Jurisprudence, Interpretation and General Laws · Law relating to Evidence

Burden of Proof, Presumptions and Estoppel under BSA 2023

Updated 11 October 2026 · Fact-checked

Under the Bharatiya Sakshya Adhiniyam, 2023, the burden of proof lies on the person who would fail if no evidence were given on either side. Courts may or must presume certain facts unless disproved. Estoppel stops a person from denying what they earlier led another to believe. Name the party, cite the section, then conclude.

Understand Burden of Proof, Presumptions and Estoppel

A court decides a case on facts. Someone must prove those facts. The burden of proof tells you who. Section 104 says that whoever wants the court to give judgment on a legal right or liability that depends on facts he asserts must prove that those facts exist. The person bound to prove a fact carries the burden.

Section 105 gives the working test. The burden lies on the person who would fail if no evidence at all were given on either side. Take a suit for land that B possesses. If neither side led evidence, B keeps the land. So A, who claims it, must prove his case. Apply this test to every fact-based question.

The law also helps by presumptions. Section 2(1) separates two kinds. Where the Act says the court may presume a fact, it has a discretion. It may regard the fact as proved unless and until it is disproved, or it may call for proof of it. Where the Act says the court shall presume a fact, it must regard the fact as proved unless and until it is disproved. Conclusive proof is different. Once one fact is proved, the court regards the other as proved and does not allow evidence to disprove it.

Some sections place the burden on a special person. Section 108 puts on the accused the burden of proving that his case falls within a General Exception of the Bharatiya Nyaya Sanhita, 2023, or any special exception or proviso, and the court shall presume the absence of such circumstances. Section 113 says that where the question is whether a person who is shown to be in possession of a thing is its owner, the burden of proving that he is not the owner is on the person who affirms that he is not. Section 118 requires the court to presume dowry death once cruelty or harassment for dowry soon before death is shown. Section 120 requires a presumption of absence of consent in a rape prosecution once intercourse is proved and the woman states in evidence that she did not consent.

Estoppel is a rule of evidence that bars a person from denying a thing. If you, by your declaration, act or omission, intentionally led another person to believe something was true and to act on that belief, you cannot later deny its truth against that person or his representative in a suit or proceeding between them. It rests on fairness. This page states the rule in general terms and gives no section number. Learn the section number from the Act itself.

Key rules to remember

General burden of proof: Burden lies on the person who asserts facts on which he wants judgment (Section 104); A person bound to prove a fact is said to carry the burden of proof on it.
Test for who bears the burden: Burden lies on the party who would fail if no evidence were given on either side (Section 105); Use this as the first test in every problem. Illustration: where execution of a bond is admitted and the defendant pleads fraud, the burden is on the defendant.
Accused and exceptions: Burden of proving a General Exception, special exception or proviso is on the accused; the court shall presume its absence (Section 108); The prosecution still proves the offence. The accused proves only the exception he pleads.
Ownership of possessed thing: Where a person is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner (Section 113); The burden of proving non-ownership lies on the person who says the possessor is not the owner.
May presume: Court may regard fact as proved unless and until disproved, or may call for proof (Section 2(1)(h)); The court has a discretion between the two courses.
Shall presume: Court shall regard fact as proved unless and until it is disproved (Section 2(1)(l)); Mandatory: the court must treat the fact as proved until it is disproved. Conclusive proof under Section 2(1)(b) is different, as no evidence is allowed to disprove the fact.
Special presumptions: Dowry death (Section 118); absence of consent in rape prosecution (Section 120); Both are 'shall presume' provisions with conditions that must first be shown.
Public and private documents: Section 74 lists public documents; all others are private. Section 77 lists how certain official documents are proved; Public documents include acts or records of acts of sovereign authority, official bodies, tribunals and public officers.
Estoppel: Declaration, act or omission that intentionally leads another to believe a thing and act on that belief = the person cannot deny its truth against that other person or his representative; Applies between the parties or their representatives. The rule is stated generally here; learn the section number from the Act.

How to solve Burden of Proof, Presumptions and Estoppel questions

Use this order for any problem or theory question on burden, presumption or estoppel.

1Read the facts and list what each side must establish. Name the fact in dispute.
2Apply Section 105: who would fail if no evidence were given? That person has the burden. Quote Section 104 for the basic rule.
3Check for a special section. Is the accused pleading an exception (Section 108)? Is a person in possession (Section 113)? Is it dowry death (Section 118) or rape (Section 120)?
4If a presumption applies, check its wording. Is it 'may presume' or 'shall presume'? Check that the triggering fact is shown, such as cruelty soon before death.
5State what the presumption does. For 'shall presume', the court regards the fact as proved unless and until it is disproved, so the other side must lead evidence to disprove it. For 'may presume', the court may instead call for proof.
6For documents, classify as public or private under Section 74, then state how it is proved (Section 77 for the listed official documents).
7For estoppel, test the elements: a declaration, act or omission by the person; an intentional leading of the other to believe a thing and act on that belief; and parties who are the same or their representatives.
8Write a clear conclusion that names the party carrying the burden and the likely result.

Quickest way: Who loses if nobody leads evidence?

When to use it: Use this when you have only a few minutes for a short problem on burden of proof.

Ask: if both sides stayed silent, who loses? Write 'Under Section 105, the burden is on X.'
Scan for a special rule: accused pleading an exception, possession, dowry death or consent.
Add the word 'rebuttable' for any 'shall presume' provision.
Close with one line of conclusion: who must prove what, and the result.

