सं Samvidhan

Bharatiya Sakshya Adhiniyam, 2023

Section 108

Burden of proving that case of accused comes within exceptions

Why this exists

This rule continues the long-standing principle from Section 105 of the old Indian Evidence Act, 1872. Criminal law generally requires the prosecution to prove guilt beyond reasonable doubt, including that no general exception applies. But practically, only the accused usually has personal knowledge of facts like his own mental state, provocation, or private circumstances of self-defence. So lawmakers shifted the burden for these specific defensive claims onto the accused, while the prosecution still must prove the basic elements of the crime itself.

How courts read it

Under the predecessor provision (Section 105, Evidence Act, 1872), the Supreme Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (1964) held that the accused's burden to prove an exception like insanity is not as heavy as the prosecution's burden to prove guilt — it only needs to be established by a 'preponderance of probability,' similar to a civil case, not beyond reasonable doubt. Courts have also clarified that even if the accused fails to fully prove an exception, if the material on record (including the prosecution's own evidence) raises a reasonable doubt about guilt, the accused is still entitled to acquittal — the provision does not lower the overall standard of proof for conviction.

Common misconceptions
  • Myth: The accused must prove his excuse 'beyond reasonable doubt,' just like the prosecution proves guilt.
    Fact: Courts have clarified (following the old Section 105 case law) that the accused only needs to show the excuse is more likely true than not — a lighter 'preponderance of probability' standard, not the strict criminal standard.
  • Myth: If the accused fails to prove the exception, he is automatically convicted.
    Fact: Even if the accused doesn't fully prove the exception, the court must still acquit if the overall evidence — including the prosecution's own evidence — leaves a reasonable doubt about guilt.