Following are the syllabus of Evidence Law-II for our upcoming IA-1

• BSA and changes brought by it.

• Burden of proof.
• Burden of proof and onus of proof.
• Sections 104-109 of BSA.

The Bharatiya Sakshya Adhiniyam (BSA) marks a significant evolution in the Indian legal
system, replacing the outdated Indian Evidence Act of 1872. This new law acknowledges the
fundamental shift in how evidence is presented in today’s technology-driven world.
One of the most crucial changes lies in the recognition of electronic evidence. Unlike the IEA,
which relegated such evidence to a secondary status, the BSA grants electronic records primary
evidence status. This reflects the reality that information stored or transmitted electronically
holds the same validity as traditional paper documents. Section 57 specifically emphasizes
this, ensuring that digital evidence carries the same weight in legal proceedings.
The BSA allows for the electronic presentation of even oral evidence, such as witness
testimonies conducted remotely. This advancement ensures that physical presence in court is
no longer a prerequisite for providing testimony, and digital records hold the same significance
as traditional in-person appearances. While the provided text mentions Section 24, it likely
focuses on refining existing procedures for joint trials rather than introducing a completely new
concept /.The BSA represents a crucial modernization of the Indian legal system, adapting to
the digital age by streamlining the use of electronic evidence and facilitating remote
participation in legal proceedings. This ensures a more efficient and adaptable legal framework
in a world increasingly reliant on technology.
1. Modernization and Language
i. IEA (1872): The IEA, being a 19th-century law, was written in a formal, old-fashioned
style, and some of its provisions became outdated due to technological advancements
and social changes.
ii. BSA (2023): The BSA uses more contemporary and simplified language, making it
easier for legal practitioners and the public to understand and apply. It also reflects
modern legal practices and technologies.
2. Inclusion of Digital and Electronic Evidence
i. IEA (1872): While the IEA did eventually recognize electronic evidence, it lacked
comprehensive provisions specific to the handling, preservation, and admissibility of
digital records.
ii. BSA (2023): The BSA explicitly includes detailed provisions for the admissibility and
evaluation of electronic and digital evidence, such as emails, digital contracts, and
social media communications, reflecting the increasing role of technology in society.

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3. Witness Protection
i. IEA (1872): The IEA had limited provisions for witness protection, focusing more on
the admissibility of evidence without addressing the safety and privacy concerns of
witnesses.
ii. BSA (2023): The BSA includes stronger provisions for witness protection, particularly
for vulnerable witnesses, allowing for anonymity, in-camera proceedings, and
testimony via video conferencing to protect their identity and safety.
4. Hearsay Evidence
i. IEA (1872): The IEA disallowed hearsay evidence in most circumstances but had
exceptions that were not always clearly defined, leading to some ambiguity.
ii. BSA (2023): The BSA reinforces the exclusion of hearsay evidence but clarifies the
exceptions where hearsay may be admissible, providing clearer guidelines for its
application.
5. Presumptions and Burden of Proof
i. IEA (1872): The IEA established various legal presumptions and rules regarding the
burden of proof, but some were seen as outdated or insufficient for modern legal
contexts.
ii. BSA (2023): The BSA updates these rules, introducing more specific presumptions
related to modern issues such as electronic records, and provides clearer guidance on
how the burden of proof should be handled in different legal scenarios.
6. Admissibility of Scientific and Forensic Evidence
i. IEA (1872): The IEA had basic provisions for the admissibility of scientific evidence
but did not comprehensively cover modern forensic techniques like DNA analysis or
digital forensics.
ii. BSA (2023): The BSA introduces specific provisions for the admissibility of scientific
and forensic evidence, ensuring that modern forensic methods, including DNA testing,
digital forensics, and expert testimony, are properly considered by the courts.
7. Privileged Communications
i. IEA (1872): The IEA recognized certain communications as privileged, such as those
between spouses and attorney-client communications, but the scope was limited.
ii. BSA (2023): The BSA expands on the concept of privileged communications, providing
clearer and more comprehensive guidelines on what constitutes privileged
communication, including more modern contexts such as digital communications
during legal consultations.

