Under the BSA, the burden of proof sits on the party who would lose if neither side led evidence, and it stays there all trial. The onus of proof is the duty to answer, and it crosses over each time a fact is proved.
Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 puts the burden on whoever asserts the facts a judgment would depend on. Section 105 states the sharper test, which is that the burden of proof lies on the person who would fail if no evidence at all were given on either side. Chapter VII runs from Section 104 to Section 120, and across those seventeen sections the word “onus” does not appear once.
In August 2026, in Shivappa v. Shantavva, the Supreme Court set aside a High Court order remanding a partition suit, holding that a remand under Order 41 Rule 23 of the Code of Civil Procedure is not a matter of course where the parties have already adduced oral and documentary evidence “in accordance with the burden and onus of proof fastened on them”. Both terms appear in that line, describing two allocations rather than one.
The gap between the two allocations shows up fastest in a suit where only one fact is genuinely disputed. A lender sues on a signed acknowledgment of debt. The borrower admits the signature and pleads that he repaid the whole amount in cash, so repayment is the only contested question on the record.
Proving the signature and the acknowledgment discharges the lender’s first task, and the onus of making out repayment then crosses to the borrower. If the borrower cannot make it out, the suit is decreed, because the lender’s case stands proved and the answering duty went undischarged. Reverse the first step and the result changes: where execution itself is left doubtful, the lender loses even if the repayment story is equally weak, because the burden Section 105 fastened on the lender at the pleading stage never travelled anywhere.
Burden of proof under Sections 104 and 105 before evidence begins
The burden of proof is settled by the pleadings, before a single witness enters the box, and it stays where it lands. Section 104 fixes it by assertion, providing that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The section then defines the expression itself: when a person is bound to prove the existence of any fact, the burden of proof lies on that person.
Section 105 supplies the test a court actually applies, which is that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Its two illustrations show the allocation running in opposite directions. Where A sues B for land on the strength of a will, B would keep possession on an empty record, so the burden is on A. Where A sues on a bond that B admits executing but says was obtained by fraud, A would succeed on an empty record, so the burden on the fraud plea sits on B.
The allocation is therefore built out of the pleadings, which is why it is settled before evidence begins. A court reads what each side has asserted, identifies the facts in issue from which the asserted right or liability necessarily follows, and asks who would lose if the trial produced nothing at all. A party that misreads this will lead its evidence in the wrong order and close its case with a gap in it.
Four questions settle the whole matter, and a court asks them in order:
- Which party would fail if no evidence at all were given on either side, because Section 105 fastens the burden of proof there.
- Whether that party has proved enough to make its version highly probable, because the answering duty crosses over only then.
- Whether a presumption has relocated the starting point instead, without either party proving anything.
- Whether the allocation still decides anything now that both sides have closed their evidence.
What the Adhiniyam does not say about onus of proof
The Adhiniyam never uses the word “onus”. Chapter VII carries seventeen sections on the burden of proof, and the term that much of the case law on the subject turns on appears in none of them. The word “shifted” appears exactly once in the entire Act, in Section 111, where the burden of proving that a man not heard of for seven years is alive “is shifted to the person who affirms it”.
The distinction is judicial construction laid over that silence. The Supreme Court supplied it in Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136, a suit turning on an alleged adoption and a claimed partition. The Court held that there is an essential distinction between burden of proof and onus of proof, and that the burden of proof lies upon the person who has to prove a fact and never shifts. The onus of proof does shift, and that shifting is a continuous process in the evaluation of evidence.
The 2023 re-enactment left all of this untouched. Chapter VII renumbered the burden provisions of the Indian Evidence Act, 1872 without rewriting them, so Section 101 became Section 104 and Section 106 became Section 109. Every judgment on the old numbering still governs, which is why a decision from 1963 remains the controlling authority on a statute that came into force on 1 July 2024.
Onus of proof while the evidence is being recorded
The onus of proof moves the moment one side has led enough to make its version the more probable one, and it can move back before the same witness has left the box. Nothing about the pleadings changes when it does. What changes is which party now has something to answer.
The two allocations answer different questions, which is why they behave differently. The burden asks who loses on an empty record, and a court asks that question once. The onus asks who has to speak next, and a trial court asks it continuously, as each document is exhibited and each witness is cross-examined.
The Supreme Court set the sequence out in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558, a suit in which a sale deed was alleged to be forged. The Court held that a distinction exists between the burden of proof and the onus of proof, and that the initial onus is always on the plaintiff. Only where the plaintiff discharges it and makes out a case entitling him to relief does the onus shift to the defendant. The Court also declined to treat the defendant’s possession of the disputed document as a shifting event by itself, because a shift of that kind needs a proved fiduciary relationship and a position of active confidence, not custody of a paper.
