India is correctly classified as a common law nation which has embraced the adversarial system of trials. In criminal cases, the prosecution and the accused are represented by their advocates. It is for them to call for aid and impart all the information in support of their parties before another legally experienced person, the trial Judge, who is the fulcrum of the criminal justice mechanism.
In case of both the adversarial and the inquisitorial mechanism of the trial, it is the trial Judge who has been rendered with immense authorities to oversee the trials correctly. The Public Prosecutor in the adversarial system is statutorily authorized to represent the prosecution while the defence counsel is authorized to do so on being permitted by the Judge. Also, the defence lawyer may be permitted to put only such questions for the examination of the witnesses as may be allowed by the trial Judge. This is also the position under the inquisitional system and it is generally asserted by both the systems that there is the presumption of innocence and the burden of proof is on the person who asserts the statement. Under the adversarial system, it is usually the prosecutor who makes the accusation and as such, it is for him to discharge the burden of proving the accusation beyond a reasonable doubt. The defence is also required to prove the facts if it has asserted them. Thus, both the systems have quite similar characteristics and norms of the procedure. However, it is often argued that under the adversarial system the burden of the prosecution is very heavy and this indirectly helps the defendant. The practice adhered by the officials in the adversarial mechanism makes the presumption of innocence really firm[i].
The Law of Evidence is a critical piece of legislature which supplements the Court’s proceedings. Evidence is the material that establishes a claim or an assertion and enables the Court to come to a just decision. Oral or documentary evidence should be presented before the Court to establish a fact or disapprove a fact of respective both parties. The rule of evidence requires the respective parties to place the best evidence in hand to establish their assertion beyond the reasonable doubt. The evidence law can be regarded as the law of the forum or in other words Lex fori.
The concept of burden of proof is described in section 101 under Indian Evidence Act, which defines that when a person is obligated to establish the existence of a fact, the onus to render evidence for the same lies upon him. Chapter VII of the evidence act talks about the provisions regarding the burden of proof. The term “burden of proof” isn’t described in the act, although it is the fundamental postulate of criminal law that the presumption of innocence is with the accused person except proven otherwise[ii].
Principle of Burden of Proof
The burden or responsibility to prove certain things is known as the burden of proof. In a case, many facts are alleged and they need to be proved before the court and based on this the court can give its judgment on such facts. The burden of proof is the duty on a party to prove such facts in such standard of assurance so that the facts are clear to the judge. For example, in the case of murder, the prosecution alleges that all the conditions constituting a murder are fulfilled. All such circumstances are facts in issue and there is a duty on the part of the prosecution to establish their existence. This duty is known as the burden of proof. In a broad perspective, every side has to establish a fact that goes in his support or contrary to his opponent, this duty is nothing but the burden of proof[iii].
The doctrine of Burden of proof is founded on the concept known as onus probandi (burden of proof) and factum probands (proving a fact). While the burden of proof remains constant, the onus for the same shifts from one party to another. The facts that must be established are the ones which are not plain in character. In the case of Jarnail Singh v. State of Punjab [SLP CrL No. 2872 of 2008] in which it was held that if the prosecution does not cite the acceptable evidence to clear the burden, they cannot rely upon evidence cited by the accused person in favour of their defence. It is described under section 101 of the evidence act as “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”.
Section 102
The definition of section 102 is “on whom the burden of proof lies. —The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”.
This section seeks to locate the party, on whom the burden of proof lies, the burden of proof lies upon the party whose viewpoint will fail if no evidence is presented by any of the parties. The burden of proof lies on the party who asserts a fact rather than the party who repudiates it. In the case of insanity or unsoundness of mind, the law presumes soundness until proven vice-versa.
Section 103
The 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.
The section states that the obligation of the onus of proof on the party that wants the Court to accept and act upon the presence of a fact. This principle stays unaffected by the fact that a particular fact being asserted is negative or affirmative.
