Actori incumbit probatio is a Latin legal maxim meaning “the burden of proof lies on the plaintiff”: the person who asks a court for a judgment must prove the facts on which the claim rests. In India the maxim is written into Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), formerly Section 101 of the Indian Evidence Act, 1872: “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”.
The burden lies on the party who “would fail if no evidence at all were given on either side” (Section 105 BSA) and, for each particular fact, on the person who wants the court to believe it (Section 106 BSA). A civil plaintiff must prove the claim on a preponderance of probabilities; in a criminal case the prosecution must prove guilt beyond reasonable doubt. Below are examples from the Act, the Supreme Court’s rulings on burden and onus, the exceptions, and a summary in Hindi.
Actori incumbit probatio at a glance
- Meaning: the burden of proof lies on the plaintiff, the one who brings the claim. In plain words: he who asserts must prove.
- Indian law: Section 104 BSA, the same rule as Section 101 of the Evidence Act; the BSA has been in force since 1 July 2024.
- Who bears it: the party who would lose if neither side gave any evidence (Section 105 BSA, formerly 102).
- Particular facts: whoever wants the court to believe a fact, such as an alibi, must prove it (Section 106 BSA, formerly 103).
- Burden and onus: the burden of proof does not shift; the onus of producing evidence does (Anil Rishi v. Gurbaksh Singh, 2006).
- Standards: preponderance of probabilities in civil cases (Dastane, 1975); beyond reasonable doubt for the prosecution in criminal cases.
- Exceptions: the accused proves a General Exception such as insanity (Section 108) and facts especially within his knowledge (Section 109); presumptions in the BSA and in Acts such as the PC Act (s.20), NDPS Act (ss.35, 54), POCSO Act (ss.29, 30), PMLA (s.24) and NI Act (s.139) shift the burden to him.
- The whole chapter: Chapter VII, “Of the Burden of Proof”, Sections 104–120 BSA (formerly Sections 101–114A).
Reviewed and updated by Century Law Firm, Delhi – October 2026. Statutory references are to the Acts as in force on that date. The Bharatiya Sakshya Adhiniyam, 2023 and the Bharatiya Nyaya Sanhita, 2023 are quoted from India Code (as on 6 October 2025; that copy shows no amendment to the sections discussed), the Code of Civil Procedure from India Code (as on 10 January 2026), the special Acts from their current India Code texts (dates in the sources paragraph), and the judgments from the Supreme Court’s own copies.
Actori incumbit probatio: meaning and translation
Word by word, actori means “on the plaintiff” (the actor is the person who brings the action), incumbit means “lies” or “rests”, and probatio means “proof”: “on the plaintiff rests the proof”. These glosses are the firm’s own translation; what matters in court is the rule in the Act.
Readers also meet the longer form actori incumbit onus probandi and the reversed order onus probandi incumbit actori. Onus probandi means “the burden of proving”, an expression the Supreme Court uses: “The right to begin follows onus probandi” (Anil Rishi v. Gurbaksh Singh, 2006). The firm’s guide to legal maxims explained lists other maxims used in Indian courts.
Where the maxim is in Indian law: Sections 104–106 BSA
Since 1 July 2024 the law of evidence is the Bharatiya Sakshya Adhiniyam, 2023, which repealed the Evidence Act. The burden-of-proof sections were carried over with only drafting changes, except that Section 113 of the Evidence Act (proof of cession of territory) was dropped; the firm’s IEA to BSA comparison tool gives every old and new number.
Section 104: the burden of proof
Section 104 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, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” Its two illustrations cover both kinds of case:
- “A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.”
- “A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.”
Section 105: on whom the burden lies
Section 105 gives the test: “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.” The test can put the burden on a defendant. If A sues B for land in B’s possession, claiming it under a will, B would keep the land if no evidence were given, so “the burden of proof is on A”. If A sues on a bond whose execution B admits and B says it was obtained by fraud, A would win without evidence, so “the burden of proof is on B”.
