Section 108 BSA 2023: Burden of Proving That the Accused Comes Within an Exception
Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 deals with the burden placed on an accused who relies on a General Exception under the Bharatiya Nyaya Sanhita, 2023, a special exception or proviso in that Sanhita, or an exception contained in another law defining the offence.
What Section 108 Provides
Section 108 - Burden of proving that case of accused comes within exceptions.
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.
Meaning and Scope of Section 108
The prosecution ordinarily bears the burden of proving the ingredients of the offence charged. Section 108 addresses a different question: where the accused relies upon facts that would bring the case within a statutory exception, the burden of proving the existence of those exceptional circumstances lies on the accused.
The provision applies to General Exceptions under the Bharatiya Nyaya Sanhita, 2023 as well as to a special exception or proviso appearing elsewhere in that Sanhita or in another law defining the offence. Until circumstances supporting the exception are shown, the Court is directed to presume their absence.
Key point: Section 108 concerns proof of circumstances supporting an exception. It does not rewrite the ingredients of the offence or the prosecution's obligation to establish the charge in accordance with law.
Illustrations Under Section 108
- 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, 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.
- 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.
How Section 108 Fits Within the BSA Burden-of-Proof Provisions
Section 108 forms part of the BSA provisions dealing with burden of proof. It follows Section 107, which concerns facts that must be proved to make other evidence admissible, and it precedes Section 109, which addresses facts especially within a person's knowledge.
- Section 104 states the general rule on burden of proof.
- Section 105 identifies the person on whom the burden lies in a suit or proceeding.
- Section 106 deals with the burden of proof as to a particular fact.
- Section 107 concerns proof of a foundational fact needed to make evidence admissible.
- Section 108 places the burden on an accused relying on specified exceptions.
- Section 109 concerns facts especially within a person's knowledge.
Effective Date of the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 is Act No. 47 of 2023. The Central Government appointed 1 July 2024 as the date on which the provisions of the Adhiniyam came into force.
For the official statutory text, see the India Code portal. The commencement notification is also available from the Ministry of Home Affairs.