Introduction
A theft trial often turns into two separate arguments running in parallel. The prosecution says the accused confessed to a witness. The accused says he was somewhere else entirely when the theft happened. Neither claim proves itself — and neither side gets to sit back and demand the other disprove it. Section 106 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the rule that makes each side responsible for its own assertion.
This article covers Section 106's text and its own illustration, and a Supreme Court ruling that shows exactly how this rule plays out when an accused raises an alibi.
106. Burden of proof as to particular fact.
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.
Illustration. A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
Section 106 reproduces Section 103 of the Indian Evidence Act, 1872 without any wording change, confirmed against two independent bare-act sources.
| Who Wants the Court to Believe It | What They're Asserting | Who Must Prove It |
|---|---|---|
| A (prosecution) | B admitted the theft to C | A |
| B (accused) | He was elsewhere at the relevant time | B |
Fact-by-Fact, Not Whole-Case
Section 106 works at a finer grain than the burden of an entire lawsuit or prosecution. It doesn't decide who wins overall — it decides, fact by fact, who has to substantiate whichever specific claim they're personally relying on. A prosecution can carry the overall burden of proving guilt while an accused simultaneously carries the narrower burden of substantiating a specific fact they've chosen to put in issue, like an alibi. The two burdens exist side by side without contradicting each other.
Dudh Nath Pandey v. State of U.P.: The Alibi Half of the Illustration
In Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the accused — convicted of shooting a man who had opposed his relationship with the victim's sister — raised a plea of alibi. The Supreme Court reaffirmed that under Section 103 IEA (now Section 106 BSA), an accused who raises an alibi carries the burden of proving it: showing it was physically impossible for him to have been at the crime scene because he was demonstrably elsewhere at the relevant time. The Court also made clear that an alibi and the prosecution's case are assessed on their own separate footing — a weak or unproven alibi does not, by itself, strengthen the prosecution's case, just as the prosecution's case does not need to be independently disproved by the alibi to be doubted. Each factual claim rises or falls on its own proof.
Key Takeaways
- Section 106 BSA carries forward Section 103 IEA verbatim, illustration included, confirmed unchanged.
- The burden of proving any particular fact lies on whoever wants the court to believe it exists — not on the opposing party to disprove it.
- This operates fact-by-fact, alongside (not instead of) the overall burden governing the whole case, such as the prosecution's burden to prove guilt.
- Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, confirms an accused raising an alibi must prove it was physically impossible for them to be at the crime scene — and that the alibi and the prosecution's case are each judged on independent footing.
- A failed alibi does not itself prove guilt; it only leaves that specific defence fact unproven.
Conclusion
Section 106 keeps evidentiary responsibility precisely aligned with whoever is actually making a claim, one fact at a time, rather than letting either side simply assert something and wait for the other to disprove it. Dudh Nath Pandey shows this playing out in one of the most common defence strategies in criminal trials — the alibi — without disturbing the prosecution's separate, unchanged burden on the case as a whole. Chapter VII's descent through the burden-of-proof provisions continues next at Section 105.