Section 106: the burden as to a particular fact
Section 106: “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” When A prosecutes B for theft and says B confessed to C, “A must prove the admission”; when B says he was elsewhere, “He must prove it.”
| BSA section | Formerly (Evidence Act) | Rule |
|---|---|---|
| 104 | 101 | Whoever asserts facts must prove them |
| 105 | 102 | Burden on the party who would fail without evidence |
| 106 | 103 | Burden as to a particular fact |
| 107 | 104 | Facts needed to make evidence admissible |
| 108 | 105 | Accused must prove an exception |
| 109 | 106 | Facts especially within a person’s knowledge |
| 110–114 | 107–111 | Alive or dead, relationships, ownership, good faith |
| 115–120 | 111A–114A (s.113 omitted) | Presumptions (legitimacy, dowry death, consent and others) |
Burden of proof and onus of proof: Anil Rishi v. Gurbaksh Singh (2006)
In Anil Rishi v. Gurbaksh Singh (Supreme Court, 2 May 2006, S.B. Sinha and P.K. Balasubramanyan JJ.) the plaintiff sought a declaration that a sale deed was forged. The trial court, upheld by the High Court, made the defendant prove the deed genuine because he held the original and was said to be in a “dominating position”. The Supreme Court set that aside: “the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it.” It added that “Pleading is not evidence, far less proof” and that “Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie”.
On the two terms the Court said: “A distinction exists between a burden of proof and onus of proof.” And: “In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.” [Section 102 of the Evidence Act, now Section 105 BSA.] Quoting an earlier ruling: “burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts.”
The plaintiff must prove his own case: Rangammal v. Kuppuswami (2011)
In Rangammal v. Kuppuswami (Supreme Court, 13 May 2011) the plaintiff in a partition suit relied on a 1951 sale deed of a share that belonged to the defendant when she was a minor, and the courts below required her to challenge it. The Supreme Court reversed them: “the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case.” The court “cannot proceed on the basis of weakness of the other party”, and “misplacing burden of proof would vitiate judgment”.
Examples of actori incumbit probatio in civil cases
Under Order XVIII, Rule 1 of the Code of Civil Procedure, “The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff”; if the defendant admits them and says that, in law or on additional facts, the plaintiff is not entitled to relief, “the defendant has the right to begin.” (See how a civil suit and a criminal case move.) Other rules in the chapter:
- Title: the plaintiff must prove the facts giving him title; Rangammal recorded that “it is for the plaintiff to prove his title”.
- Possession: where a person is shown to be in possession, whoever says he is not the owner must prove it (Section 113, formerly 110).
- Active confidence: in a deal between advocate and client, or father and a son just of age, the party in active confidence proves good faith (Section 114, formerly 111). But the plaintiff must first prove that relationship (Anil Rishi).
In matrimonial cases too, “the burden must lie on the petitioner to establish his or her case for, ordinarily, the burden lies on the party which affirms a fact, not on the party which denies it”, as the Supreme Court said in N.G. Dastane v. S. Dastane (1975), where the husband sought, among other reliefs, judicial separation on the ground of cruelty.
Burden of proof in criminal cases
In a criminal case the party asserting guilt is the prosecution. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat (1964) the Supreme Court said: “It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.” “This general burden never shifts and it always rests on the prosecution.”
Section 108: the accused must prove an exception
Under Section 108 BSA (formerly Section 105), the burden of proving circumstances bringing the case within “any of the General Exceptions in the Bharatiya Nyaya Sanhita, 2023” or any special exception or proviso “is upon him, and the Court shall presume the absence of such circumstances.” The General Exceptions are Sections 14 to 44 BNS, including unsoundness of mind (Section 22, formerly 84 IPC) and private defence (from Section 34, formerly 96 IPC). The first two of the Act’s three illustrations are insanity and grave and sudden provocation (now Exception 1 to Section 101 BNS).
The burden is a light one. Dahyabhai, an insanity case, held that the accused must make the court consider the exception “so probable that a prudent man would act upon” it – “The accused has to satisfy the standard of a ‘prudent man'” – and, adopting a passage from Halsbury’s Laws of England, the Court said: “The burden of proof upon him is no higher than which rests upon a party to civil proceedings.” If his evidence falls short but raises a reasonable doubt about an ingredient of the offence, such as intention, he must still be acquitted.
