Section 108 BSA: Burden of proving that case of accused comes within exceptions

Bharatiya Sakshya Adhiniyam, 2023

Section 108 BSA at a Glance

Section 108 BSA deals with burden of proving that case of accused comes within exceptions. It replaced Section 105 IEA on 1 July 2024.

Was IEA

Section 105 →

Section 108 BSA Bare Act Text

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.

Source: Section 108, Bharatiya Sakshya Adhiniyam, 2023

Section 108 BSA in Simple Words

Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, which applies from 1 July 2024, places the burden of proving a legal exception on the accused person. When someone is accused of an offence and claims that special facts bring the case under an exception, that accused person has to prove those facts.

The rule covers these kinds of exceptions. It applies to the chapter of General Exceptions under the Bharatiya Nyaya Sanhita, 2023. It also applies to a special exception or a proviso (a qualifying condition in a legal rule) found in another part of that Sanhita, or in any other law that defines the offence. Until the accused person proves that those facts existed, the court must presume (take as true at the start) that those facts were absent.

The illustrations in the Adhiniyam show how this works. An accused person on a murder charge who claims unsoundness of mind, or claims loss of self-control from grave and sudden provocation, must prove that claim. Similarly, someone facing a charge under section 117 of the Sanhita for voluntarily causing grievous hurt has to prove the facts that bring the act under sub-section (2) of section 122.

When Section 108 BSA Applies

  • Someone faces a criminal charge as a person accused of an offence.
  • The accused person claims that facts exist which bring the case under the General Exceptions of the Bharatiya Nyaya Sanhita, 2023.
  • Or the accused person relies on a special exception or a proviso in another part of that Sanhita, or in the law that defines the offence.
  • The accused person must prove those facts, and the court must presume that those facts did not exist until proved.

Example of Section 108 BSA

In 2025, Priya is on trial in a court in Jaipur as a person accused of an offence, and claims that special facts bring the act under a special exception in the Bharatiya Nyaya Sanhita, 2023. Under Section 108 BSA, the court must start by presuming that those special facts were absent. The prosecution does not have to begin by disproving that exception. Instead, Priya bears the burden of proving in the Jaipur court that the facts bringing the case under that special exception existed.

Section 108 BSA in the IEA (Previous Law)

Section 108 BSA replaces Section 105 IEA from the old criminal code.

Section 105 of the Indian Evidence Act, 1872 became Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. The references to the Indian Penal Code now point to the BNS.

FAQs on Section 108 BSA

What is Section 108 BSA?▼

Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 is the rule that places the burden of proving a legal exception on a person accused of an offence. It also requires the court to presume that the facts needed for that exception were absent until the accused person proves them.

Does Section 108 BSA apply to exceptions in laws outside the Bharatiya Nyaya Sanhita, 2023?▼

Yes. Section 108 BSA covers the General Exceptions and special exceptions or provisos in the Bharatiya Nyaya Sanhita, 2023, as well as any special exception or proviso in any other law that defines the offence.

Who has to prove the exception in sub-section (2) of section 122 when a person is charged under section 117 of the Bharatiya Nyaya Sanhita, 2023?▼

The accused person. As shown in the illustration to Section 108 BSA, a person charged with voluntarily causing grievous hurt under section 117 of the Sanhita has the burden of proving the facts that bring the case under sub-section (2) of section 122.

What is Section 108 BSA in IEA?▼

Section 105 IEA. Before 1 July 2024, Section 105 IEA contained the same rule, except that it referred to the Indian Penal Code instead of the Bharatiya Nyaya Sanhita, 2023.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·