§ SECTION 108 · BSA 2023 · CHAPTER VII — BURDEN OF PROOF

Burden of proving that case of accused comes within exceptions

The exception that reverses the onus. When an accused claims a defence within a General Exception of the BNS 2023 — or a special exception or proviso — the burden of proving those circumstances is on him, and the court presumes they were absent.

How to read Section 108

Accused pleads an exception → he must prove its circumstances → the court presumes they were absent.

The setting

A person is accused of an offence and pleads a defence within an exception.

The onus

The burden of proving those exception-circumstances is on the accused.

The presumption

The court shall presume such circumstances were absent — until he proves them.

The bare Act

The section in its own words — the rule and three illustrations.

Section 108 · verbatim

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.

In short: the ordinary rule is that the prosecution proves the offence. This section carves out one situation and turns the onus round. When the accused says his case falls within a defence — a General Exception of the BNS 2023 (such as unsoundness of mind or private defence), or a special exception or proviso written into a particular offence — it is for him to prove the circumstances that bring him within it. And to begin with, the court does not assume the defence: it shall presume that those circumstances were absent, leaving it to the accused to displace that presumption.

→ This carries forward IEA 1872 § 105 — the accused’s burden to bring his case within an exception.

Glossary

General Exceptions

The BNS 2023 defences — such as unsoundness of mind, private defence or accident — that excuse or justify.

special exception or proviso

A carve-out written into the definition of a particular offence.

circumstances bringing the case within

The facts that make a defence or exception apply.

is upon him

The accused, not the prosecution, must prove them.

shall presume the absence

The court starts by assuming the exception does not apply.

grave and sudden provocation

An example — a partial exception the accused must establish.

The picture

The prosecution proves the offence — but the defence within an exception is the accused’s to prove.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe three illustrations

the ruleThe defence within an exception is the accused’s to prove — and is presumed absent

In one lineWhen an accused claims his case falls within a General Exception or a special exception/proviso, the burden of proving those circumstances is on him, and the court shall presume they were absent.

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,the exception is the accused’s to provethe facts that bring his case within any General Exception, or a special exception/proviso, are for him to prove.

and the Court shall presume the absence of such circumstances.→ the court starts by presuming they were absentthe court does not assume the defence — it presumes the exception’s circumstances were absent until shown.

ExampleAn accused who pleads private defence must establish the facts of that defence; the court does not assume it for him — it starts from the presumption that it did not exist.

✗ Not thisThis does not shift the burden of the offence itself — the prosecution still proves the crime. Only the exception-circumstances are the accused’s to prove.

the three illustrationsInsanity · provocation · a special proviso — each on A

In one line(a) unsoundness of mind, (b) grave and sudden provocation, and (c) a special proviso under BNS § 122(2) — in each, the accused A carries the burden.

(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.(a) insanity — a General ExceptionA pleads he did not know the act’s nature through unsoundness of mind — A must prove it.

(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.(b) provocation — a partial exceptionA pleads grave and sudden provocation that cost him self-control — A must prove it.

(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.(c) a special proviso within the offence§ 117 excepts the § 122(2) case — A, charged under § 117, must prove his case falls within § 122(2).

ExampleIn (a) A pleads he did not know the nature of the act by unsoundness of mind — a General Exception. It is A who must place that before the court and prove it.

✗ Not thisThe accused need not prove it to the same height as the prosecution proves guilt — but he must establish the exception’s circumstances. If he leads nothing, the presumed absence stands.

Connected provisions

§ 104

IEA 1872, § 105

Carried forward — the accused’s burden to bring his case within an exception.

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