Section 109: facts especially within a person’s knowledge
Section 109 BSA (formerly Section 106; see the firm’s post on Section 106 of the Evidence Act): “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Its example is a passenger without a ticket: “The burden of proving that he had a ticket is on him.”
In Shambu Nath Mehra v. State of Ajmer (1956) the Supreme Court called it “an exception to section 101” that “is certainly not intended to relieve” the prosecution of its duty. “Especially” means “facts that are preeminently or exceptionally within his knowledge”; otherwise an accused would have to prove he did not commit a murder, “because who could know better than he” (Sections 106 and 101 of the Evidence Act, now Sections 109 and 104 BSA). In Trimukh Maroti Kirkan v. State of Maharashtra (2006), on a murder committed in secrecy inside a house, the Court held that the initial burden stays on the prosecution, but “there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed.”
Prepared by Century Law Firm from Sections 104–111 of the Bharatiya Sakshya Adhiniyam, 2023 (India Code) and the Supreme Court’s judgments in Anil Rishi (2006), Dahyabhai Thakker (1964), Shambu Nath Mehra (1956) and Dastane (1975).
Standard of proof: preponderance of probabilities and beyond reasonable doubt
No section of the BSA names either standard. The Act defines “proved” in Section 2(1)(j): the Court “either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” In Dastane the Supreme Court read the identical definition in Section 3 of the Evidence Act as: “The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities.” Important issues “demand a closer scrutiny”, but the test is the same. “Proof beyond reasonable doubt is proof by a higher standard which generally governs criminal trials”, because a criminal trial “involves the liberty of the subject”.
| Who | Must prove | Standard | Authority |
|---|---|---|---|
| Civil plaintiff | The facts of his claim | Preponderance of probabilities | s.104 BSA; Dastane |
| Civil defendant | Facts he pleads, e.g. fraud | Preponderance of probabilities | s.105 ill. (b), s.106 |
| Prosecution | Guilt of the accused | Beyond reasonable doubt | Dahyabhai (1964) |
| Accused pleading insanity | The exception (s.108) | The “prudent man” (civil) test | s.108 BSA; Dahyabhai |
| Accused, s.139 NI Act | A probable defence | Preponderance of probabilities | Rangappa (2010) |
Presumptions: when the onus shifts by law
Where the court “may presume” a fact, “it may either regard such fact as proved, unless and until it is disproved or may call for proof of it” (Section 2(1)(h)); where it “shall presume”, “it shall regard such fact as proved, unless and until it is disproved” (Section 2(1)(l)). Examples in the chapter:
- Legitimacy (Section 116, formerly 112): birth during a valid marriage is “conclusive proof” of legitimacy unless the parties “had no access to each other” when the child could have been begotten.
- Dowry death (Section 118, formerly 113B): where cruelty or harassment for dowry “soon before her death” is shown, the court “shall presume” the person caused the dowry death.
- Suicide of a married woman (Section 117, formerly 113A): within seven years of marriage, with cruelty shown, the court “may presume” abetment.
- Consent (Section 120, formerly 114A): in a prosecution under Section 64(2) BNS, where sexual intercourse by the accused is proved and the woman states in evidence that she did not consent, “the Court shall presume that she did not consent.”
