BSA Section 109: Burden of Proving a Fact Especially Within Knowledge (Evidence Act 106 Mapping) (2026)
What Section 109 of the Bharatiya Sakshya Adhiniyam (BSA) says: when a fact is especially within the knowledge of one person, the burden of proving it lies on that person. It carries forward Section 106 of the old Indian Evidence Act. Last verified October 2026.
Explainer · Evidence Law · BSA
Section 109 of the Bharatiya Sakshya Adhiniyam (BSA), the new evidence law in force since 1 July 2024, deals with a special kind of burden of proof. When a fact is especially within the knowledge of one person, the burden of proving it lies on that person. It replaced Section 106 of the Indian Evidence Act. If you still look up "Section 106 of the Evidence Act", this is the provision you now need. It is a narrow but powerful rule, often used where only the accused can know a particular fact. This explainer sets out what Section 109 covers, how it fits with the general burden rules, how it maps to the old law, and what changed. Last verified October 2026.
- What it is: Section 109 of the BSA places the burden of proving a fact especially within a person's knowledge on that person.
- Old section: it carries forward Section 106 of the Indian Evidence Act, 1872.
- Not the general rule: the general burden of proof is Section 104 of the BSA (old Section 101); whom it lies on is Section 105.
- Limit: it supports the main burden, it does not reverse the presumption of innocence. In force since 1 July 2024.
01The number and the mix-up
The burden of proof rules were renumbered in the BSA. People sometimes treat Section 109 as the general "burden of proof" rule. It is not. The general rule, that whoever wants a court to act on a fact must prove it, is now Section 104 of the BSA (old Section 101), and the rule on whom the burden lies is Section 105 (old Section 102).
Section 109 is the special rule for a fact that is especially within one person's knowledge. It carries forward Section 106 of the old Act. Read it as the narrow exception, not the general rule.
02What Section 109 says
Section 109 of the BSA provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon that person.
The rule in one line
If only one person can really know a fact, the law asks that person to prove it, rather than forcing the other side to prove something they cannot reach.
The section carries illustrations. One is that where a person does an act with some intention other than the one the act suggests, the burden of proving that intention is on them. Another is that a person charged with travelling on a railway without a ticket bears the burden of proving they had one.
03How it fits the general burden rules
The general position is that the prosecution or the plaintiff must prove its case. Section 109 does not reverse that. It is a limited rule that applies to a specific fact which lies especially within one party's knowledge.
So in a criminal case, Section 109 does not shift the main burden to the accused. The prosecution still has to prove guilt. But for a narrow fact that only the accused can know, the court may call on the accused to explain. Courts read this rule carefully so it does not swallow the presumption of innocence.
04The illustrations and limits
The railway-ticket illustration shows the logic well. The railway cannot easily prove a passenger had no ticket, but the passenger can easily prove they had one. So the burden on that fact sits with the passenger.
The limit is that the fact must be especially, not just conveniently, within the person's knowledge. A fact the other side can also prove by ordinary means is not caught. The rule supports the main burden, it does not replace it.
05Old to new: Evidence Act 106 to BSA 109
Section 106 of the Indian Evidence Act is now Section 109 of the BSA. The wording is carried over without change of substance. Chapter VII renumbered the burden provisions without rewriting them.
| Point | Old law (Indian Evidence Act) | New law (BSA) |
|---|---|---|
| Burden of proof (general) | Section 101 | Section 104 |
| On whom burden of proof lies | Section 102 | Section 105 |
| Fact to be proved to make evidence admissible | Section 104 | Section 107 |
| Burden of fact especially within knowledge | Section 106 | Section 109 |
Reading the mapping together avoids two mistakes: citing the old number in a new matter, and treating Section 109 as the general burden rule when the general rule is Section 104.
06What changed
The substance did not change. The rule, the illustrations, and the careful judicial limits all carry over, so the case law on Section 106 still guides how Section 109 is read. The change is the section number and the renumbering of the burden chapter.
The practical point: in a matter on or after 1 July 2024, cite Section 109 of the BSA for a fact especially within a person's knowledge, and Section 104 for the general burden. In an older matter, the citations stay Sections 106 and 101 of the Evidence Act. This is an evidence rule, so it has no punishment of its own.
07Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Section 109 is argued most in cases built on circumstantial evidence, where the court asks the accused to explain a fact that only they can know, and how far judges push that without diluting the main burden shifts from case to case. Claw carries more than 30 crore judgments, with Supreme Court rulings from 1950 and High Court rulings from 1990, and returns results in under 5 seconds. It tracks cases, orders and hearings across 9,102 courts, benches and forums, so you can see how Section 109, or the old Section 106, has been read and follow a live matter by party or advocate name.
Claw does not use your case documents to train its AI models. Set up a free Claw account to collect the leading authorities on this special burden and follow a live trial, and for research beyond Section 109 start at the case search across Indian courts hub.
08Sources and further reading
- India Code (official text of the BSA, 2023): indiacode.nic.in
- PRS Legislative Research (BSA overview and comparison): prsindia.org
- Section 109, BSA (bare text): devgan.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.
09Frequently asked questions
What is Section 109 of the BSA?
Section 109 of the Bharatiya Sakshya Adhiniyam, 2023 provides that when a fact is especially within the knowledge of any person, the burden of proving that fact is on that person. It restates Section 106 of the old Indian Evidence Act.
Is Section 109 the general burden of proof rule?
No. The general rule is Section 104 of the BSA (old Section 101), and the rule on whom the burden lies is Section 105 (old Section 102). Section 109 is the narrow rule for a fact especially within a person's knowledge.
Which old section does BSA Section 109 replace?
It replaces Section 106 of the Indian Evidence Act, 1872. The burden chapter was renumbered, so the old Section 106 is now Section 109 of the BSA.
Does Section 109 shift the burden onto the accused?
Only for a narrow fact that is especially within the accused's knowledge. It does not reverse the main burden on the prosecution to prove guilt, and courts read it so it does not dilute the presumption of innocence.
Does old case law on Section 106 still apply?
Yes, in large part. Because the rule and illustrations are carried over, judgments decided under Section 106 of the Evidence Act still guide how Section 109 of the BSA is read.
Can I find judgments on Section 109 in Claw?
Yes. Claw lets you search 30 crore+ judgments in under 5 seconds for how the special burden under Section 109, or the old Section 106, has been applied, and tracks cases, orders and hearings across 9,102 courts, benches and forums by party or advocate name. It researches and tracks the matter but does not give legal advice.