Sections 105 and 106 of the Indian Evidence Act 1872: Burden of Proof

Sections 105 and 106 formed part of Chapter VII of the Indian Evidence Act, 1872, dealing with the burden of proof. This article explains the legal position under the Indian Evidence Act, 1872 immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force.

Legal period covered: The discussion below concerns the Indian Evidence Act, 1872 as applicable before 1 July 2024. It uses the terminology of the Indian Penal Code, 1860 and the Evidence Act applicable during that period.

Section 105 - Burden of proving that the accused comes within an exception

Meaning: Section 105 placed the burden on an accused person who relied upon circumstances bringing the case within a General Exception in the Indian Penal Code, 1860, a special exception or proviso in that Code, or an exception or proviso in another law defining the offence. The Court was required to presume the absence of such circumstances unless they were established in accordance with law.

Statutory rule in substance: Where a person accused of an offence claims the benefit of a General Exception, special exception or proviso, the burden of proving the circumstances supporting that exception rests upon the accused, and the Court starts with a presumption that those circumstances are absent.

Illustrations to Section 105

  1. If an accused charged with murder pleads that unsoundness of mind prevented him from knowing the nature of the act, the burden of proving the circumstances supporting that plea is on the accused.
  2. If an accused charged with murder pleads grave and sudden provocation resulting in loss of self-control, the burden of proving the circumstances supporting the exception is on the accused.
  3. Under the illustration referring to Sections 325 and 335 of the Indian Penal Code, 1860, a person charged with voluntarily causing grievous hurt under Section 325 who seeks the benefit of the circumstances covered by Section 335 bears the burden of proving those circumstances.

Section 106 - Burden of proving fact especially within knowledge

Meaning: Section 106 provided that when a fact was especially within the knowledge of a person, the burden of proving that fact was upon that person. The provision addressed facts for which the relevant knowledge was particularly or specially possessed by one person.

Statutory rule in substance: A person who has special knowledge of a particular fact bears the burden of proving that fact.

Illustrations to Section 106

  1. Where a person performs an act with an intention different from what the character and circumstances of the act ordinarily suggest, the burden of proving that different intention lies on that person.
  2. If a person is charged with travelling on a railway without a ticket, the burden of proving that the person had a ticket lies on that person.

Difference between Sections 105 and 106

Section 105 specifically concerned an accused who invoked an exception or proviso applicable to an alleged offence.

Section 106 applied more generally where a particular fact was especially within a person's knowledge.

Both provisions dealt with specific burdens of proof and operated within the broader scheme of Sections 101 to 104 of the Indian Evidence Act, 1872.

Context within the law of burden of proof

Sections 101 and 102 laid down the general rules concerning who bears the burden of proof. Sections 103 and 104 dealt with the burden as to a particular fact and the burden of proving a fact necessary to make evidence admissible. Sections 105 and 106 then addressed two specific situations: reliance by an accused on an exception, and facts especially within a person's knowledge.

This page explains the pre-1 July 2024 position under the Indian Evidence Act, 1872 and is intended as general legal information.