Statutes that shift the burden to the accused
Several special Acts go further than the BSA: the court must (or, under some sections, may) presume guilt, a guilty mind or a key ingredient unless the accused proves otherwise. The key words, from the current texts on India Code:
| Act and section | When it applies | What is presumed |
|---|---|---|
| Prevention of Corruption Act, 1988, s.20 (as substituted in 2018) | In a trial under s.7 or s.11, “it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain” any undue advantage | “it shall be presumed, unless the contrary is proved”, that he did so “as a motive or reward under section 7” (or, under s.11, without or for inadequate consideration) |
| NDPS Act, 1985, s.35 | An offence that “requires a culpable mental state” | “the court shall presume the existence of such mental state”; the accused may prove he had none |
| NDPS Act, 1985, s.54 | Drugs, plants, apparatus or materials “for the possession of which he fails to account satisfactorily” | “it may be presumed, unless and until the contrary is proved, that the accused has committed an offence” |
| POCSO Act, 2012, s.29 | Prosecution for committing, abetting or attempting an offence under ss.3, 5, 7 and 9 | The Special Court “shall presume” that he committed, abetted or attempted it, “unless the contrary is proved” |
| POCSO Act, 2012, s.30 | An offence requiring a culpable mental state | The Special Court “shall presume the existence of such mental state”; the accused may prove he had none |
| PMLA, 2002, s.24 | A person “charged with the offence of money-laundering under section 3” | “unless the contrary is proved”, that the proceeds of crime “are involved in money-laundering” (for any other person: “may presume”) |
| Negotiable Instruments Act, 1881, s.139 | The holder of a dishonoured cheque under s.138 | That he received it “for the discharge, in whole or in part, of any debt or other liability”, “unless the contrary is proved” |
The words of some of these sections say what must come first. Under Section 20 of the PC Act it must be “proved” that the public servant accepted or obtained the undue advantage. Under Section 54 of the NDPS Act the presumption concerns articles for whose possession the accused “fails to account satisfactorily”. And for Section 139 of the NI Act the Supreme Court held in Rangappa v. Sri Mohan (2010) that once the accused admitted that the signature on the cheque was his, “the statutory presumption comes into play”.
How much must the accused prove? For their own purposes, Section 35(2) of the NDPS Act and Section 30(2) of the POCSO Act define when a fact is “proved”: only when the court “believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability”. But for Sections 35 and 54 of the NDPS Act the Supreme Court held in Noor Aga v. State of Punjab (9 July 2008, S.B. Sinha and V.S. Sirpurkar JJ.) that the presumptions operate “only in the event the circumstances contained therein are fully satisfied”, that “An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift”, and that while the prosecution’s standard is “beyond all reasonable doubt”, “it is ‘preponderance of probability’ on the accused”; possession of the contraband “will have to be proved beyond reasonable doubt”. For Section 139 of the NI Act, Rangappa called it “an example of a reverse onus clause” and held that “the standard of proof for doing so is that of ‘preponderance of probabilities'”. The texts of Section 20 of the PC Act, Section 54 of the NDPS Act, Section 29 of the POCSO Act and Section 24 of the PMLA do not state a standard, and no judgment on the PC Act, POCSO or PMLA provisions was opened for this page, so it does not go beyond their words. See also the firm’s cheque bounce case FAQs and its guide to the POCSO Act.
