Indian Evidence Act, 1872 · Chapter VII: Of the Burden of Proof
Section 105: Burden of proving that case of accused comes within exceptions
The Indian Evidence Act, 1872 was repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 from 1 July 2024. It still applies to offences and proceedings from before that date.
In plain words
When a person is accused of an offence, the burden of proving circumstances bringing the case within the General Exceptions in the Indian Penal Code, or any special exception or proviso in it or the law defining the offence, is on them, and the court must presume such circumstances are absent.
Example: A, accused of murder, says he did not know the nature of the act because of unsoundness of mind. A must prove it.
A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.
Official 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.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. 1. See, in the Act as published in Gazette of India, 1872, Pt. IV, p. 1 there is no illustration (b).
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code (45 of 1860) provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.
Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.
Source: India Code (Legislative Department), the text of the Act as it stood before its repeal. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here.
Supreme Court judgments citing the section 105
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Chunni Bai v. State of Chhattisgarh
Whether the accused at the time of commission of crime was incapable of making conscious and informed decision or was suffering from certain mental incapacity or unsoundness of mind; Whether a benefit of doubt may be…
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Surender Singh v. State (NCT of Delhi)
Correctness of the order of the High Court upholding the conviction and sentence of the appellant for offences under ss. 302 and 307 IPC .
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Anees v. The State Govt. of NCT
Murder of appellant-accused’s wife in their house in which the appellant, deceased and their 5 year old daughter lived. s.106, Evidence Act, 1872 was invoked and the appellant was convicted u/s.302, IPC for the murder.…
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Periyasamy v. The State Represented by the Inspector of Police
Whether the High Court justified in affirming the judgment of trial court convicting and sentencing the accused appellant, (A-1), for the offence punishable under sections 302 & 307 of Penal Code, 1860 and accused…
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M/S Iveco Magirus Brandschutztechnik Gmbh v. Nirmal Kishore Bhartiya & Anr
(i) Whether, while considering a private complaint alleging defamation, the Magistrate before summoning the accused ought to confine himself to the allegations forming par t of the petition only or he may, applying his…
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