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8. Relevancy of Evidence
i. IEA (1872): The IEA laid out rules for the relevance of evidence, but some of these
were based on the social norms and legal practices of the 19th century.
ii. BSA (2023): The BSA refines the rules of relevancy to align with contemporary legal
needs, focusing on ensuring that only evidence directly related to the case at hand is
considered, reducing the admissibility of prejudicial or irrelevant evidence.
9. Simplification and Codification
i. IEA (1872): The IEA, while comprehensive, had complex provisions that could be
difficult to navigate, particularly for non-experts.
ii. BSA (2023): The BSA simplifies many of these provisions, codifying them in a more
logical and accessible manner, making it easier to apply the law in practice.
10. Focus on Speedy Justice
i. IEA (1872): The IEA did not specifically address issues related to delays in legal
proceedings.
ii. BSA (2023): The BSA incorporates provisions aimed at reducing delays in the judicial
process, including faster processing of electronic evidence and streamlined procedures
for the examination of witnesses.
Summary: The Bharatiya Sakshya Adhiniyam, 2023 is a significant update to India's
evidence law, bringing it in line with modern technological, social, and legal developments. It
offers clearer guidelines, modernizes the treatment of digital and forensic evidence, enhances
witness protection, and simplifies the application of the law, in contrast to the more dated and
complex provisions of the Indian Evidence Act, 1872.

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 BURDEN OF PROVE
Introduction
Every legal proceeding seeks to establish some sort of right or liability. These commitments
and rights are predicated on facts that must be convincingly established in court. Who must
submit the case’s evidence and persuade the court of its validity is specified in Sections 104 to
114. While Sections 104 to 106 discuss the duty of proof broadly, Sections 107 to 114 deal with
situations where the burden of proof falls on a specific party. These principles are referred
regarded as the “Burden of Proof” rules.
Meaning
The phrase “burden of proof” is not defined under the Indian Evidence Act. The legal duty or
obligation for the parties to establish the facts that will help the court rule in their favour,
however, is known as the burden of proof. The Burden of Proof refers to the responsibility in
litigation to establish a fact.
If the person on whom the burden is passed fails to provide any evidence, the issue must be
decided against him, according to the strict definition of the word “burden of proof” (onus
probandi). Chapter VII of the Bharatiya Sakshya Adhiniyam, addresses the burden of proof
requirements.
Burden of proof (section 104)
The “Burden of proof” is discussed in Section 104 of the Bharatiya Sakshya Adhiniyam, 2023.
According to this clause, a person must establish the existence of any facts he claims in order
for the court to rule on his legal rights or obligations based on such facts. The burden of proof
is stated to be on a person when they have a responsibility or obligation to establish a fact.
E.g.: If Ram is of the opinion that Shyam has committed a crime and that he must be punished
for the same, then it is upon him to prove that Shyam has committed the said crime.
On whom burden of proof lies (section 105)
Section 105 of the Bharatiya Sakshya Adhiniyam, 2023 speaks about, “On whom the burden
of proof lies”. Section 105 fixes the burden of proving the facts in any suit or proceeding on
that person who would fail in case no evidence is given on either side.
E.g.: Sunil has filed a case stating that the land which is in possession of Anil belongs to him.
Here, the burden of proof is on the one who will suffer if he/she does not prove the fact. Hence,
if Sunil does not prove that the land belongs to him then Anil will continue to have possession
of the land and Sunil will suffer by losing his land.
Burden of proving a particular fact (section 106)
The “Burden of proof as to particular fact” is discussed in Section 106 of the Bharatiya Sakshya
Adhiniyam, 2023. According to this clause, the burden of proof for a specific fact rests with
the party seeking the court’s belief in its existence unless the legislation expressly states that
the burden of proof rests with a certain party.

