Introduction
Every provision covered so far in this chapter — a landlord's rent receipt, a missing employee presumed dead, a father's burden to defend a gift to his son, an accused's plea of insanity, a wife's death staged as a snake bite — ultimately traces back to one sentence. Section 104 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is that sentence: the opening provision of Chapter VII, "Of the Burden of Proof," and the root every other rule in the chapter grows out of.
This article covers Section 104's text and its own two illustrations — one criminal, one civil — and closes out this project's coverage of the entire chapter.
104. Burden of proof.
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.
Illustrations.
(a) 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.
(b) 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 104 reproduces Section 101 of the Indian Evidence Act, 1872 without any wording change, confirmed against two independent bare-act sources.
The Maxim Behind the Statute
Section 104 codifies one of the oldest principles in the law of evidence, sometimes stated in its Latin form: ei incumbit probatio qui dicit, non qui negat — the burden of proof lies on the one who asserts, not the one who denies. Whoever wants a court to act — to punish someone, to award them property, to enforce a right — is the one who must supply the facts justifying that action. A court does nothing on its own initiative; it only ever responds to what is proved before it, and Section 104 fixes whose job it is to do that proving.
Reading the Chapter Backward, From the Root
Having covered Sections 120 down through 105 in earlier articles, Section 104's role becomes clear only in hindsight: Section 105 refines it into the "silence test" for an entire proceeding; Section 106 breaks it down fact by fact; Sections 107 through 111 apply it to specific evidentiary gateways and presumptions of life and death; Section 108's exceptions rule sits it against an accused's chosen defence; Sections 112 through 114 apply it to specific relationships of trust, possession, and confidence; and Section 115 through 120 extend it into specialised presumptions the legislature has built on top of the same root idea. Every one of those provisions is a variation on Section 104's single sentence, adapted to a recurring factual pattern the law has decided is common enough to deserve its own express rule.
| Illustration | Who Wants Court Action | What They Must Prove |
|---|---|---|
| (a) Criminal | A, seeking B's punishment | That B actually committed the crime |
| (b) Civil | A, seeking title to land held by B | The disputed facts entitling A to the land |
Key Takeaways
- Section 104 BSA carries forward Section 101 IEA verbatim, both illustrations intact, confirmed unchanged — the foundational rule underlying the entire chapter.
- The core principle: whoever wants a court to act on a set of facts must prove those facts exist — the burden lies with the one who asserts, not the one who denies.
- The chapter's remaining sections (105 through 120) are all specific refinements of this same root rule, applied to particular recurring situations — relationships, possession, death, exceptions, and specialised presumptions.
- Section 104 is rarely the deciding provision in reported cases precisely because it is so fundamental; disputes typically turn on one of its more specific descendants instead.
- The same criminal/civil pairing in the Act's own illustrations captures the rule's full reach — it governs a murder prosecution and a land dispute identically.
Conclusion
Section 104 is where Chapter VII — and this project's coverage of it — both begin and end. Every burden-shifting rule this chapter contains, from a landlord's rent receipt to a missing person's seven-year silence, is ultimately just this one sentence applied to a specific, recurring problem the law decided was common enough to spell out expressly. With this article, Chapter VII of the Bharatiya Sakshya Adhiniyam, 2023 — all 17 sections, 104 through 120 — is now fully covered. This project's backward progression through the Act continues next with Chapter VI.