When the onus of proof moves because a party has earned it
A party earns the shift by creating a high degree of probability in its favour, not by leading some evidence and stopping. The Tripura High Court stated the threshold in Md. Akbor Ullah v. Md. Rahamat Ullah, 2022 LiveLaw (Tri) 34, holding that once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus.
That case ran on documents. The plaintiff produced an allotment order and the revenue records for the suit land, and the defendant led nothing that displaced either. The court treated the proved allotment and the entries together as enough to make the plaintiff’s version the more probable one, and the defendant’s failure to answer decided the appeal.
Two consequences follow for anyone conducting a trial. Evidence that raises a possibility moves nothing, because a court weighing an unproved assertion against silence still has an unproved assertion in front of it. The shift is also measured against the particular fact in dispute rather than against the case as a whole, so a party can have discharged the onus on execution while it is still answering on consideration.
The expensive error is to read an opponent’s silence as proof. A defendant who leads no evidence has failed to discharge an onus, and that is not the same thing as the plaintiff having established the fact. Where the plaintiff’s own material never crossed the threshold, no onus ever arrived for the defendant to discharge, and the burden simply reasserts itself against the plaintiff.
So the working rule at trial is to prove the fact you would lose without, prove it first, and prove it to the point where a court could decide in your favour on that material alone. What the other side then does with the onus is a separate question, and it cannot repair a case that never crossed the threshold.
When a presumption moves the onus of proof without anyone earning it
A presumption moves the onus by operation of law, so the party it favours begins where another party would have had to arrive by evidence. Sections 110 to 114 do this in civil matters, and Sections 116 to 120 do it in criminal ones.
Section 111 shifts the burden of proving that a man is alive onto whoever affirms it, once it is shown that he has not been heard of for seven years by those who would naturally have heard of him. Section 112 does the same where persons have been shown to be acting as partners, landlord and tenant, or principal and agent, placing it on the party who says the relationship never existed or has ended. Section 113 places it on the person who denies that a proved possessor is the owner. Section 114 puts the good faith of a transaction on the party standing in a position of active confidence, which is the provision Anil Rishi turned on.
The criminal presumptions are stronger and narrower. Section 118 allows a court to presume dowry death where a woman was subjected to cruelty or harassment for dowry soon before her death. Section 120 presumes the absence of consent in a prosecution under Section 64(2) of the Bharatiya Nyaya Sanhita, 2023, where the woman states in her evidence that she did not consent. How far each of them travels depends on whether the provision says the court may presume or shall presume, expressions the Adhiniyam defines in Section 2(1), and Section 119 supplies the general power to presume facts likely to have happened. The degrees of presumption decide whether the other side merely has something to answer or has to displace a fact the court must otherwise regard as proved.
The practical difference is where the trial starts. A litigant holding a presumption can open on the presumed fact and wait; a litigant without one has to build the probability first. Neither position disturbs the burden Section 105 fastened at the pleading stage, which is why a presumption that is successfully rebutted leaves the original allocation exactly where it was.
Burden of proof at judgment, in civil trials and criminal ones
Once both sides have closed their evidence, the allocation stops driving the trial and works as a tie-breaker. The court decides on the whole of the material before it, and the party carrying the burden loses only where that material leaves the scales level.
That premise is what decided Shivappa v. Shantavva, 2026 INSC 857. The Karnataka High Court had remitted a partition suit to the trial court. The Supreme Court set the remand aside, holding that where the parties have adduced oral and documentary evidence in accordance with the burden and onus of proof fastened on them, a finding can be returned on the pleadings, the issues and that evidence instead of remitting the matter. A remand under Order 41 Rule 23 is not a matter of course.
The two expressions stop diverging at this point, which is why judgments use them together in a single line without any confusion. While evidence is being recorded they describe different things. When it closes, one question is left, which is whether the party who had to prove the case has proved it.
Burden of proof in a civil trial under Section 105
A civil plaintiff has to tip the balance, not merely disturb it. The standard is the preponderance of probabilities, so a plaintiff succeeds where its version is the more probable one and fails where the two versions are equally probable.
A weak defence does not close that gap. The plaintiff succeeds on the strength of its own case, and a defendant’s unconvincing account is not evidence of the plaintiff’s title, debt or adoption. This is the point at which the difference between the two allocations stops being academic, because a party that spent the trial pointing at the other side’s silence has nothing of its own to weigh.
The consequence sits in the order of evidence. A plaintiff who leads on the assumption that the defendant will have to explain itself first has misread Section 105, and it usually discovers the error after its own evidence is closed. An application to lead further evidence at that stage is discretionary, and the court is not obliged to allow one.
