Indian Evidence Law | Updated 20 October 2026

Section 105 of the Indian Evidence Act: Burden of Proving Criminal Exceptions

Section 105 of the Indian Evidence Act, 1872 explains who must prove circumstances bringing an accused person within a general exception, special exception or proviso. Its corresponding provision in the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is Section 108.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. Section 108 governs this subject under the new evidence law. Section 170 contains repeal and savings provisions for matters pending when the new Act commenced. The Bharatiya Nyaya Sanhita, 2023 (BNS) also replaced the Indian Penal Code, 1860 for the applicable new-law framework.

Meaning and legal rule

Where an accused relies on circumstances that bring the case within a statutory exception to criminal liability, the accused bears the burden of establishing those circumstances. The court initially presumes the absence of circumstances attracting the exception. The rule applies to general exceptions and to relevant special exceptions or provisos in an offence-creating law.

This allocation does not dispense with the prosecution's independent duty to prove the offence beyond reasonable doubt. The accused may rely on evidence led by either side, cross-examination, and circumstances emerging from the record. The standard ordinarily applied to establishing an exception is a preponderance of probabilities, not proof beyond reasonable doubt.

Section 105 of the Indian Evidence Act, 1872: statutory text

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 Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Historical wording reproduced for reference. The references to the Indian Penal Code belong to the repealed 1872 Act; consult Section 108 BSA and the applicable substantive criminal law for current proceedings.

Original statutory illustrations explained

Illustration (a): Unsoundness of mind

A, accused of murder, alleges that because of unsoundness of mind he did not know the nature of his act. A must establish the circumstances supporting the legal exception. A medical diagnosis alone does not necessarily establish the legal requirements at the time of the act.

Illustration (b): Grave and sudden provocation

A, accused of murder, alleges that grave and sudden provocation deprived him of self-control. A bears the burden of proving circumstances that attract the relevant exception, subject to the statutory requirements and facts of the case.

Illustration (c): Grievous hurt under the former IPC

The historical illustration refers to Section 325 IPC (voluntarily causing grievous hurt) and the exception under Section 335 IPC (grievous hurt on grave and sudden provocation). If A invokes that exception, A must prove the facts bringing the case within it. These IPC section numbers are historical references; the applicable provisions of the BNS should be consulted for offences governed by the new code.

Key principles for courts and litigants

  • Prosecution's legal burden: Proof of all essential elements of the charged offence remains with the prosecution.
  • Exception asserted by accused: The accused must establish the factual foundation of the exception relied upon.
  • Evidence from the whole record: The defence need not necessarily call its own witnesses if the relevant circumstances are otherwise established.
  • Standard of proof: An exception may generally be established on the balance of probabilities; the prosecution's higher standard remains unchanged.
  • Reasonable doubt: Even if an exception is not affirmatively established, evidence may still create reasonable doubt about an ingredient the prosecution must prove.

Read the India Code official legislation portal for the authoritative current text of the Bharatiya Sakshya Adhiniyam, 2023 (especially Sections 104-109 and 170), the Bharatiya Nyaya Sanhita, 2023 (general exceptions and the relevant offence provisions), and the Indian Evidence Act, 1872 for historical and saved proceedings.

For context, see Section 101: General burden of proof, Section 102: On whom the burden lies, Section 103: Particular facts and Section 106: Facts especially within knowledge.

Frequently asked questions

Who must prove a criminal law exception?

Under Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, an accused person who invokes a general or special exception bears the burden of establishing circumstances bringing the case within it.

Does this remove the prosecution's burden to prove guilt?

No. The prosecution must still establish the ingredients of the offence beyond reasonable doubt. Evidence supporting an exception can also create reasonable doubt about an element of the offence.

What is the current equivalent of Section 105 of the Evidence Act?

Section 108 of the Bharatiya Sakshya Adhiniyam, 2023, is the corresponding provision, subject to the saving for pending matters in Section 170.

What standard applies to an accused claiming an exception?

The accused generally establishes the exception on a preponderance of probabilities, rather than beyond reasonable doubt; relevant material may come from the prosecution evidence as well as defence evidence.

This article provides general legal information. The outcome in a particular case depends on the applicable statute, transitional provisions and evidence.