Introduction
Two men killed someone. One claimed sudden, overwhelming provocation. The other claimed he did not know what he was doing at all. Both defenses ultimately failed or succeeded on the strength of the same rule — the one now codified as Section 108 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which decides who must prove what once an accused reaches for an exception to ordinary criminal liability.
This article covers Section 108's text and its three built-in illustrations, the two landmark Supreme Court rulings that defined how the provision actually works — one on provocation, one on insanity — and the standard of proof an accused must actually meet.
108. Burden of proving that case of accused comes within exceptions.
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 Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part of the said Sanhita, 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. The burden of proof is on A.
(c) Section 117 of the Bharatiya Nyaya Sanhita, 2023 provides that whoever, except in the case provided for by sub-section (2) of section 122, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 117. The burden of proving the circumstances bringing the case under sub-section (2) of section 122 lies on A.
Section 108 reproduces Section 105 of the Indian Evidence Act, 1872 with its operative rule and first two illustrations entirely unchanged. Illustration (c) is updated only in its cross-references — IPC Section 325 (grievous hurt) and Section 335 (the grave-and-sudden-provocation exception) become BNS Sections 117 and 122(2) respectively, confirmed by direct comparison of both provisions' text. The underlying rule is identical; only the renumbering is new.
K.M. Nanavati v. State of Maharashtra: When Provocation Fails
In K.M. Nanavati v. State of Maharashtra, 1962 AIR 605, a naval officer, after his wife confessed to an affair, drove to her lover's home and shot him dead. Nanavati invoked the grave-and-sudden-provocation exception — precisely illustration (b)'s scenario — placing the burden on himself, under Section 105 IEA, to establish it. The Supreme Court held that the confession alone, or whatever happened afterward in the victim's bedroom, did not amount to provocation grave and sudden enough to reduce murder to culpable homicide, chiefly because roughly three hours passed between the confession and the killing — time enough, the Court reasoned, for passion to cool and for premeditation to have taken over. Nanavati failed to discharge the burden Section 105 (now Section 108) placed on him, and his murder conviction stood.
Dahyabhai Chhaganbhai Thakker v. State of Gujarat: The Insanity Defence and Its Real Standard
In Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, an accused charged with murdering his wife raised illustration (a)'s exact defence: unsoundness of mind at the time of the act. The Supreme Court clarified something easy to get wrong — that there is no real tension between the prosecution's unchanging burden to prove guilt beyond reasonable doubt and the accused's separate burden, under Section 105 IEA, to establish the insanity exception. The two operate on different standards entirely: the accused need only establish the defence on a preponderance of probability, not beyond reasonable doubt, and the relevant moment to assess is the accused's mental state at the time the act was committed, not before or after.
| Nanavati (Provocation) | Dahyabhai (Insanity) | |
|---|---|---|
| Exception claimed | Grave and sudden provocation | Unsoundness of mind |
| Key factual question | Was there time to cool off before acting? | Was the accused incapable of knowing the act's nature at that moment? |
| Standard the accused had to meet | Preponderance of probability | Preponderance of probability |
| Outcome | Defence failed — conviction upheld | Clarified the standard; case decided on the facts of insanity actually shown |
Applying Illustration (c) Directly
A is charged under Section 117 BNS with voluntarily causing grievous hurt. A claims the injury was inflicted on grave and sudden provocation, which Section 122(2) BNS punishes far more leniently than an ordinary grievous-hurt charge. Under Section 108, it is not the prosecution's job to rule out provocation before securing a conviction under Section 117 — it is A's job to affirmatively bring the case within Section 122(2)'s lighter provision, exactly as illustration (c) states, and exactly as the general framework Nanavati and Dahyabhai both apply.
Key Takeaways
- Section 108 BSA carries forward Section 105 IEA's rule and first two illustrations unchanged; illustration (c) only updates IPC section numbers (325, 335) to their BNS equivalents (117, 122(2)).
- Once an accused invokes any General Exception, special exception, or proviso, the burden of proving it is on them — and the Court presumes its absence until then.
- K.M. Nanavati v. State of Maharashtra, 1962 AIR 605, shows the provocation exception failing on its facts: roughly three hours' delay defeated the "sudden" element.
- Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563, confirms the accused's burden on an exception is met on a preponderance of probability, not beyond reasonable doubt — and does not conflict with the prosecution's unchanged, higher burden on the offence itself.
- The same Section 108 framework covers every General Exception and special proviso in the Bharatiya Nyaya Sanhita, not just insanity and provocation.
Conclusion
Section 108 draws a clean line: the prosecution must still prove the offence beyond reasonable doubt, but once an accused reaches for a defence built into the criminal law itself, establishing that defence becomes their job, on the lighter preponderance standard Dahyabhai confirms. Nanavati shows how easily that burden can go undischarged even on genuinely emotional facts. Chapter VII's descent through the burden-of-proof provisions continues next at Section 107.