Indian Evidence Law | Updated October 2026
Section 102 Evidence Act: On Whom Burden of Proof Lies | BSA Section 105
The burden of proof in a suit or proceeding ordinarily lies on the person who would lose if neither side produced any evidence. This foundational rule is now contained in Section 105 of the Bharatiya Sakshya Adhiniyam, 2023.
Current law: BSA Section 105Earlier law: Evidence Act Section 102Section 105 of the Bharatiya Sakshya Adhiniyam, 2023
The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), which came into force on 1 July 2024, addresses on whom burden of proof lies in Section 105. The operative rule states:
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.
In other words, identify the party whose claim or defence cannot succeed without proving a disputed fact. That party ordinarily carries the burden in relation to that issue. The statutory test is not a prediction of who will win after all evidence has been heard.
Section 102 of the Indian Evidence Act, 1872
Former Section 102, titled On whom burden of proof lies, stated:
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.
Section 105 BSA is the corresponding provision under the current evidence law. Section 170 BSA contains repeal-and-savings rules, including for certain proceedings pending when the new law commenced. The applicable legislation must therefore be assessed in context.
Meaning of the No-Evidence Test
Burden of proof means the obligation to establish a fact to the standard applicable to the proceeding. Section 105 identifies who initially bears the risk of failing to prove the relevant issue by asking a straightforward question: If neither party presented evidence, who would fail?
- Identify the disputed claim or defence. Determine the legal right, liability or exception at issue.
- Assume neither side offers evidence. Consider the result based on the admitted facts and applicable legal rules.
- Identify the party who would fail. That party bears the burden addressed by Section 105.
- Reassess specific issues separately. A defendant who raises an affirmative allegation, such as fraud, may bear the burden of proving that allegation even where the plaintiff bears the burden on the overall claim.
Admissions, statutory presumptions and special rules may affect which facts require proof. The rule must be applied alongside the other provisions on burden of proof.
Statutory Illustrations
Illustration (a): Claim to land under a will
A sues B for land in B's possession. A asserts that C, B's father, left the land to A by will.
If no evidence were produced by either side, B would be entitled to retain possession. Therefore, the burden of proof lies on A to establish the facts supporting A's claim under the will.
Illustration (b): Bond challenged for fraud
A sues B to recover money due on a bond. B admits executing the bond but alleges that it was obtained by fraud; A denies fraud.
If neither side produced evidence, A would succeed because the execution of the bond is admitted and fraud has not been proved. Therefore, the burden of proving fraud lies on B.
These illustrations show that the relevant burden depends on the specific contested proposition, not simply on whether a person is the plaintiff or defendant.
Related Rules on Burden of Proof
Former Section 101 / BSA Section 104: A person asking the court to decide a legal right or liability based on asserted facts must prove those facts.
Former Section 102 / BSA Section 105: The burden lies on the party who would fail if no evidence were produced on either side.
Former Section 103 / BSA Section 106: A person who wants the court to believe a particular fact generally must prove that fact, unless a law provides otherwise.
Former Section 104 / BSA Section 107: Where one fact must be established before evidence of another fact becomes admissible, the party seeking to introduce the evidence must prove the preliminary fact.
Former Section 105 / BSA Section 108: Specific rules apply when an accused invokes certain exceptions.
Former Section 106 / BSA Section 109: The burden of proving a fact especially within a person's knowledge rests on that person.
Practical Application in Civil and Criminal Proceedings
Civil recovery claim
Where a claimant alleges a loan and the defendant disputes ever receiving it, the claimant ordinarily must establish the loan and entitlement to repayment. If the defendant admits the loan but alleges discharge by payment, proof of the alleged payment may fall on the defendant.
Allegation of fraud
A person relying on fraud to defeat an otherwise established document must ordinarily prove the facts constituting fraud. Merely alleging fraud does not establish it.
Criminal prosecution
The prosecution generally bears the legal burden of proving the ingredients of an offence beyond reasonable doubt, subject to applicable statutory provisions and presumptions. Section 105 does not reverse the presumption of innocence merely because the accused disputes the charge.
The legal or persuasive burden and the evidential burden should be distinguished. Evidence introduced during trial can require the other side to respond, without necessarily shifting the ultimate legal burden on the central issue.
Frequently Asked Questions
Which current law corresponds to Section 102 of the Indian Evidence Act?
Section 105 of the Bharatiya Sakshya Adhiniyam, 2023.
What is the no-evidence test?
It asks which party would fail if neither side produced any evidence. That party bears the burden under this rule.
Does the plaintiff always bear the burden of proof?
No. A defendant may bear the burden of a particular affirmative allegation, such as fraud or payment, depending on what is admitted and disputed.
Does the burden of proof automatically shift during a trial?
Not necessarily. The obligation to respond to evidence may change as a case progresses, while the ultimate legal burden remains governed by the relevant statute and the issues to be proved.
Official Legislation and Further Reading
Consult the Bharatiya Sakshya Adhiniyam, 2023 (official text), particularly Sections 104 to 109 and 170, and the India Code portal for authoritative statutory materials and amendments.
This article provides general legal information. The outcome in any case depends on pleadings, admissions, applicable presumptions, admissible evidence and the governing law.