Burden of proof: exceptions, special knowledge and statutory shifts

1. Section 108: General Exceptions and special exceptions

Section 108 (old s.105) provides that when a person is accused of an offence, the burden of proving circumstances that bring the case within any of the General Exceptions in the Bharatiya Nyaya Sanhita, 2023 (sections 14 to 44 BNS), or within any special exception or proviso in the Sanhita or in the law defining the offence, is on him, and the Court shall presume the absence of such circumstances.

The illustrations: an accused who pleads unsoundness of mind (s.22 BNS) must prove it; an accused who pleads grave and sudden provocation (Exception 1 to s.101 BNS) must prove it; and an accused charged with grievous hurt under s.117 BNS who claims the benefit of provocation under s.122(2) must prove the circumstances.

2. The standard on the accused

The accused does not have to prove his exception beyond reasonable doubt. He discharges the burden by a preponderance of probability, as a party to a civil suit would. Even if he fails to prove the exception fully, the evidence he leads may still raise a reasonable doubt about an ingredient of the offence, and then he is entitled to acquittal.

• K.M. Nanavati v. State of Maharashtra, 1961 INSC 322, AIR 1962 SC 605. A naval officer shot his wife’s paramour and pleaded grave and sudden provocation. The Court held that under section 105 (now 108) the burden of proving the exception is on the accused and the Court must presume its absence. On the facts, the time that passed between the confession of the wife and the shooting, and the conduct of the accused in between, gave him time to cool down; the plea failed and the conviction for murder stood.
• Dahyabhai Chhaganbhai Thakker v. State of Gujarat, 1964 INSC 80, AIR 1964 SC 1563. A plea of insanity. The Court explained that the prosecution always has to prove the offence, including the mental element, beyond reasonable doubt; the accused’s burden under section 105 is no higher than that of a party in a civil case; and even where he does not establish insanity conclusively, evidence of his mental condition may raise a reasonable doubt about mens rea, which entitles him to acquittal.

3. Section 109: facts especially within knowledge

Section 109 (old s.106): when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (a): a person who does an act with an intention other than the one its character suggests must prove that intention. Illustration (b): a person charged with travelling on a railway without a ticket must prove that he had one.

The section does not relieve the prosecution of its primary burden. In Shambu Nath Mehra v. State of Ajmer, 1956 INSC 15, AIR 1956 SC 404, the accused was charged with cheating the Government by claiming travelling allowance for journeys he had not made. The Court held that section 106 applies only to facts pre-eminently or exceptionally within the accused’s knowledge, which it would be impossible or disproportionately difficult for the prosecution to establish. Where the fact could as easily be proved by the prosecution (here, from railway records), the section cannot be used to make up for a gap in the prosecution case.

The section matters most in deaths inside the home. In Trimukh Maroti Kirkan v. State of Maharashtra, 2006 INSC 691, (2006) 10 SCC 681, the wife died in the matrimonial home at night. The Court held that where an offence takes place inside the privacy of a house, the inmates must give a cogent explanation of how it happened; the prosecution must still lead evidence of the surrounding circumstances, but if the husband gives no explanation or a false one, that is a strong circumstance against him.

4. Sections 110 and 111: alive or dead

• Section 110 (old s.107): if a man is shown to have been alive within thirty years, the burden of proving he is dead is on the person who affirms it.
• Section 111 (old s.108): if he has not been heard of for seven years by those who would naturally have heard of him if he were alive, the burden of proving he is alive shifts to the person who affirms it.

The seven-year presumption is only of the fact of death, not of its date. In L.I.C. of India v. Anuradha, 2004 INSC 215, (2004) 10 SCC 131, an insured man disappeared and the premiums were not paid. The Court held that there is no presumption that he died on the date he disappeared or soon after. The only presumption is that he is dead when the question arises; the time of death must be proved by evidence, and the burden of proving it lies on the person who asserts a particular date (here, the claimant who said he died while the policy was in force).

5. Sections 112 to 114: relationship, ownership, good faith

• Section 112 (old s.109): once persons are shown to have been acting as partners, landlord and tenant, or principal and agent, the burden of proving that they are not, or have ceased to be, in that relationship is on the person who affirms it.
• Section 113 (old s.110): a person shown to be in possession is presumed the owner; the burden of proving he is not the owner is on the person who says so. Possession is good title against all but the true owner.
• Section 114 (old s.111): where one party stands in a position of active confidence towards the other, the burden of proving the good faith of a transaction between them is on the party in that position. The illustrations are a sale by a client to his advocate and a sale by a son just come of age to his father. The rule fits with undue influence under section 16 of the Indian Contract Act, 1872.

6. Section 115: certain offences in disturbed areas

Section 115 (old s.111A) applies where a person is accused of waging war or related offences (sections 147 to 150 BNS, or conspiracy, attempt or abetment of offences under sections 149 and 150) in an area declared disturbed, or where there has been extensive disturbance of the peace for more than a month. If he is shown to have been at a place from which firearms or explosives were used to attack the armed forces or the forces maintaining public order, the Court shall presume, unless the contrary is shown, that he committed the offence. It is a true reverse burden, confined to a narrow situation.

7. Problems

(a) A is charged with travelling in a train without a ticket. He denies the charge. On whom does the burden of proof lie?

Issue. Whether the prosecution must prove that A had no ticket, or A must prove that he had one. Law. Section 109 and its illustration (b); Shambu Nath Mehra. Application. The prosecution must first prove that A travelled on the train, which is its primary burden under section 104. Whether he bought a ticket, and where it is, is a fact especially within his knowledge; the railway cannot be expected to prove a negative for every passenger. Conclusion. Once travel is proved, the burden of proving that he had a ticket (by producing it or showing he bought one) is on A.

(b) A is accused of B’s murder. He pleads that grave and sudden provocation by B deprived him of self-control. On whom is the burden?

Issue. Who must prove the exception. Law. Section 108 and illustration (b); Exception 1 to s.101 BNS; Nanavati; Dahyabhai. Application. The prosecution must prove that A caused B’s death with the intention or knowledge required for murder. Provocation is a special exception, so the Court presumes its absence and A must prove it. He need only show it on a preponderance of probability: that the provocation was grave, sudden, that he was actually deprived of self-control, and that he acted before there was time to cool. Conclusion. The burden is on A. If he discharges it, the offence is culpable homicide not amounting to murder, punishable under section 105 BNS.

How this is examined

The ticketless traveller is set almost every year (January 2026, June 2025). The provocation problem was set in June 2025 (Law of Evidence). In the long answer on burden of proof, give one paragraph each to sections 108, 109 and 110 to 114 after the general rules. A short note on “facts especially within knowledge” should cite Shambu Nath Mehra for the limit and Trimukh Maroti Kirkan for the use of the section in deaths at home.