Section 105 Bharatiya Sakshya Adhiniyam, 2023: On whom burden of proof lies

Section 105 of Bharatiya Sakshya Adhiniyam, 2023: On whom burden of proof lies

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore, the burden of proof is on B.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Evidence Sec 2(1)(c) Fact Sec 2(1)(d) Proved Sec 2(1)(f)

Legal Commentary & Landmark Judgments: Section 105

Section 105 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, defining the dynamic on-the-record burden of proof (onus probandi).

Dynamic Onus Probandi: Unlike the legal burden of proof under Section 104 which remains stationary on the plaintiff/prosecution, the onus of proof under Section 105 shifts continuously.
Failure Test: Determined by asking: if neither party leads any evidence today, who loses? The burden rests on that party.
Civil & Criminal Interplay: In criminal cases, the initial burden rests on the prosecution; in civil cases, the burden shifts to the defendant once the plaintiff establishes a prima facie case.

Key Landmark Precedents:

Addagada Raghavamma v. Addagada Chenchamma (AIR 1964 SC 136): The Supreme Court formulated the classic distinction: the legal burden of proof (burden of establishing a case) is fixed by pleadings and never shifts; the onus of proof (burden of adducing evidence) shifts constantly as evidence is led.
Rangammal v. Kuppuswami (2011) 12 SCC 220: Reiterated that a plaintiff must stand on their own legs; they cannot succeed by relying on weaknesses in the defendant's case when the legal burden has not been discharged.

Courtroom Practice & Strategic Litigation Guidance:

In summary debt recovery trials, once you prove loan disbursement and the defendant's signature on a receipt, the onus shifts under Section 105 to the defendant to prove repayment or discharge. If the defendant leads no evidence, decree follows automatically.