Section 105 of the Indian Evidence Act, 1872


(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

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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.

The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of I860), 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.



Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is interested to take benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws. The general principles relating to burden of proof are: (i) the accused is always presumed to be innocent, and (ii) it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge its initial traditional burden establishing the complicity of the accused. Under section 105 the burden lies on the accused.

Once the prosecution has been successful to prove the guilt beyond reasonable doubt that the accused had committed offence. It is immediately shifted to the accused who, if he so desires, may set up a defense of bringing his case within general exceptions of I.P.C. or within special exception or proviso contained in any part of the same code or any other law.

For example, in a murder case the prosecution proved that it was a case of murder under section 300, I.P.C. The accused alleged that by grave and sudden provocation he was deprived of the power of self-control. The burden of proof lies on the accused. Similarly, an accused of murder alleged that by reason of unsoundness of mind he did not know the nature of act what he had done. The burden lies on the accused.

It is prescribed rule of Section 105 that the burden is on the accused to prove the existence of circumstances bringing his case within any of the exceptions. The said rule does not whittle down the axiomatic rule of burden of proof that the prosecution must prove that the accused has committed the offence charged against them.

Standard of proving defense:

Under section 105 if an accused claims for the benefits of exceptions the burden of proving the case must fall within exception and it lies upon him. But the onus of proof by the accused is not exactly the same as that of the prosecution. An accused is not required to adduce leading evidence to prove his case beyond reasonable doubt. “The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution is required to prove in a criminal charge.

It is sufficient if he is able to prove his case by the standard of preponderance of probabilities envisaged by Section 105 of the Evidence Act.” Thus, the law requires that the onus of proof placed on the accused claiming the benefit of exceptions and must be tested by the standard of “preponderance of probability.” While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability.

The Supreme Court has made it clear if the evidence is not sufficient to discharge the burden under section 105 it may raise a reasonable doubt as regards the one or other of the necessary ingredients of the offence itself in which case the accused would be entitled to be acquitted.

In Pratap v Stare of U.P. where the probability that the accused had caused death in self-defense was held to be sufficient even though he had not taken his defense in the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the general exceptions can be discharged by showing a preponderance of probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who sets up the plea of self-defence, and in the absence of proof, it is not possible for the court to presume the truth of the plea of self defence.

But, in a case of robbery and murder the opportunity of the accused to commit the crime was proved by circumstantial evidence. They were found to be in possession of the stolen articles, and they had no explanation for their possession. An adverse inference can be drawn against the accused of murder and robbery.’ While the prosecution is required to probe the case beyond reasonable doubt, the accused can discharge the onus by establishing a mere preponderance of probability.

The onus of an accused person will be compared with the oneness of a party in a civil case and just as in a civil proceedings the court trying an issue makes its divisions by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probabilities is established by the evidence led by him. Even, where the accused has not pleaded exception the accused cannot be denied the benefit of exceptions. When the right of private defense is pleaded, the burden of the accused only shifts after the prosecution has discharged its initial burden of proving its case beyond reasonable doubt. Consequently, the weakness in the defense case would not ensure advantage of the prosecution. “Which is still to discharge its original onus that never shifts?”

Where an accused person in his statement under section 313, Cr. PC raised the defense of unsoundness of mind but the circumstances indicated that he acted under grave and sudden provocation. It was held that the accused could not be denied the benefit of the defense of Exception 1 to Section 300 of I.P.C.

Proof of innocence:

In criminal trial it is a general principle that a person accused of crime is always presumed to be innocent and the prosecution on whom burden lies is to prove the guilt of the accused beyond reassemble doubt. In criminal trial the degree of probability of guilt has been very much higher. Though this standard is a higher standard, there is no absolute standard.

No man can be convicted of an offence where the theory of his guilt is no more likely than the theory of his innocence. “If there is the slightest reasonable or probable chance of innocence of an accused, the benefit of it must be given to him.” Where the presumption of innocence is reversed by a statutory provision, the burden is on the accused person. Where an assault rifle is found in innocent possession of a person, the Supreme Court held that such burden should not be heavy as that of the prosecution but even so should be greater probability.