Introduction

Section 106 of the Indian Evidence Act, 1872, and Section 109 of the Bharatiya Sakshya Adhiniyam, 2023, deal with one important evidentiary rule. They govern who must prove facts that lie especially within a person’s knowledge. These provisions shift the burden of proof from the party making the allegation to the person who exclusively knows the fact. The law adopts this approach to ensure fairness in trials and to prevent misuse of hidden or private information.

When Parliament replaced the Indian Evidence Act with the Bharatiya Sakshya Adhiniyam, it retained this principle without change. Section 109 of the BSA reproduces Section 106 of the Evidence Act word for word. The legal intent, scope, and interpretation remain the same. The new law does not introduce any substantive alteration.

Why Does the Law Shift the Burden of Proof in Special Knowledge Cases?

The general rule of evidence requires the party who asserts a fact to prove it. Sections 101 to 103 of the Indian Evidence Act, and Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam, reflect this principle. However, this rule can become unjust in situations where one party alone possesses the relevant information.

Section 106 of the Evidence Act and Section 109 of the BSA create an exception. When a fact lies especially within the knowledge of a person, that person must prove it. The law assumes that such facts are either impossible or extremely difficult for the opposite party to establish. This rule ensures procedural fairness and balances evidentiary disadvantages.

The provision does not relieve the opposing party of its initial burden entirely. It only shifts the evidentiary burden once a foundational case exists.

What Does “Fact Especially Within Knowledge” Actually Mean?

The phrase “especially within knowledge” does not include facts that are merely difficult to prove. It applies only to facts that are exclusively or peculiarly known to a particular person. These facts cannot ordinarily be accessed by others through reasonable diligence.

Courts consistently clarify that “special knowledge” is not equivalent to general knowledge or shared information. For example, the internal intention behind a person’s action, the contents of a private transaction, or the circumstances occurring in exclusive custody fall within this category. The doctrine prevents a party from withholding crucial information while forcing the opponent to prove the impossible.

How Do Courts Apply This Rule in Criminal Cases?

In criminal law, courts apply Section 106 of the Evidence Act and Section 109 of the BSA with caution. The prosecution must first establish a prima facie case. The law does not allow the prosecution to rely on Section 106 to fill gaps in its own evidence.

Once the prosecution proves foundational facts, the burden shifts to the accused for facts exclusively within their knowledge. Common examples include custodial deaths, unexplained presence at a crime scene, or knowledge of how a specific incident occurred inside a private space.

Courts emphasize that this burden is not absolute. The accused need only provide a plausible explanation. The law does not compel proof beyond reasonable doubt from the accused. The standard remains one of reasonable probability.

How Does the Rule Operate in Civil Disputes?

Section 106 of the Evidence Act and Section 109 of the BSA apply equally to civil cases. In civil disputes, courts often invoke this rule where one party controls critical information. Family property matters offer a classic illustration.

When a Karta alienates joint family property, the burden lies on the Karta to prove legal necessity. This fact exists especially within the Karta’s knowledge. Similarly, in contractual disputes, internal arrangements or private dealings may trigger the application of this rule.

Civil courts use this provision to ensure transparency and prevent abuse of dominant informational positions.

Do the Illustrations Under Both Laws Remain the Same?

Yes. The illustrations under Section 106 of the Indian Evidence Act and Section 109 of the Bharatiya Sakshya Adhiniyam are identical. One illustration involves a person performing an act with an unusual intention. The law requires that person to prove the intention. Another illustration concerns a railway passenger accused of traveling without a ticket. The passenger must prove possession of a valid ticket.

These illustrations reinforce the idea that proof follows access to knowledge. The legislature deliberately retained them under the new law to maintain interpretative continuity.

Is There Any Difference Between Section 106 IEA and Section 109 BSA?

There is no difference at all. Section 109 of the Bharatiya Sakshya Adhiniyam is a verbatim reproduction of Section 106 of the Indian Evidence Act. The wording, illustrations, legal effect, and judicial interpretation remain unchanged.

The replacement of the Evidence Act by the Bharatiya Sakshya Adhiniyam does not affect this doctrine. Courts will continue to rely on precedents developed under Section 106 of the Evidence Act while applying Section 109 of the BSA. The continuity ensures stability in evidentiary law.

Conclusion

Section 106 of the Evidence Act and Section 109 of the Bharatiya Sakshya Adhiniyam play a crucial role in modern litigation. They prevent strategic silence. They discourage suppression of facts. They ensure that justice does not fail due to informational imbalance.

As Indian courts increasingly deal with complex disputes, this principle remains vital. The unchanged re-enactment under the BSA confirms the legislature’s confidence in its enduring relevance.