This section is known as the principle of the plea of alibi which means that the term ‘Alibi’ is a Latin term which implies ‘elsewhere’ or ‘somewhere else’. Alibi is used as a defence in criminal proceedings by the accused against the commission of the alleged offence. The accused makes this request in the court so that he or she can establish his or her guiltlessness that at the time of the commission of the crime, he or she was in some other location. In general, the plea of alibi mentions that the accused was not materially present at the time of commission of the crime; he was at some other location.
Section 104
The definition of section 104 is “The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence”.
This section implies that when the admissibility of one fact relies upon the presence and admissibility of another fact, the party which wishes to establish it will rely upon the fact after the fact admitted by the court.
Section 105
Burden Of Proving That Case Of Accused Comes Within Exceptions:
When a person is alleged of any crime, the burden of establishing the presence of conditions bringing the case under any of the General Exceptions enshrined in the Indian Penal Code, or under any certain exception or proviso incorporated in any other part of the same Code, or in any statute describing the offence, is lies upon him, and the Court shall assume the dearth of such circumstances[iv].
This section refers to the exceptions provided to the accused that will serve as the benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws. The general principle requires the Court to presume the innocence of the accused until proven otherwise and it is upon the prosecution to establish the guilt of the accused. Once the guilt is established, the onus then shifts to the accused who can take the defence of general exceptions in I.P.C.
Principle:
Section 105 has a special characteristic. It is only relevant for criminal cases when an accused is keen to utilize the benefit of ‘the general exceptions of the Indian Penal Code or of any of the specific laws. The general postulate regarding the burden of proof are: (i) the accused is always presumed to be innocent, and (ii) it is the prosecution to establish the culpability of the accused. It is only after the prosecution to clear its initial traditional onus establishing the involvement of the accused. As per section 105, the burden is on the accused[v].
For instance, in a murder case, the prosecution established that it was a case of murder within section 300 of I.P.C. The accused asserted that because of the grave and sudden provocation he was divested of the power of self-control. The burden of proof lies upon the accused. Likewise, an accused of the offence of murder alleged that by the justification of unsoundness of mind he was not aware regarding the nature of act what he had done. The burden is on the accused.
It is laid down under section 105 that the burden is on the accused to establish the existence of circumstances which brings his case under any of the general exceptions. The particular rule does not undermine the unquestionable rule of burden of proof that the prosecution must establish that the accused has done the offence charged against him.
Standard of proving the defence
Under section 105 if an accused claim for the benefits of exceptions the burden of proving the case must fall within the exception and it lies upon him. But the burden of proof by the accused is not specifically similar as of the prosecution. An accused is not needed to cite principle evidence to establish his case beyond reasonable doubt. “The evidence act does not envisage that the accused should establish his case with the same accuracy and zeal as the prosecution is needed to prove in a criminal charge.
It is adequate if he is can prove his case by the standard of the predominance of possibilities provided by Section 105 of the Evidence Act.” Thus, the law necessitates that the burden of proof on the accused asserts to claim the favour under general exceptions and must be examined by the standard of “preponderance of probability.” While the prosecution is needed to prove its case beyond a reasonable doubt, the accused can clear his burden by proving a preponderance of probability[vi].
The Supreme Court has made it transparent if the evidence is not adequate to clear the burden as per section 105 it may result in raising a reasonable doubt regarding the one or other of the important aspects of the crime itself in which case the accused would be allowed to be discharged.
In Pratap v State of U.P.[ 1973 AIR 786] where the probability that the accused had caused death in self-defence was held to be sufficient even though he had not taken his defence in the committal proceedings. Again, the apex court observed that the onus of proving that the case comes under any of the general exceptions can be cleared by establishing a preponderance of probability. As per section 105 of the Evidence Act, the burden of proof lies upon the accused, who establish the plea of self-defence, and in the dearth of proof, it is not feasible for the court to believe on the authenticity of the plea of self-defence.
