Section 105: Onus of Proof in Criminal Cases

Overview

Section 105 of the Bhartiya Sakshya Bill, 2023, fundamentally alters who needs to *prove* certain things in a criminal trial. Generally, the prosecution (the police or government) must prove the accused committed the crime. However, if the accused claims a specific reason why their actions weren’t criminal – like self-defense or being somewhere else at the time – *they* have to prove that reason is true. This section clearly states that the accused bears the burden of proving the facts necessary to support any 'general or special exception' they rely on.

Key Principles / Ingredients

• Type of Evidence: This section applies to all types of evidence – oral testimony (what witnesses say), documentary evidence (written documents), and electronic records. It also covers situations where a 'presumption' is being relied upon (where a fact is assumed to be true unless proven otherwise).
• Conditions for Admissibility/Relevancy: The evidence must be relevant to the exception being claimed. For example, if claiming self-defense, evidence of a threat received would be relevant. The evidence must also be admissible under the general rules of evidence (not illegally obtained, etc.).
• Burden of Proof Implications: Normally, the prosecution must prove *every* element of the crime 'beyond a reasonable doubt'. Section 105 shifts the burden to the accused to prove the *facts* supporting their exception. They don’t need to prove it beyond a reasonable doubt, but they must present enough evidence to make it *probable* that the exception applies.

How Courts Use this Provision

Judges use Section 105 to determine whether the accused has presented sufficient evidence to support their claim of an exception. The judge will assess the credibility of the evidence and determine if it creates a reasonable doubt about whether the accused committed the crime as alleged. If the accused fails to provide enough evidence, the court will proceed to consider the prosecution’s case without giving weight to the claimed exception.

Illustrations and Examples

• Example 1: A man is accused of assault. He claims he acted in self-defense. Section 105 means *he* must present evidence showing he was under a reasonable threat of harm, and his actions were necessary to protect himself. Simply saying “I was scared” isn’t enough; he needs evidence like witness testimony or medical records of injuries.
• Example 2: A woman is accused of stealing a valuable necklace. She claims she was mistaken about the necklace being hers – a 'mistake of fact'. Section 105 requires *her* to provide evidence supporting this mistake. This could include evidence of a similar necklace she owns, or testimony about a previous conversation where she was told the necklace was hers.

Important Provisos / Explanations

The Bhartiya Sakshya Bill, 2023 does not contain any specific provisos or explanations attached to Section 105. The section operates on the general principle that the accused must substantiate claims that negate the elements of the offense or provide a legal justification for their actions.

Difference from Old Evidence Act (if applicable)

The core principle remains consistent with the Indian Evidence Act, 1872. However, the Bhartiya Sakshya Bill, 2023 aims for greater clarity and simplification of language. The new Bill doesn’t fundamentally change the burden of proof, but it restates it in a more accessible manner.

Key Takeaways

• If you claim an exception (like self-defense), you must prove the facts supporting it.
• All types of evidence are relevant – testimony, documents, electronic records.
• The burden isn’t to prove your claim ‘beyond a reasonable doubt’, but to make it *probable*.
• The prosecution still proves the crime; you only prove the reason it *doesn’t* apply to you.