The allocation also tells an appellate court what to do. Where the evidence on record was led against the correct allocations, the appellate court already has what it needs to decide the appeal, and Shivappa treats a remand in that situation as delay the parties did not need.
Burden of proof in a criminal trial under Sections 108 and 109
The burden of proving the charge never leaves the prosecution, and Sections 108 and 109 are exceptions to the order of proof rather than to that rule. Section 108 places a real burden on an accused who invokes a General Exception in the Bharatiya Nyaya Sanhita, 2023, or a special exception or proviso in the law defining the offence, and it directs the court to presume the absence of those circumstances until he proves them. Section 109 places a fact especially within a person’s knowledge on that person, which is how an unexplained death inside a shared home comes to call for an explanation from the person who shared it.
Neither section lets a prosecution begin at the accused. In Vijayakumar v. State of Tamil Nadu, 2026 INSC 525, decided on the identically worded predecessor of Section 109, the Supreme Court read “especial knowledge” as extending to facts arising inside an interpersonal relationship, where only the two people involved can know what passed between them. It held in the same judgment that the burden shifts to the accused only once the prosecution’s evidence has stood scrutiny and a prima facie case is made out, so a prosecution that has not proved its foundational facts cannot use the provision to supply them.
Frequently asked questions
Is there any difference between burden of proof and onus of proof under the BSA?
Yes, and the Adhiniyam itself supplies only half of it. Section 104 and Section 105 allocate the burden of proof, which sits on the party who would fail if no evidence at all were given, and that allocation is fixed by the pleadings and never moves. The onus of proof is not defined anywhere in the Act. It comes from Addagada Raghavamma, where the Supreme Court held that the onus shifts continuously as evidence is evaluated, while the burden stays where it was placed.
Which sections of the Bharatiya Sakshya Adhiniyam deal with the burden of proof?
Chapter VII covers Sections 104 to 120. Section 104 states the general rule that whoever asserts must prove, Section 105 places the burden on the party who would fail on an empty record, and Section 106 deals with the burden as to a particular fact. Sections 107 to 109 cover proof of preliminary facts, the General Exceptions in a criminal case, and facts especially within a person’s knowledge. Sections 110 to 120 carry the statutory presumptions, which relocate the starting point without either side proving anything.
Does the burden of proof ever shift to the accused in a criminal case?
The burden of proving the charge stays with the prosecution throughout. What Section 108 does is place a separate burden on an accused who relies on a General Exception under the Bharatiya Nyaya Sanhita, 2023, and the court presumes the absence of those circumstances until he proves them. Section 109 works differently again, because it requires an explanation of facts within the accused’s own knowledge, and Vijayakumar v. State of Tamil Nadu confirms that it operates only after the prosecution has made out a prima facie case.
What happens to the burden of proof once both sides have led their evidence?
It narrows to a tie-breaker. A court deciding on the full record rules on the material rather than on who was supposed to produce it, so the allocation decides the case only where the evidence leaves the two versions evenly balanced. That is why the Supreme Court in Shivappa v. Shantavva held that an appellate court with evidence led against the correct allocations should return a finding rather than remand the suit.
References
- Bharatiya Sakshya Adhiniyam, 2023, Chapter VII (Sections 104 to 120), Ministry of Home Affairs gazette text: https://www.mha.gov.in/sites/default/files/2024-04/250882_english_01042024_0.pdf
- Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136 (Supreme Court of India, 9 April 1963): https://indiankanoon.org/doc/388201/
- Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 (Supreme Court of India, 2 May 2006): https://indiankanoon.org/doc/1353917/
- Shivappa v. Shantavva and Others, 2026 INSC 857 / 2026 LiveLaw (SC) 812 (Supreme Court of India, August 2026): https://www.livelaw.in/sc-judgments/2026-livelaw-sc-812-shivappa-versus-shantavva-and-others-546112
- Vijayakumar v. State of Tamil Nadu, 2026 INSC 525 / 2026 LiveLaw (SC) 531 (Supreme Court of India, 2026): https://www.livelaw.in/sc-judgments/2026-livelaw-sc-531-vijayakumar-versus-state-of-tamil-nadu-535355
- Md. Akbor Ullah v. Md. Rahamat Ullah, 2022 LiveLaw (Tri) 34 (Tripura High Court, 15 August 2022): https://www.livelaw.in/news-updates/tripura-high-court-burden-of-proof-onus-of-proof-evidence-act-presumption-possession-206519
Disclaimer
This article is for informational and educational purposes only and does not constitute legal advice. Readers should consult a qualified advocate before acting on any statement in it.