Section 104 BSA: Burden of Proof

Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 explains who must prove the facts on which a legal claim depends.

Introduction

The burden of proof under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is a fundamental principle of evidence law that determines which party must establish the facts necessary to obtain a favourable judgment. It prevents courts from deciding claims solely on the basis of allegations and requires the party asserting a fact to prove it, subject to applicable statutory rules and exceptions.

Section 104 BSA lays down the general rule governing the burden of proof. It corresponds to Section 101 of the Indian Evidence Act, 1872, which was the governing provision before the BSA came into force on 1 July 2024.

Section 104 of the Bharatiya Sakshya Adhiniyam, 2023: Bare Act

104. Burden of proof.— Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustrations.

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.

Meaning of Burden of Proof Under Section 104 BSA

The burden of proof refers to the legal obligation to establish the existence of facts necessary to support a claim, defence or allegation. The party who asks the court to recognise a legal right or impose a legal liability must ordinarily prove the facts on which that request is based.

For example, if A files a suit claiming that B owes ₹50,000 under a loan agreement, A must establish the facts supporting the claim, such as the loan transaction and the amount due. Merely stating that B owes the money does not establish the claim.

Similarly, if a person accuses another person of committing a crime, the prosecution must prove the ingredients of the alleged offence in accordance with the applicable criminal law and the required standard of proof.

Section 104 establishes the general principle that assertions must be proved when they form the basis of the legal relief sought. The precise allocation of the burden may, however, be affected by other provisions of the BSA, statutory presumptions and special laws.

Essential Elements of Section 104 BSA

The following are the main elements of Section 104:

Element	Explanation
Claim to a legal right or liability	The party seeks a judicial decision recognising a right or imposing a liability.
Assertion of facts	The party relies on particular facts to support the claim.
Obligation to prove	The party must establish the existence of the facts on which the claim depends.
Legal consequence	The court evaluates the evidence to determine whether the relevant facts have been proved.

The section provides the basic rule for identifying the party responsible for proving a fact. It must be read with the other provisions of Chapter VII of the BSA, which address how the burden operates in different situations.

Examples of Burden of Proof Under Section 104

1. Claim for recovery of money

A files a civil suit against B, alleging that B borrowed ₹1,00,000 and failed to repay it.

A must prove the facts supporting the claim, which may include the loan transaction, the amount advanced and the obligation to repay. B’s denial does not automatically require B to disprove A’s entire case.

2. Dispute over ownership of property

A claims that a particular plot of land belongs to A because A inherited it from a parent. B disputes the claim and remains in possession of the land.

Also Read: Section 54 BSA: Proof of Facts by Oral Evidence

A must establish the facts supporting the asserted title and entitlement to the relief sought. The court will assess the relevant documents, testimony and other admissible evidence.

3. Criminal accusation

A alleges that B committed theft. Under illustration (a) to Section 104, the person seeking punishment must establish that B committed the alleged crime.

In an ordinary criminal prosecution, the prosecution must prove the accused’s guilt beyond reasonable doubt, subject to applicable legal principles. Section 104 does not, by itself, determine every rule governing criminal proceedings or reverse burdens created by specific statutes.

Difference Between Burden of Proof and Onus of Proof

The expressions burden of proof and onus of proof are closely related but are not always used in the same sense.

The burden of proof generally refers to the legal obligation to establish a proposition necessary for a claim or defence. The onus of proof concerns the evidential responsibility to establish a fact at a particular stage of the proceedings. The onus may shift as evidence is presented, while the legal burden ordinarily remains with the party on whom the law places it, unless a specific rule provides otherwise.

Basis	Burden of proof	Onus of proof
Meaning	Legal obligation to establish a proposition	Evidential responsibility at a particular stage
Nature	Generally determined by law	May change as evidence is presented
Function	Identifies who must establish the necessary facts	Determines who must respond to the evidence or establish a fact at that stage
Relevant provisions	Section 104 BSA, read with related provisions	Section 105 BSA is particularly relevant to deciding who would fail if no evidence were given

This distinction is important because a party may discharge its initial burden by producing sufficient evidence to establish a prima facie case. The opposing party may then need to produce evidence in response. That shift in the evidential onus does not necessarily transfer the underlying legal burden.

Important Case Laws on Burden of Proof

The following Supreme Court decisions interpreting the predecessor provision, Section 101 of the Indian Evidence Act, 1872, remain relevant to understanding the general principle embodied in Section 104 BSA. They are predecessor-law authorities, not judgments specifically interpreting the newly numbered BSA provision.

1. Anil Rishi v. Gurbaksh Singh (2006)

Citation: (2006) 5 SCC 558

In Anil Rishi v. Gurbaksh Singh, the Supreme Court examined the allocation of the burden of proof in civil proceedings, including allegations concerning fraud, undue influence and fiduciary relationships.

The Court explained that the initial burden ordinarily rests on the party asserting the affirmative of an issue. It also distinguished the burden of proof from the onus of proof, observing that the onus may shift as the evidence develops.

The decision reinforces the principle that pleadings alone do not constitute proof. A party cannot ordinarily establish a disputed factual allegation merely by asserting it in the pleadings.

Relevance to Section 104 BSA: The judgment helps explain why the party seeking a legal finding based on an asserted fact must ordinarily prove that fact, subject to applicable exceptions.

