Section 105 of the Evidence Act, 1872—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 Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations
(a) A, an 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 the self- control.
The burden of proof is on A.
(c) Section 325 of the Indian Penal Code (45 of 1860), provides that whoever, except in the case provided for 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.
Comments
Plea of self defence
(i) The burden of establishing the idea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record;
Riaz v. State of Chattisgarh, AIR 2003 SC 976
(ii) When the prosecution has established its case, it is incumbent upon the accused under section 105 to establish the case of his private defence by showing probability;
Samuthram alias Samudra Rajan v. State of Tamil Nadu. (1997) 2 Crimes 185 (Mad).
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