But, in a case of robbery and murder, the opportunity of the accused to commit the crime was proved by circumstantial evidence. They were found to be in possession of the robbed articles, and they had no justification for their possession. A negative assumption can be drawn against the person accused of murder and robbery. While the prosecution has to prove their case beyond a reasonable doubt, the accused can clear the burden by proving preponderance of probability.
The onus of an accused person will be compared with the oneness of a party in a civil case and just as in civil proceedings the court trying an issue makes its divisions by adopting the test of probabilities, so must a criminal court hold that the plea made by the accused is proved if a preponderance of probabilities is established by the evidence led by him. Even, where the accused has not pleaded exception the accused cannot be denied the benefit of exceptions. When the right of private defence is pleaded, the burden of the accused only shifts after the prosecution has discharged its initial burden of proving its case beyond a reasonable doubt. Consequently, the weakness in the defence case would not ensure the advantage of the prosecution.
Where an accused person in his statement under section 313 under Cr.P.C raised the defence of unsoundness of mind but the circumstances indicated that he acted under grave and sudden provocation. It was held that the accused could not be denied the benefit of the defence of Exception 1 to Section 300 of I.P.C.
Presumption of innocence under Evidence Law
In the criminal trial, it is a general postulate that a person accused of an offence is always assumed to be innocent and the prosecution on whom onus lies is to establish the guilt of the accused beyond reasonable suspicion. In a criminal trial, the degree of possibility of guilt has been very much higher. Though this benchmark is a higher benchmark, there is no absolute benchmark.
No individual can be convicted of a crime where the theory of his guilt is no more likely than the theory of his innocence. “If there is the slightest reasonable or probable chance of innocence of an accused, the favour of it must be provided to him.” Where the presumption of innocence is altered by a statutory provision, the onus is on the accused person. Where an assault rifle is found in innocent possession of a person, the apex court observed that such onus should not be excessive as that of the prosecution but even so should be a substantial probability.
Because one can be accused of a crime without being a criminal, a fundamental postulate of justice necessitates that plaintiffs prove their accusations and that the accused be regarded as innocent in the time amid accusation and judgment is delivered. This is called the concept of presumption of innocence.
In the renowned case of Woolmington v. Director of Public Prosecutions [UKHL 1, AC 462 (1936) 25 cr app R 72], this postulate was known as ‘golden thread principle of criminal law’. In the present time, this postulates duly recognised in the criminal law of numerous common law nations such as the United Kingdom, Canada, South Africa, United States of America and India[vii].
Status in India: Existence of both principles
Though not specifically laid down in any statute, the Presumption of Innocence is a well-known postulate of criminal jurisprudence in India. As per section 101 and 106 of the Evidence law of 1872 deals with the burden of proof, however not whether such burden is lies on the Prosecution or Defence. Although, The Indian Judiciary has acknowledged presumption of Innocence within article 20 and 21 of the Constitution. In the landmark case of Maneka Gandhi, the presumption of innocence was observed as the fundamental right of the accused.
Reverse Onus Clauses: Exception to the general rule
While the presumption of the innocence of the accused is an ancient doctrine recognized in common law and observed in Indian law as well, jurists have developed a counter statement to the presumption of innocence wherein, an accused may be presumed guilty at the primary instance, and the burden of proof lies upon defence to establish his innocence or to create suspicion about his guilt. A Reverse onus clause can be described as ‘one that transfers the burden of proof on the accused subsequently when the Prosecution establishes the existence of a radical fact that causes the shift in burden[viii].
Reverse onus clauses under Indian Criminal law
Along with the golden rule, there exist definite kinds of offenses. In such cases, the accused is presumed guilty, in the primary instance, and the onus of proof is transferred onto the accused to give evidence to prove his innocence or to establish reasonable suspicion about his guilt. In our country, the presumption of innocence is rebutted in two cases – firstly, when there is express statutory provision reversing the burden of proof, and secondly when the accused appeals against the judgment of a lower court wherein his presumption is that of guilt and not innocence. The most recognized illustration of a reverse onus clause is Dowry Death. In cases of dowry death, the culpable mental state of the accused is presumed, imposing a presumption of guilt, instead of the usual presumption of innocence. This rebuttal to the presumption in criminal law often creates problems and conflicts in law.
