Burden of Proof Under the BSA (Sections 104 to 109): Evidence Act 101 Mapping (2026)
Who has to prove what in a case, how the burden of proof and the onus shift, what Sections 104 to 109 of the Bharatiya Sakshya Adhiniyam, 2023 say, and how they map to Sections 101 to 106 of the old Evidence Act. Last verified October 2026.
Explainer · BSA · Evidence Law
Burden of proof is the duty to prove a fact or a case, and it decides who loses if a point is left unproved. It is now set out in Sections 104 to 109 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Sections 101 to 106 of the Indian Evidence Act, 1872 from 1 July 2024. These are rules of evidence, not offences, so they carry no punishment. Last verified October 2026.
- What it is: the burden of proof rules in Sections 104 to 109 of the BSA, 2023.
- Old law: they replaced Sections 101 to 106 of the Indian Evidence Act, 1872 (each moved up by three).
- Key point: the prosecution proves guilt; the onus on a particular fact can shift, and some facts within special knowledge fall on the person who knows them.
- No punishment: these are evidence rules, not offences, so they carry no punishment.
- Search and track: Claw finds burden of proof judgments and tracks live cases across 9,102 forums.
01What burden of proof means
Burden of proof answers a simple question: if a fact is not proved, who loses on it. The person who would fail if no evidence were given on a point carries the burden on that point.
Two ideas sit close together here. The burden of proof on the case as a whole, which in a criminal trial rests on the prosecution, and the onus of proof on a particular fact, which can shift from side to side as evidence comes in. Sections 104 to 109 of the BSA set out these rules.
Getting the burden right is often decisive. In a criminal case the prosecution must prove guilt beyond reasonable doubt, and the accused does not have to prove innocence. But on some facts, for example a matter that lies specially within one person’s knowledge, the law puts the burden on that person.
02The rules in Sections 104 to 109
The six sections build the picture step by step.
- Section 104: whoever wants a court to give judgment on a legal right or liability, depending on facts, must prove that those facts exist.
- Section 105: the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side.
- Section 106: the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.
- Section 107: when a person wants evidence of one fact to be admitted, the burden of proving the fact that makes it admissible lies on that person.
- Section 108: when a person is accused of an offence, the burden of proving that the case falls within a general or special exception lies on that person.
- Section 109: when a fact is especially within the knowledge of a person, the burden of proving that fact lies on that person.
In a criminal trial the prosecution carries the burden to prove guilt. The onus on a single fact may shift, but the main burden does not move to the accused.
Section 109 is the one people ask about most. If a fact is known only to one person, for example how an injury happened inside a locked house, that person may have to explain it.
03Sections 104 to 109 and old 101 to 106: the mapping
The burden of proof provisions were renumbered in the BSA, mostly without a change in substance. Each old section moved up by three numbers.
| Old law (Indian Evidence Act, 1872) | New law (BSA, 2023) | Subject |
|---|---|---|
| Section 101 | Section 104 | Burden of proof |
| Section 102 | Section 105 | On whom burden of proof lies |
| Section 103 | Section 106 | Burden of proof as to a particular fact |
| Section 104 | Section 107 | Burden of proving a fact to make evidence admissible |
| Section 105 | Section 108 | Burden of proving that a case is within an exception |
| Section 106 | Section 109 | Burden of proving a fact especially within knowledge |
If you are searching for "section 101 evidence act in bsa", the answer is Section 104. The scheme of the burden of proof is carried forward with new numbers.
04Is there a punishment? Is it cognizable or bailable?
Sections 104 to 109 do not create offences, so they carry no punishment. The words cognizable, bailable, and triable by do not apply to them. They are rules of evidence that allocate the duty to prove.
The offence being tried is charged under its own section in the Bharatiya Nyaya Sanhita, 2023. The burden of proof rules only decide who must prove which facts in that trial, and what happens if a fact is left unproved.
05What changed from the old law
For anyone trained on Sections 101 to 106, the change is a renumbering, not a rewrite.
- Same rules, new numbers. Each old section moved up by three, so Section 101 is now Section 104, and so on to Section 109.
- Criminal standard untouched. The prosecution still proves guilt, and the accused does not have to prove innocence.
- Settled case law still applies. Because the substance is carried forward, the judgments on burden and onus continue to guide the courts.
For the bigger picture, see our overview of the new criminal laws of 2024 and the key changes from the Evidence Act to the BSA. For a related topic, see the presumptions about documents.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Burden of proof arguments under Sections 104 to 109 run through almost every contested trial, and the courts keep refining when the onus shifts. This is where Claw helps. You can search 30 crore+ judgments across the Supreme Court and 25 High Courts to see how courts have read Sections 104 to 109 and the old Sections 101 to 106, and you can track live cases and orders across 9,102 courts, benches and forums, all by section, party or advocate name, with results in under 5 seconds.
Create a FREE Claw account to search and track cases under this section by party or advocate name. There is a free plan for individual advocates, with paid plans for teams. To go deeper, see the guide to case search across Indian courts.
07Sources and further reading
- India Code (official text of the Bharatiya Sakshya Adhiniyam, 2023): indiacode.nic.in
- Ministry of Home Affairs (the new criminal laws): mha.gov.in
- Supreme Court of India (judgments): sci.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The new criminal laws are still being interpreted by the courts, so check the current text of the BSA and take advice from counsel before you rely on a provision.
08Frequently asked questions
What is the burden of proof under the BSA?
Burden of proof is the duty to prove a fact or a case. Under the Bharatiya Sakshya Adhiniyam, 2023 it is set out in Sections 104 to 109, which say who must prove, on whom the burden lies, and how it applies to particular facts, exceptions and facts within special knowledge.
Which sections of the Evidence Act are Sections 104 to 109 of the BSA?
They correspond to Sections 101 to 106 of the Indian Evidence Act, 1872. Each old section moved up by three, so Section 101 is now Section 104 and Section 106 is now Section 109.
Does the accused have to prove innocence under the BSA?
No. In a criminal trial the prosecution must prove guilt beyond reasonable doubt. The accused does not have to prove innocence, though the burden on a particular fact, such as an exception or a fact within the accused’s special knowledge, can fall on the accused.
What is Section 109 of the BSA about?
Section 109 deals with facts especially within a person’s knowledge. When a fact is known only to one person, the burden of proving that fact lies on that person. It corresponds to Section 106 of the old Evidence Act.
What is the punishment under Sections 104 to 109 of the BSA?
There is none. These are rules of evidence, not offences, so they carry no punishment and the terms cognizable or bailable do not apply to them. The offence itself is charged under its own section in the Bharatiya Nyaya Sanhita, 2023.
How can I find judgments on burden of proof?
Claw lets you search 30 crore+ judgments across the Supreme Court and 25 High Courts by section, party or advocate, and track live cases across 9,102 forums, with results in under 5 seconds. You can create a free account to search and track cases under this section.