Old cases: under Section 170(2) BSA, proceedings pending before 1 July 2024 “shall be dealt with under the provisions of the Indian Evidence Act, 1872”. The rules are the same in both Acts, so the judgments above apply either way. Related maxims on this site include prima facie and dominus litis.
एक्टोरी इनकम्बिट प्रोबेशियो (Actori Incumbit Probatio) – हिंदी में सारांश (Summary in Hindi)
“एक्टोरी इनकम्बिट प्रोबेशियो” (actori incumbit probatio) एक लैटिन विधिक सूत्र है, जिसका अर्थ है कि साबित करने का भार वादी पर होता है, यानी जो व्यक्ति अदालत में कोई दावा करता है, उसे ही अपने दावे के तथ्य साबित करने होते हैं। सरल शब्दों में, जो कहता है वही साबित करे। लैटिन शब्दों का यह अर्थ फर्म का अपना अनुवाद है।
भारत में यह नियम भारतीय साक्ष्य अधिनियम, 2023 (Bharatiya Sakshya Adhiniyam, BSA) की धारा 104 में है, जो पहले पुराने भारतीय साक्ष्य अधिनियम, 1872 (Indian Evidence Act) की धारा 101 थी। 1 जुलाई 2024 से BSA लागू है। धारा 104 के अनुसार जो व्यक्ति चाहता है कि अदालत उन तथ्यों के आधार पर किसी विधिक अधिकार या दायित्व पर निर्णय दे जिनका वह दावा करता है, उसे साबित करना होगा कि वे तथ्य मौजूद हैं। धारा 105 (पहले 102) बताती है कि भार उस पक्ष पर है जो हार जाएगा यदि दोनों ओर से कोई साक्ष्य न दिया जाए। धारा 106 (पहले 103) के अनुसार किसी विशेष तथ्य को साबित करने का भार उस पर है जो चाहता है कि अदालत उस तथ्य पर विश्वास करे, जैसे अभियुक्त को यह साबित करना होगा कि घटना के समय वह कहीं और था (alibi)।
सुप्रीम कोर्ट ने अनिल ऋषि बनाम गुरबख्श सिंह (2 मई 2006) में कहा कि सबूत का भार (burden of proof) कभी नहीं बदलता, पर साक्ष्य देने का दायित्व (onus of proof) मुकदमे के दौरान एक पक्ष से दूसरे पक्ष पर जा सकता है। रंगम्मल बनाम कुप्पुस्वामी (13 मई 2011) में अदालत ने कहा कि जब तक दावा करने वाला अपना भार पूरा न करे, दूसरे पक्ष से अपना मामला साबित करने को नहीं कहा जा सकता, और गलत पक्ष पर भार डालने से निर्णय दूषित हो जाता है।
दीवानी मामलों में मानक “संभावनाओं की प्रबलता” (preponderance of probabilities) है, जैसा सुप्रीम कोर्ट ने दस्ताने बनाम दस्ताने (1975) में कहा। आपराधिक मामलों में अभियुक्त को निर्दोष माना जाता है और अभियोजन को अपराध “युक्तियुक्त संदेह से परे” (beyond reasonable doubt) साबित करना होता है, और यह भार कभी नहीं बदलता (दह्याभाई ठक्कर बनाम गुजरात राज्य, 1964)।
कुछ अपवाद हैं। धारा 108 (पहले 105) के अनुसार यदि अभियुक्त पागलपन या निजी प्रतिरक्षा जैसे साधारण अपवाद, या हत्या के मामले में गंभीर और अचानक प्रकोपन जैसे विशेष अपवाद का सहारा लेता है, तो उसे वह साबित करना होगा। पागलपन (चित्तविकृति) के मामले में सुप्रीम कोर्ट ने कहा है कि उसका भार दीवानी मुकदमे के पक्षकार से अधिक नहीं है (दह्याभाई ठक्कर, 1964)। धारा 109 (पहले 106) के अनुसार जो तथ्य विशेष रूप से किसी व्यक्ति की जानकारी में है, उसे साबित करने का भार उसी पर है, जैसे बिना टिकट यात्रा के मामले में टिकट दिखाना। पर यह धारा अभियोजन को अपना मामला साबित करने से मुक्त नहीं करती (शम्भू नाथ मेहरा बनाम अजमेर राज्य, 1956)। दहेज मृत्यु (धारा 118) जैसे मामलों में कानून स्वयं उपधारणा करता है, और चेक बाउंस के मामलों में परक्राम्य लिखत अधिनियम की धारा 139 के तहत अभियुक्त संभावनाओं की प्रबलता के आधार पर उपधारणा का खंडन कर सकता है (रंगप्पा बनाम श्री मोहन, 2010)। विशेष कानूनों में भी ऐसी उपधारणाएँ हैं: भ्रष्टाचार निवारण अधिनियम, 1988 की धारा 20, NDPS अधिनियम, 1985 की धाराएँ 35 और 54, पॉक्सो (POCSO) अधिनियम, 2012 की धाराएँ 29 और 30, और धन-शोधन निवारण अधिनियम (PMLA), 2002 की धारा 24। NDPS की धाराओं 35 और 54 के बारे में सुप्रीम कोर्ट ने नूर आगा बनाम पंजाब राज्य (9 जुलाई 2008) में कहा कि पहले अभियोजन को मूल तथ्य साबित करने होते हैं, और उसके बाद अभियुक्त पर भार केवल संभावनाओं की प्रबलता (preponderance of probability) का है।
यह खंड फर्म का सरल सारांश है; यह BSA का आधिकारिक हिंदी पाठ नहीं है।
Frequently asked questions
It means “the burden of proof lies on the plaintiff”: whoever brings a claim must prove the facts behind it. In India the rule is Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 101 of the Evidence Act): whoever wants judgment on facts “which he asserts must prove that those facts exist”. The word-for-word translation of the Latin is the firm’s own.
