Raising and Proving the Plea

In one line

On how the plea of private defence is raised and how it is proved: the accused bears the burden of proving private defence, but the standard is a preponderance of probabilities and not proof beyond reasonable doubt, and he may discharge it out of the prosecution's own evidence without pleading the defence or leading any of his own.

The provision

Section 108 of the Bharatiya Sakshya Adhiniyam 2023. 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 Sanhita or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Private defence is in the General Exceptions chapter of the Sanhita, so section 108 applies to it in terms. Two things follow at once, and they pull in opposite directions.

The burden is on the accused. Not an evidential burden only. The section says the burden of proving the existence of the circumstances.

The court starts by presuming against him. The closing words are not decorative. Until something is placed before it, the court is required to presume the absence of the circumstances that would make out the defence.

Against that starting point, everything the cases have done is to make the burden bearable.

Proposition one: the standard is preponderance

Salim Zia v. State of Uttar Pradesh, AIR 1979 SC 391, is the sentence Indian courts quote. The appellant's father had leased paddy land to the deceased; the prosecution case was that the appellant came to the field with a gun during the harvest and shot him dead over a dispute about the share of the produce, while the appellant's own report to the police said the deceased had been stealing paddy and had fired a revolver at him first. The Sessions Judge acquitted him on his version. The High Court reversed and convicted, and the Supreme Court dismissed his appeal, because the medical evidence showed that the injuries on his own person were not gunshot injuries at all but had been fabricated to look like them.

In the course of dismissing it the Court laid down the standard: the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution; while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities, either by laying a basis for that plea in the cross examination of the prosecution witnesses or by adducing defence evidence.