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Accordingly, this section states that the burden of proof is on the party asserting the affirmative
or negative of a certain fact, unless the evidence law or another applicable legislation expressly
states otherwise. This clause therefore states that the maker of an assertion must provide
evidence to support it.
The distinction between this section and Section 104 is that in Section 104, the person asserting
a truth has the burden of demonstrating whether it is positive or negative, affirmative or denial,
but in this section, the person asserting a fact has the burden of proving whether it is affirmative
or denial.
E.g: Chirag says that at the time of his neighbour’s murder, he was not at home and was at his
uncle’s place. In this case, it is upon Chirag to prove that he was at his uncle’s place.
In Kamini Sahuani v. Purna Chandra Sahoo, a married woman who was maltreated by her
in-laws and driven out of her matrimonial home filed a case for recovering her jewellery and
other articles. Her in-laws pleaded that she had already taken these articles away, the court held
that there cannot be any presumption that she has taken away any of her articles, and the burden
of proof would be upon the in-laws to prove that she has taken away her jewellery and other
articles.
Every person is required by Section 33 of the Criminal Procedure Code to report certain
offences that they are aware of or appear to have committed to the nearest police officer or
magistrate. If he fails to accomplish it, he is responsible for providing a justifiable explanation.
The Bharatiya Sakshya Adhiniyam second part, which reads, “if the law itself provides that the
burden of proof lies on any particular person,” applies in this instance. The burden of proof, in
this case, is with the party who failed to provide information to the nearest police officer or
magistrate as required by law (in this case, Section 33 of the CrPC).
Burden to prove to make evidence admissible (section 107)
The “Burden of proving fact to be proved to make evidence admissible” is mentioned in Section
107 of the Bharatiya Sakshya Adhiniyam, 2023. According to this provision, it is the
responsibility of the person who intends to provide evidence for the latter fact to establish the
earlier fact when it is required to do so in order for them to provide evidence for the latter fact.
Illustration: – A wishes to prove a dying declaration by B. A must prove B’s death. This
illustration says that the fact necessary to be proved is the dying declaration of B and the fact
necessary to prove the dying declaration is that B is dead. Mahboob Sab v. Union of India,
(2011) In this case, the Railways’ contention was that the person who died by falling from a
train was not a bonafide passenger being without a ticket, the court said that it was for the
Railways to prove that fact.
Burden to prove that the accused comes within exception (section 108)
Section 108 of t the Bharatiya Sakshya Adhiniyam, of 2023, speaks about the “Burden of
proving that the case of the accused comes within exceptions”.
The burden of establishing the existence of all circumstances bringing a case under any of these
exceptions shall be on the accused when, under this section, an accused relies in his defence on
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any of the Exceptions provided in the Bharatiya Nyaya Sanhita, 2023 or in any other statute
defining the offence. A presumption that such circumstances don’t exist will be made by the
court.
When making an exemption under Section 108, the level of proof required of the accused is far
lower than it would be for the prosecution in a comparable situation. It may not be necessary
for an accused person to present evidence to demonstrate their innocence. However, an accused
person alone has the burden of proving that his specific circumstances fall under an exception
to the said clause.
General presumption: According to the general premise, the accused is presumed innocent
unless proven guilty, and the burden of proof rests with the prosecution to do so. Once guilt
has been proven, the burden of proof shifts to the accused, who may then raise an BNS general
exceptions defence.
This overall burden is always on the prosecution, and it never changes. An essential exception
to this general rule is Section 108. The approach outlined in Section 106 is applied in this
section and even extended. The specific responsibility placed on the accused under Section 108
does not conflict with the general burden, which always falls on the prosecution and never
changes.
Burden to prove fact especially within knowledge (section 109)
The Bharatiya Sakshya Adhiniyam, 2023 mentions the “burden of proving a fact, especially
within knowledge” in Section 109. The exception to Section 104 is Section 109. According to
this provision, the onus of proof rests with the individual who, in particular, has knowledge of
the fact in question. It states that when a fact is specifically within the knowledge of a person,
that person is responsible for establishing that fact. The reasoning behind this Section is that
such a person is in a better position to show the reality, especially when it is within his
knowledge, and it is challenging or nearly impossible for the opposing side to do so..
Illustration: – The body of B was found in the house of A. The onus is upon A to establish that
even if the body of the deceased was recovered from his house, his involvement in the crime
is negligible. The inmates of the house are also required to provide an explanation. If the
defendant fails to provide a viable explanation and fails to establish his innocence, this would
form a chain of circumstantial evidence establishing the guilt of the accused.
Section 109 applies only to the parties to a suit or proceeding. It is designed to meet certain
exceptional cases in which it would be impossible or very difficult for the prosecution to
establish facts that are especially in the knowledge of the accused.
Ram Gulab Chaudhury v. State of Bihar (2001) In this case, a dead body was not found but
there was a clear witness by the eyewitness that the victim was killed by the accused before
they took away the body. No explanation was given by the accused as to the disappearance of
the dead body. The court said that it can convict the accused people by drawing the presumption
that the accused people had a reason to take away the dead body and the reason being that the
death was caused by them.