Common mistakes in Burden of Proof, Presumptions and Estoppel

Saying the burden always lies on the prosecution or the plaintiff.
Students remember the general rule and forget the special sections.
Fix: Apply Section 105 first, then check Sections 108, 113, 118 and 120 for exceptions.
Saying the accused must prove his innocence under Section 108.
The words 'burden on the accused' are read too widely.
Fix: Section 108 covers only the General Exceptions, special exceptions and provisos. The prosecution must still prove the offence.
Treating a 'shall presume' provision as final and unrebuttable.
The word 'shall' feels like a command to convict.
Fix: Under Section 2(1)(l) the court regards the fact as proved unless and until it is disproved. Only conclusive proof bars evidence to disprove the fact.
Applying the dowry death presumption without the triggering facts.
Students jump to the presumption straight away.
Fix: First show that soon before her death the woman was subjected to cruelty or harassment for or in connection with a demand for dowry by that person. Then the court shall presume.
Confusing 'burden of proof' with 'onus of proof' and treating them as identical.
Both words are used loosely, even in judgments.
Fix: The Act speaks of the burden of proof in Sections 104 and 105 and does not use the word 'onus'. In judicial doctrine, the burden of proof is the legal burden that stays with the party, while the onus is the practical duty to lead evidence, which may shift as evidence is given. Present this as a doctrine, in your own words, and not as the text of the sections.
Applying estoppel without a declaration, act or omission that led the other person to believe something.
Students treat any inconsistent statement as estoppel.
Fix: Show that the person's declaration, act or omission intentionally led the other to believe a thing and act on that belief, and that the dispute is between the same parties or their representatives.

Worked examples

Example 1

Meera sues Karan for ₹5,00,000, saying she lent him that sum. Karan denies that any loan was made. Who bears the burden of proof? Would it change if Karan admitted the loan but said he repaid it?

Show the solution

Provision: Section 104 says whoever wants the court to give judgment on facts he asserts must prove them. Section 105 says the burden lies on the person who would fail if no evidence were given on either side.
First case: if no evidence were led, Meera's claim would fail because nothing shows a loan. So the burden of proving the loan is on Meera.
Second case: Karan admits the loan but says he repaid it. If no evidence were led, Meera would succeed, as the loan is admitted and repayment is not proved. So the burden of proving repayment shifts to Karan. This follows the logic of the bond illustration to Section 105.
The burden of proof on the whole case does not move on its own. What changes is which fact is in dispute and who must prove it.

Answer: If Karan denies the loan, the burden is on Meera (Sections 104 and 105). If he admits the loan and pleads repayment, the burden of proving repayment is on Karan.

Example 2

Ravi is charged with causing the death of Sohan. Ravi says that when he did the act he was, because of unsoundness of mind, unable to know its nature. The prosecution says it is for the prosecution to disprove this. Decide who bears the burden.

Show the solution

Provision: Section 108 puts on the accused the burden of proving circumstances that bring the case within a General Exception of the Bharatiya Nyaya Sanhita, 2023 or a special exception or proviso. The court shall presume the absence of such circumstances.
Facts: Ravi pleads unsoundness of mind, which is a General Exception. The Section 108 illustration deals with this plea in a murder case.
Analysis: the prosecution must still prove the offence, that is, that Ravi caused the death. The prosecution is not required to disprove the exception. The court presumes there are no circumstances that bring the case within the exception until Ravi shows otherwise.
Conclusion on rebuttal: the presumption is rebuttable. Ravi must prove the plea.

Answer: The burden of proving unsoundness of mind is on Ravi under Section 108. The prosecution's burden to prove the offence remains, but it need not disprove the exception.

Exam tips

Begin every answer with the section: 'Under Section 105, the burden lies on the person who would fail if no evidence were given.' Examiners look for this first.
For problems, give the provision, the facts, then a clear conclusion. Name the party who carries the burden in the last line.
Learn the exact wording of 'may presume' and 'shall presume' from Section 2(1), and the example sections 108, 113, 118 and 120.
Use the current Act. Write Bharatiya Sakshya Adhiniyam, 2023 and Bharatiya Nyaya Sanhita, 2023, not the Evidence Act or IPC, except to contrast.
In estoppel answers, state the rule and its elements: a declaration, act or omission; intentional belief and action by the other person; and the same parties or their representatives. Add one short example from business life.

Practice questions from Law relating to Evidence

Burden of Proof, Presumptions and Estoppel: frequently asked questions

What is the difference between burden of proof and onus of proof?

The Act speaks of the burden of proof in Sections 104 and 105: the duty on a party to prove the facts he asserts. The word 'onus' is not used in those sections. In judicial doctrine, onus is the practical duty to lead evidence at a given stage, and it can shift between the parties as evidence is given. Write this in your own words as a doctrine.

Who bears the burden of proof under the Bharatiya Sakshya Adhiniyam, 2023?

Under Section 105 it is the person who would fail if no evidence at all were given on either side. Section 104 adds that the person who asserts facts must prove them. Special sections such as 108 and 113 give exceptions.

What is the difference between 'may presume' and 'shall presume'?

Under Section 2(1)(h), with 'may presume' the court has a discretion. It may regard the fact as proved unless and until it is disproved, or it may call for proof. Under Section 2(1)(l), with 'shall presume' the court must regard the fact as proved unless and until it is disproved. Conclusive proof under Section 2(1)(b) is different, as no evidence may be given to disprove the fact.

How are public documents defined for the exam?

Section 74 treats acts or records of acts of sovereign authority, official bodies, tribunals and public officers of India or a foreign country as public documents. It also includes public records kept in any State or Union territory of private documents. All other documents are private. Section 77 then lists how certain official documents may be proved.

Does estoppel apply against everyone?

No. Estoppel works in a suit or proceeding between the person who made the declaration, act or omission and the person he led to believe and act on it, or their representatives. It does not operate in favour of a stranger to that dealing. Show in your answer how the person's conduct led the other to believe and act.