Section 108 Bharatiya Sakshya Adhiniyam, 2023: Burden of proving that case of accused comes within exceptions

Section 108 of Bharatiya Sakshya Adhiniyam, 2023: Burden of proving that case of accused comes within exceptions

Official Bare Act Text

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

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.

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

Court Sec 2(1)(a)

Legal Commentary & Landmark Judgments: Section 108

Section 108 regulates the burden of proving that the case of an accused comes within any General Exception or special proviso under the penal code.

Core Legal Standard: Section 108 (formerly Section 105 IEA) dictates that 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, or within any special exception or proviso, is upon the accused.
Operational Application: Under Section 108 of the BSA, when a person is accused of an offence, the burden of proving circumstances bringing the case within general exceptions lies on the accused, and the Court shall presume the absence of such circumstances.

Section 108 places the initial burden of proving general exceptions or special provisos firmly on the accused, requiring proof on a preponderance of probabilities.

Key Landmark Precedents:

K.M. Nanavati v. State of Maharashtra (1962) Supp (1) SCR 567: A Constitution Bench held that while the legal burden under Section 105 rests on the accused to plead exceptions, if evidence creates a reasonable doubt in the mind of the court regarding mens rea, the accused is entitled to acquittal.
Vijayee Singh v. State of U.P. (1990) 3 SCC 190: Clarified the standard of proof required from an accused pleading private defence: proof on preponderance of probabilities suffices.

Legal Commentary:

Section 108 shifts the evidential burden when an accused claims insanity, private defence, or grave and sudden provocation. The court presumes sanity and absence of justification until the accused produces medical or circumstantial evidence demonstrating the exception on balance of probabilities.