BSA 2023 — Burden of Proof (Sections 104–123): Complete Notes & 10-MCQ Quiz for Judiciary Exam 2027

Last Updated: April 2026

The Bharatiya Sakshya Adhiniyam (BSA), 2023 replaced the Indian Evidence Act, 1872 from 1 July 2024. While the substantive principles of evidence law remain largely intact, the section numbering and legislative architecture have shifted — and one chapter that every judiciary aspirant must master cold is the Burden of Proof (Sections 104 to 123). This is the chapter examiners love because it sits at the intersection of theory (legal vs evidential burden, presumption doctrine), procedure (when does the burden shift?) and constitutional law (reverse-onus clauses and Article 21).

This guide walks you through every key section in the Burden-of-Proof chapter of BSA 2023, maps each section to its old IEA counterpart, illustrates with landmark Supreme Court rulings, and ends with a 10-MCQ practice quiz designed for UP PCS-J, Bihar PCS-J, MP Civil Judge, Rajasthan PCS-J, Delhi Judicial Service and HCS (Judicial) mains-style questions. 1750+ words. Save this page.

Why the Burden-of-Proof Chapter Matters in Judiciary Exams

In the 2024 and 2025 PCS-J prelims across states (UP, Bihar, Rajasthan, MP, Punjab, Haryana), the Burden-of-Proof chapter consistently produced 3 to 5 multiple-choice questions per paper. In mains, every state setter has at least one essay-style question on either Section 104, 109 (special knowledge) or 119 (general exceptions). Why? Because this chapter requires the candidate to think like a trial judge — who has to decide, at the close of pleadings, which side will lose if neither party leads any evidence.

Get this chapter wrong in interview, and the panel knows you don’t have a courtroom mind. Get it right, and you signal that you are ready for the Bench.

Section-Wise Map: BSA 2023 vs Indian Evidence Act 1872

The Two Burdens: Legal Burden vs Evidential Burden

Before we go section-by-section, internalise this distinction — every Supreme Court ruling on this chapter turns on it.

• Legal burden (persuasive burden): The duty to prove the case as a whole. Lies on the party who would lose if no evidence at all were led. Never shifts. Section 104 BSA codifies this.
• Evidential burden (production burden): The duty to lead enough evidence on a particular fact to put it in issue. Shifts depending on what evidence has come on record. Sections 105, 106, 109 and 119 govern its movement.

Justice Vivian Bose’s classic formulation in Stephen Seneviratne v. The King (PC 1936), repeatedly cited by Indian courts, captures it: “The burden of proof in the sense of establishing a case beyond reasonable doubt always rests upon the prosecution and never shifts; what shifts is only the burden of introducing evidence.”

Section 104 — The Foundation Stone

Section 104 BSA reads: “Whoever desires any 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.” This is the bedrock principle actori incumbit probatio — the burden of proof lies on the plaintiff/prosecutor.

Illustration: A sues B for ₹10 lakh under a promissory note. A must prove the promissory note exists, was executed by B, and that ₹10 lakh remains due. B is not required to prove the negative.

Section 109 — The Workhorse Section: Facts Especially Within Knowledge

Section 109 (formerly Section 106 IEA) is the most heavily litigated burden-of-proof provision. It reads: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

Landmark ruling — Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404: Justice Vivian Bose held that Section 106 (now 109) is “an exception to the general rule contained in Section 101 (now 104)” but it does not relieve the prosecution of the burden of proving its case beyond reasonable doubt. It applies only to those matters which are specially within the knowledge of the accused and which he could prove without difficulty or inconvenience.

Modern application — State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382: When the prosecution proved the deceased was abducted and last seen alive in custody of the accused, and the accused offered no explanation, the Court drew an adverse inference under Section 106 IEA / Section 109 BSA. The principle: Section 109 does not reduce the prosecution’s primary burden, but allows reasonable inferences from the accused’s silence on facts within his special knowledge.

Section 119 — Burden on Accused for General Exceptions

Section 119 BSA (formerly Section 105 IEA) places the burden on the accused to prove circumstances bringing his case within any General Exception in BNS 2023 — private defence (Sections 34–43), insanity (Section 22), accident (Section 24), mistake of fact (Section 17), intoxication (Sections 23, 25), etc. The court presumes absence of such circumstances.

Standard of proof: The accused need only establish the exception on a preponderance of probabilities — the same standard as a civil case — not beyond reasonable doubt. Once the accused discharges this burden, the prosecution must prove the absence of the exception beyond reasonable doubt to secure conviction. (K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605.)

Reverse-Onus Clauses in Special Statutes

Several modern statutes contain “reverse-onus” provisions that align with the Section 109 / 119 BSA framework. Judiciary aspirants must know these by name and number:

• NDPS Act, Section 35 — culpable mental state presumed
• NDPS Act, Section 54 — possession of contraband presumed unlawful
• POCSO Act, Section 29 — presumption of commission of offence
• POCSO Act, Section 30 — presumption of culpable mental state
• PMLA, Section 24 — presumption of proceeds of crime
• Prevention of Corruption Act, Section 20 — presumption of acceptance of illegal gratification as motive
• Negotiable Instruments Act, Section 139 — cheque presumed for discharge of debt
• Dowry Prohibition Act / BNS Section 80 with Sections 117, 118 BSA — presumption of dowry death

Constitutional validity: In Noor Aga v. State of Punjab, (2008) 16 SCC 417 and Vijayan v. State of Kerala, (2010) 2 SCC 398, the Supreme Court upheld reverse-onus clauses subject to two safeguards:

1. The prosecution must first prove the foundational facts beyond reasonable doubt (e.g., recovery of contraband, possession of disproportionate assets).
2. The accused need only rebut the presumption on a preponderance of probabilities.

