evidence to make the court reasonably believe that the exception applies. The standard is not “beyond reasonable doubt” but typically “preponderance of probabilities.”
- Can the court presume that no exception applies?
- Yes. Section 108 makes it clear that the court shall presume the absence of such circumstances unless the accused proves otherwise.
- How does this section interact with Sections 104–107 BSA?
- Section 108 is a specific application of the general burden of proof rules under Sections 104–107, particularly in the context of criminal defenses.
Conclusion
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 plays a pivotal role in criminal trials. While the state bears the responsibility to prove guilt, the accused must prove any legal exception that could justify or excuse their actions. This ensures a balanced judicial process where claims of special defense are not accepted without proper evidence.
Understanding who bears the burden of proof is critical in both prosecution and defense strategies.
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