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 Differences between burden of proof and onus of proof
Scope of responsibility
• Burden of proof encompasses the entirety of the case, requiring the party to prove all
necessary facts and elements.
• Onus of proof, on the other hand, focuses on specific facts or assertions within the case
that require evidential support.
Allocation of responsibility
• The burden of proof lies upon the party who must prove a particular fact essential to
the case and it remains constant throughout the proceedings.
• Initially, the onus of proof lies with the party who would be unsuccessful if no evidence
were presented on either side. However, it can shift during the trial based on the
evidence presented by each party.
Legal codification
• The concept of burden of proof is explicitly outlined in Section 104 of the Bharatiya
Sakshya Adhiniyam, 2023, emphasizing its importance in legal proceedings.
• Similarly, the concept of onus of proof is codified in Section 105 of the Bharatiya
Sakshya Adhiniyam, 2023, highlighting its significance in evidentiary matters.
The key differences between the Burden of Proof and the Onus of Proof:

Aspect Burden of Proof Onus of Proof

Responsibility to prove the entire Responsibility to present evidence

Definition
case for specific facts or claims

Relates to the entirety of the case Pertains to specific facts or

Scope
being presented elements within the case

Lies on the party who must prove Initially on the party who would
Allocation
essential facts be unsuccessful without evidence

Remains constant throughout the Can shift based on evidence

Constancy
proceedings presented during the trial

Codified in Section 104 of the Codified in Section 105 of the

Legal
Bharatiya Sakshya Adhiniyam, Bharatiya Sakshya Adhiniyam,
Codification
2023 2023

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Landmark cases on between burden of proof and onus of proof
There exists a significant disparity between the concepts of burden of proof and onus of proof.
The burden of proof rests upon an individual tasked with substantiating a fact, a responsibility
that remains fixed and unyielding.
Conversely, the onus of proof is subject to shifting dynamics throughout the course of evidence
evaluation. This notion of shifting onus has been consistently observed in legal precedents such
as Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu),
highlighting the static nature of burden of proof in contrast to the dynamic nature of onus of
proof.
The term “burden of proof” encompasses two distinct interpretations: firstly, as a legal and
procedural obligation and secondly, as the responsibility of presenting evidence. Section 104
of the Bharatiya Sakshya Adhiniyam, 2023 addresses the former, while Section 105 deals with
the latter. The former remains consistent throughout legal proceedings, while the latter is
subject to alteration based on the evidence presented. This distinction is underscored in the case
of A. Raghavamma v. A. Chenchamma.
In civil cases, the onus rests upon the individual asserting a proposition or fact that is not
inherently evident. This principle was affirmed in the case of State Bank of India (Successor
to the Imperial Bank of India) v. Shyama Devi. Conversely, in criminal cases, the burden of
proving all essential elements to establish the charges against the accused lies squarely with
the prosecution and does not shift. This principle was upheld in the case of State of
Maharashtra v. Wasudeo Ramchandra Kaidalwar.
In essence, while the burden of proof remains constant and incumbent upon the party asserting
a legal right, the onus of proof is fluid, subject to change based on the presentation of evidence
and is often contingent upon the context of civil or criminal litigation.

Application in Legal Cases

Civil Cases:
In civil cases, the burden of proof typically lies on the plaintiff, who must prove their case by
a preponderance of the evidence. This means that the plaintiff must present enough evidence
to establish that it is more likely than not that their claims are true. However, the onus of proof
may shift to the defendant if they assert a counterclaim or raise certain defences.
Criminal Cases:
In criminal cases, the burden of proving the guilt of the accused beyond a reasonable doubt
rests solely on the prosecution. The accused is presumed innocent until proven guilty and they
are not required to prove their innocence. The onus of proof remains on the prosecution
throughout the trial and if they fail to meet this burden, the accused must be acquitted.

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