Reasons for incorporating Reverse onus clauses[ix]
Helpful in curbing grave offences:
The law commission report of India in its 47th report recommended that there are certain offences that radically affect and damage society and so for such offences it is essential to dispense with the onus of the prosecution. The offences which the Indian judiciary has recognised as public welfare offences, it has deemed reverse onus clauses to be necessary to prevent such crimes. Dowry death, comes under the second classification of socio-economic crimes. It was introduced as part of the Criminal Law Amendment Act No. 43 of 1986 as the implementation of the 91st Law Commission Report
Deterrent effect:
Such explicit statutory clauses are often framed to deal with serious socio-economic crimes that straightforwardly or indirectly vandalize public welfare. The onus of proof is normally transferred to obtain guilty sentence in such crimes where deterrence considerations are higher. In that light, an example is dowry death. It is considered a grave social offence that affects standards of morality in society, and the deterrence to cruelty on account of dowry demands is justified.
Judicial Convenience:
For reverse onus, it is argued that it becomes more convenient and easier for the Prosecution to prove the basic fact that shifts the burden. In light of the difficulty of the Prosecution to enter private spaces like the home, and conduct investigations, search and seizures, the inconvenience of the Prosecution often becomes greater in criminal cases. For the sake of expediency and judicial economy, the lawmakers take this argument to reverse the burden.
Judicially Valid:
Finally, the stand of Indian judiciary on reverse onus clauses has developed substantially. In the case of KM Nanavati [1962 AIR 605] upheld the basic human right of the accused to be presumed innocent in the trial. This initiated a general debate on the effectiveness of reverse onus clauses in Indian legislation. The position was finally settled P. N. Krishnalal v. Government of Kerala [Appeal civil 565 of 1994, SCR 526] where the court held that the presumption of innocence is not a constitutional guarantee and can be dispensed with by legislative imperatives and action. As reverse onus clauses have been observed constitutionally rational by the Indian courts, the lawmakers don’t dither in its incorporation.
Conclusion
It is clear that the burden of proof on the prosecution is far beyond what is prescribed by the legislature. This is because of the judiciary’s concern that no innocent should be penalized and the accused should utilize all the aids during a trial, this can be interpreted as the punishment imposed is mainly of serious degree.
The postulate of presumption of innocence is enshrined in the criminal law of India and must not be interfered with in unimportant cases and should not be disregarded or compromised unless it is of the greatest necessity to do so.
The issue regarding the presumption of innocence in India, to an extent, stems from the absence of explicit mention of the right in the Constitution. This gives the parliament an unrestrained authority to enforce statutes including reverse burden clauses that infringe presumption of innocence. In my opinion, the Constituent Assembly, even after the discussion on this principle, has erred to not mention it in the Constitution. Article 20 which mentions the fundamental rights of an accused person must additionally contain the principle of presumption of innocence as well; of course, with an exception clause that allows the reversal of burden in case of heinous crimes of socioeconomic nature that impact the well-being of the society at large. A provision that fairly represents the idea of a fair balance between the general interest of the community and the personal rights of an individual must be formulated in this regard.
“The views of the authors are personal“
Frequently Asked Questions
What is the principle behind section 105 of the Evidence Act?
Section 105 has a special characteristic. It is only relevant for criminal cases when an accused is keen to utilize the benefit of ‘the general exceptions of the Indian Penal Code or of any of the specific laws. The general postulate regarding the burden of proof are: (i) the accused is always presumed to be innocent, and (ii) it is the prosecution to establish the culpability of the accused. It is only after the prosecution to clear its initial traditional onus establishing the involvement of the accused. As per section 105, the burden is on the accused.