A longer form of the same maxim. Onus probandi means “the burden of proving”; the Supreme Court used the expression in Anil Rishi v. Gurbaksh Singh (2006): “The right to begin follows onus probandi.” Whatever the form, the rule in Indian law is that the party who asserts a fact must prove it (Sections 104 to 106 BSA).
Chapter VII of the Bharatiya Sakshya Adhiniyam, 2023, “Of the Burden of Proof”, Sections 104 to 120 (formerly Sections 101 to 114A of the Indian Evidence Act, 1872). The core rule is in Sections 104 (burden of proof), 105 (on whom it lies) and 106 (particular facts); Sections 107 to 114 cover particular situations and Sections 115 to 120 presumptions.
The Act’s own illustration: if A asks the court to hold that he is entitled to land in B’s possession, “A must prove the existence of those facts” (Section 104 BSA). If nobody gave any evidence, B would keep the land, so the burden is on A (Section 105). In a criminal case, A who says B committed a crime must prove it.
On the party “who would fail if no evidence at all were given on either side” (Section 105 BSA, formerly 102), usually the plaintiff. But if the defendant admits signing a bond and says it was obtained by fraud, the plaintiff would win without evidence, so the defendant must prove the fraud (illustration (b) to Section 105).
In Anil Rishi v. Gurbaksh Singh (2 May 2006) the Supreme Court said that “A distinction exists between a burden of proof and onus of proof.” The burden lies on the party who has to prove the fact “and which never shifts”; the onus, the duty to produce evidence at a stage, shifts: once the plaintiff makes out a case, it moves to the defendant.
No. In Rangammal v. Kuppuswami (13 May 2011) the Supreme Court held that the burden “always lies upon the person who asserts”, that the other party need not prove his case until it is discharged, and that the court “cannot proceed on the basis of weakness of the other party”. Misplacing the burden vitiates the judgment.
Preponderance of probabilities, applying the “prudent man” test in the definition of “proved” (Section 2(1)(j) BSA). In Dastane v. Dastane (1975) the Supreme Court called it “The normal rule which governs civil proceedings”; important issues, such as those affecting status, “demand a closer scrutiny”, but the standard stays the same.
Beyond reasonable doubt, on the prosecution. In Dahyabhai Chhaganbhai Thakker v. State of Gujarat (1964) the Supreme Court said that “an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt”, and that this burden “never shifts”. The BSA does not state the standard in these words.
Partly. The general rule is that the prosecution proves guilt beyond reasonable doubt (Dahyabhai, 1964). But the accused must prove an exception he relies on (Section 108 BSA) and facts especially within his knowledge (Section 109), and must disprove statutory presumptions where they apply: Section 118 BSA, Section 20 of the Prevention of Corruption Act, Sections 35 and 54 of the NDPS Act (Section 54 is a “may presume” provision), Sections 29 and 30 of the POCSO Act, Section 24 of the PMLA and Section 139 of the Negotiable Instruments Act. For Section 139 (Rangappa, 2010) and NDPS Sections 35 and 54 (Noor Aga, 2008) the Supreme Court has held that the accused’s standard is a preponderance of probability; Noor Aga adds that the prosecution must first prove the foundational facts.
The accused. Under Section 108 BSA (formerly Section 105) the burden of proving a General Exception in the Bharatiya Nyaya Sanhita, such as unsoundness of mind (Section 22 BNS) or private defence, is on him, and the court presumes its absence. In Dahyabhai (1964), an insanity case, the Supreme Court held that he must satisfy “the standard of a ‘prudent man'”, and that evidence falling short may still raise a reasonable doubt.
Section 109 BSA: “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” (Section 106 BSA is a different rule, formerly Section 103.) In Shambu Nath Mehra v. State of Ajmer (1956) the Supreme Court held that the old Section 106 does not relieve the prosecution of its duty to prove the case.