2. R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple (2003)

Citation: (2003) 8 SCC 752

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, the Supreme Court considered principles concerning the burden of proof and the assessment of evidence in a civil dispute involving a claim to possession.

The Court discussed the distinction between the burden of proof and the evidential onus. In a suit for possession based on title, the plaintiff must establish the title and legal entitlement necessary to obtain possession. The evidential position may change as the parties produce evidence.

Relevance to Section 104 BSA: The decision illustrates the importance of proving the facts that establish a claimed legal right rather than relying on the weakness of the opposing party’s case alone.

Also Read: Section 11 of Bharatiya Sakshya Adhiniyam, 2023: Facts Relevant When Right or Custom Is in Question

Relationship Between Section 104 and Section 105 BSA

Section 104 establishes the general rule that a person asserting facts necessary for a legal right or liability must prove those facts.

Section 105, titled On whom burden of proof lies, addresses the related question of which party would fail if neither side produced any evidence.

Although the provisions are closely connected, they serve different purposes:

• Section 104: Identifies the general obligation to prove asserted facts.
• Section 105: Helps determine which party bears the burden in a suit or proceeding by considering who would fail if no evidence were given on either side.

For instance, where a plaintiff seeks recovery of money from a defendant, Section 104 requires the plaintiff to prove the facts supporting the claim. Section 105 provides a further rule for determining which party would lose if the proceedings contained no evidence at all.

Does Section 104 BSA Apply to Criminal Cases?

Yes. Section 104 contains a general rule concerning the burden of proof, and its own illustration (a) addresses a criminal accusation. It states that a person seeking the punishment of another must prove that the accused committed the crime.

In an ordinary criminal prosecution, the prosecution bears the burden of proving the essential ingredients of the offence beyond reasonable doubt. However, specific statutory provisions may create presumptions or place a defined evidential burden on the accused in particular circumstances.

Section 104 should therefore be read alongside the relevant provisions governing criminal responsibility, statutory presumptions and exceptions. It should not be interpreted as eliminating the prosecution’s general burden in a criminal trial.

Difference Between Section 104 BSA and Section 101 of the Indian Evidence Act, 1872

Section 104 BSA corresponds to Section 101 of the Indian Evidence Act, 1872.

Basis	Section 104 BSA	Section 101 Indian Evidence Act
Legislation	Bharatiya Sakshya Adhiniyam, 2023	Indian Evidence Act, 1872
Subject	Burden of proof	Burden of proof
General principle	A person asserting facts necessary for a legal right or liability must prove them	Substantially the same principle
Current relevance	Applicable under the BSA from 1 July 2024, subject to transitional rules	Relevant to matters governed by the earlier legislation and applicable transitional provisions

The core principle has been retained, with the provision renumbered under the BSA. Section 104 BSA must not be confused with Section 104 of the former Indian Evidence Act, which dealt with the burden of proving facts necessary to make evidence admissible. That subject is now addressed under Section 107 BSA.

Key Takeaways for Law Students

• Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the general rule of burden of proof.
• It corresponds to Section 101 of the Indian Evidence Act, 1872.
• A person seeking a judgment based on asserted facts must ordinarily prove those facts.
• Allegations and pleadings are not, by themselves, proof of disputed facts.
• The burden of proof is distinct from the onus of proof, which may shift during proceedings.
• Section 105 BSA complements Section 104 by identifying who would fail if no evidence were produced by either side.
• The prosecution ordinarily bears the burden of proving guilt beyond reasonable doubt in a criminal trial, subject to applicable statutory rules.
• Anil Rishi v. Gurbaksh Singh and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple are useful predecessor-law authorities for understanding the principles of burden and onus of proof.

Frequently Asked Questions (FAQs)

1. What is Section 104 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 104 BSA deals with the burden of proof. It provides that a person seeking a court judgment concerning a legal right or liability based on facts asserted by that person must prove those facts.

2. What is the difference between Section 104 and Section 105 BSA?

Section 104 establishes the general obligation to prove asserted facts. Section 105 determines on whom the burden lies by considering which party would fail if no evidence were produced on either side.

3. Which section of the Indian Evidence Act corresponds to Section 104 BSA?

Section 104 BSA corresponds to Section 101 of the Indian Evidence Act, 1872.

4. Who has the burden of proof in a civil case?

Ordinarily, the party asserting the facts necessary to establish a claim must prove them. The precise allocation depends on the issues, applicable statutory provisions, presumptions and the nature of the relief sought.

5. Does the burden of proof shift during a trial?

The evidential onus may shift as evidence is produced. However, the underlying legal burden generally remains with the party on whom the law places it, subject to specific statutory rules and exceptions.

6. Which case explains the distinction between burden of proof and onus of proof?

Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, is a useful Supreme Court authority explaining this distinction under the predecessor Indian Evidence Act.

Conclusion

Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 establishes the foundational principle that a party seeking judicial relief based on particular facts must ordinarily prove those facts. The provision promotes fairness in civil and criminal proceedings by requiring factual allegations to be supported by evidence rather than accepted merely because they have been asserted.

For law students, understanding Section 104 alongside Section 105 BSA is essential because the provisions explain both the general obligation to prove facts and the determination of which party bears the burden in a proceeding. Supreme Court decisions interpreting Section 101 of the former Indian Evidence Act continue to provide useful guidance when applied consistently with the current statutory framework.