For instance, in a murder case, the prosecution established that it was a case of murder within section 300 of I.P.C. The accused asserted that because of the grave and sudden provocation he was divested of the power of self-control. The burden of proof lies upon the accused. Likewise, an accused of the offence of murder alleged that by the justification of unsoundness of mind he was not aware regarding the nature of act what he had done. The burden is on the accused.
It is laid down under section 105 that the burden is on the accused to establish the existence of circumstances which brings his case under any of the general exceptions. The particular rule does not undermine the unquestionable rule of burden of proof that the prosecution must establish that the accused has done the offence charged against him.
What is the concept of Reverse onus clauses?
While the presumption of the innocence of the accused is an ancient doctrine recognized in common law and observed in Indian law as well, jurists have developed a counter statement to the presumption of innocence wherein, an accused may be presumed guilty at the primary instance, and the burden of proof lies upon defence to establish his innocence or to create suspicion about his guilt. A Reverse onus clause can be described as ‘one that transfers the burden of proof on the accused subsequently when the Prosecution establishes the existence of a radical fact that causes the shift in burden.
What is meant by the presumption of innocence?
In the criminal trial, it is a general postulate that a person accused of an offence is always assumed to be innocent and the prosecution on whom onus lies is to establish the guilt of the accused beyond reasonable suspicion. In a criminal trial, the degree of possibility of guilt has been very much higher. Though this benchmark is a higher benchmark, there is no absolute benchmark.
No individual can be convicted of a crime where the theory of his guilt is no more likely than the theory of his innocence. “If there is the slightest reasonable or probable chance of innocence of an accused, the favour of it must be provided to him.” Where the presumption of innocence is altered by a statutory provision, the onus is on the accused person. Where an assault rifle is found in innocent possession of a person, the apex court observed that such onus should not be excessive as that of the prosecution but even so should be the substantial probability.
Because one can be accused of a crime without being a criminal, a fundamental postulate of justice necessitates that plaintiffs prove their accusations and that the accused be regarded as innocent in the time amid accusation and judgment is delivered. This is called the concept of presumption of innocence.
In the renowned case of Woolmington v. Director of Public Prosecutions [UKHL 1, AC 462 (1936) 25 cr app R 72], this postulate was known as ‘golden thread principle of criminal law’. In the present time, this postulate is duly recognised in the criminal law of numerous common law nations such as the United Kingdom, Canada, South Africa, United States of America and India.
Reference
[i] Dr K.N. Chandrasekharan Pillai, Burden of Proof in Criminal Cases, available at https://www.ebc-india.com/lawyer/articles/2003v8a7.htm, last accessed at 8/05/2020 at 3:00 pm.
[ii] Burden of Proof, Law times journal, available at https://lawtimesjournal.in/burden-of-proof/, last accessed at 8/05/2020 at 3:30pm
[iii] Burden of proof in criminal cases-its scope and applications in India, academia.edu, available at https://www.academia.edu/22889113/BURDEN_OF_PROOF_IN_CRIMINAL_CASES_-_ITS_SCOPE_AND_APPLICATION_IN_INDIA, last accessed at 7:00pm.
[iv] Section 105 of the Indian Evidence Act, 1872, available at https://www.shareyouressays.com/knowledge/section-105-of-the-indian-evidence-act-1872/120492, last accessed at 8/05/2020 at 7:45pm.
[v] Ibid
[vi] Ibid
[vii] Priyanshi Rastogi, The Presumption of Innocence and its Duel with Reverse Burden Clauses, available at https://medium.com/legis-sententia/the-presumption-of-innocence-and-its-duel-with-reverse-burden-clauses-d8a86d797533, last accessed at 8/05/2020 at 8:15pm.
[viii] Abhiraj Thakur, What Is A Reverse Onus Clause In Criminal Law?, available at https://blog.ipleaders.in/reverse-onus-clause-criminal-law/, last accessed at 8/05/2020 at 9:00pm.
[ix] Ibid.