Where the court “may presume” a fact, it may treat it as proved until disproved or may call for proof (Section 2(1)(h) BSA). Where it “shall presume”, it must treat it as proved unless and until disproved (Section 2(1)(l)). “Conclusive proof” (Section 2(1)(b)) allows no evidence to disprove it, as in the legitimacy rule of Section 116.
The accused. Section 139 of the Negotiable Instruments Act presumes, “unless the contrary is proved”, that the cheque was received for a debt or liability. In Rangappa v. Sri Mohan (7 May 2010) the Supreme Court called it “an example of a reverse onus clause” and held that the accused rebuts it on a preponderance of probabilities, even from the complainant’s own material.
The plaintiff, under Order XVIII, Rule 1 of the Code of Civil Procedure, unless the defendant admits the plaintiff’s facts and contends that, in law or on additional facts, the plaintiff is not entitled to any relief; then the defendant begins. As Anil Rishi (2006) put it, “The right to begin follows onus probandi.”
Conclusion
Actori incumbit probatio means that whoever asks the court for something must prove the facts behind it. Indian law states the rule in Sections 104 to 106 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Sections 101 to 103 of the Evidence Act). In the Supreme Court’s terms the burden of proof does not shift, though the onus of producing evidence does, and a plaintiff cannot win on the weakness of the defence. The Act’s own limits are the accused’s burden to prove exceptions and facts especially within his knowledge, and presumptions in the BSA and Acts such as the Negotiable Instruments Act. The standard is a preponderance of probabilities in civil cases and proof beyond reasonable doubt for the prosecution.
Sources used for this post: the Bharatiya Sakshya Adhiniyam, 2023, Sections 2(1)(b), (h), (j) and (l), 104 to 120 and 170 (India Code, as on 6 October 2025); the Bharatiya Nyaya Sanhita, 2023, Sections 14 to 44 (General Exceptions), 22, 34, 64 and 101 (India Code, as on 6 October 2025); the Code of Civil Procedure, 1908, Order XVIII, Rule 1 (India Code, as on 10 January 2026); the firm’s Gazette-checked IEA–BSA and IPC–BNS mapping; the Prevention of Corruption Act, 1988, Section 20 (India Code, as on 21 May 2025), the Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 35 and 54 (India Code, last update 3 January 2022), the Protection of Children from Sexual Offences Act, 2012, Sections 29 and 30 (India Code, as on 1 July 2026), the Prevention of Money-Laundering Act, 2002, Section 24 (India Code, as on 27 July 2025) and the Negotiable Instruments Act, 1881, Section 139 (India Code copy, amended up to Act 20 of 2018); and the Supreme Court’s own copies of Anil Rishi v. Gurbaksh Singh, Civil Appeal No. 2413 of 2006, 2 May 2006 (api.sci.gov.in/jonew/judis/27706.pdf), Rangammal v. Kuppuswami, Civil Appeal No. 562 of 2003, 13 May 2011 (api.sci.gov.in/jonew/judis/38030.pdf), Dahyabhai Chhaganbhai Thakker v. State of Gujarat, 19 March 1964 (api.sci.gov.in/jonew/judis/3292.pdf), Shambu Nath Mehra v. State of Ajmer, Criminal Appeal No. 65 of 1954, 12 March 1956 (api.sci.gov.in/jonew/judis/754.pdf), Trimukh Maroti Kirkan v. State of Maharashtra, Criminal Appeal No. 1341 of 2005, 11 October 2006 (api.sci.gov.in/jonew/judis/28109.pdf), Narayan Ganesh Dastane v. Sucheta Narayan Dastane, 19 March 1975 (api.sci.gov.in/jonew/judis/6011.pdf), Rangappa v. Sri Mohan, Criminal Appeal No. 1020 of 2010, 7 May 2010 (api.sci.gov.in/jonew/judis/36322.pdf) and Noor Aga v. State of Punjab, Criminal Appeal No. 1034 of 2008, 9 July 2008 (api.sci.gov.in/jonew/judis/31821.pdf).