Presumptions Under Sections 117, 118, 122 BSA — Women-Centric Protection

BSA 2023 retains and modernises three crucial gender-justice presumptions:

• Section 117 BSA (Section 113A IEA) — Presumption of abetment of suicide by married woman within 7 years of marriage if cruelty (Section 85 BNS) is proved.
• Section 118 BSA (Section 113B IEA) — Presumption of dowry death where the woman dies within 7 years and was subjected to cruelty/harassment for dowry.
• Section 122 BSA (Section 114A IEA) — In rape cases under Section 64(2) BNS, if the woman states she did not consent, the court shall presume absence of consent.

Sections 110 and 111 — Death Presumptions (7-Year Rule)

Two complementary presumptions, often confused by aspirants:

• Section 110 BSA: Burden of proving that a person known to have been alive within 30 years is dead lies on the person asserting death. (Default presumption: alive.)
• Section 111 BSA: Burden of proving that a person who has not been heard of for 7 years by those who would naturally have heard from him is alive lies on the person asserting he is alive. (Default presumption: dead.)

The 7-year period is critical for succession suits, insurance claims, and matrimonial relief under Section 108 of the Indian Divorce Act / Section 13(1)(vii) of the Hindu Marriage Act.

Sections 116 and 123 — Legitimacy Conclusive Presumption

BSA 2023 retains the strong presumption of legitimacy of a child born during the continuance of valid marriage between the mother and any man, or within 280 days of its dissolution where the mother remained unmarried. The only escape is proof of non-access — i.e., the husband had no opportunity for sexual intercourse with the mother at the relevant time. DNA evidence may be ordered only when there is strong prima facie material; mere allegation of infidelity is not enough (Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418; Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik, (2014) 2 SCC 576).

Practice Quiz — 10 MCQs on BSA 2023 Burden of Proof

Take this quick quiz now. Aim for 8/10 or above — anything below means you need to re-read Sections 104, 109 and 119 cold.

Frequently Asked Questions

Q1. Does the burden of proof under Section 104 BSA ever shift from the prosecution to the accused?

The legal burden (persuasive burden) under Section 104 never shifts — the prosecution must prove guilt beyond reasonable doubt throughout the trial. What can shift is the evidential burden (production burden) — once the prosecution proves the foundational facts, the accused may have to lead evidence on facts within his special knowledge (Section 109) or on general exceptions (Section 119), but only on the standard of preponderance of probabilities.

Q2. What is the difference between Section 109 and Section 119 BSA 2023?

Section 109 deals with any fact especially within the knowledge of a person — applicable in both civil and criminal cases. Section 119 is narrower: it specifically places on the accused the burden of proving general exceptions (private defence, insanity, accident, mistake of fact, etc.) under BNS 2023 Chapter III. Section 119 is essentially a special application of the Section 104 / 109 principle.

Q3. Are reverse-onus clauses in NDPS, POCSO and PMLA constitutionally valid?

Yes — but conditionally. In Noor Aga v. State of Punjab (2008) and Vijayan v. State of Kerala (2010), the Supreme Court upheld reverse-onus clauses on two conditions: (i) the prosecution must first prove foundational facts beyond reasonable doubt; (ii) the accused needs only to rebut the presumption on a preponderance of probabilities, not BARD. Reading these clauses with Sections 109 and 119 BSA produces a balanced, Article 21-compliant framework.

Q4. How is Section 116 BSA (legitimacy of child) different from a DNA test?

Section 116 BSA creates a conclusive presumption of legitimacy for any child born during a valid marriage or within 280 days of dissolution where the mother remained unmarried. Only proof of non-access (no opportunity for sexual intercourse) can rebut it. DNA evidence alone is not enough; the Supreme Court (Goutam Kundu 1993, Nandlal Wasudeo Badwaik 2014) requires strong prima facie material before ordering DNA tests, and even then, the conclusive presumption stands unless non-access is independently proved.

Q5. For PCS-J prelims, which sections of the Burden-of-Proof chapter must I memorise verbatim?

At minimum: Sections 104, 105, 106, 109, 111, 116, 117, 118, 119, 121 and 122. Know the section number, the old IEA section number, the principle, and at least one landmark case for each. Sections 109, 119 and 122 are the highest-yield for both prelims and mains across all PCS-J states.

Related Reading on Judiciary Gurukul

• Bharatiya Sakshya Adhiniyam (BSA) 2023 — Key Changes from Indian Evidence Act
• BSA 2023 — Comparison with IEA and Exam Guide
• Bharatiya Nyaya Sanhita (BNS) 2023 — Key Sections and New Features
• BNSS 2023 — Arrest, Remand and Bail Procedures (Sections 35–88)
• BNS 2023 — General Exceptions (Sections 14–44)

Bookmark this page and revise it 48 hours before your next mock test. The Burden-of-Proof chapter has the highest marks-per-page ratio in the entire BSA 2023 — invest the time, and it will pay back across all your PCS-J attempts.