CHANAKYA NATIONAL LAW

UNIVERSITY

LAW OF EVIDENCE

TOPIC: BURDEN OF PROOF AND ONUS OF PROOF

SUBMITTED TO

Mr. Rama Rao

Faculty of Law of Evidence

SUBMITTED BY

Tanu Priya

4th Semester

1059

ACKNOWLEDGEMENT:

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Doing this project is one of the most significant academic challenges I have ever faced. Though

this project has been presented by me but there are many people who gave their full support and

also helped me to complete this project.

First of all I m very grateful to my subject teacher Mr. Rama Rao as without his support it

would have been very difficult for me to complete this project. It was very kind of him to donate

his valuable time from his busy schedule in order to help me to complete this project. He also

suggested me that from where am I going to collect the data for my project.

I am very thankful to the librarian who provided me several books related to my topic which

proved very much beneficial for me to complete this project. I also acknowledge some of my

friends who gave their valuable advice as well as helped me in collecting certain data regarding

my project which proved very much beneficial for me and also could not be ignored in writing

this project.

TABLE OF CONTENTS:

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1) INTRODUCTION……………………………………………………………………4

2) MEANING OF BURDEN OF PROOF………………………………………………5

3) REVERSE ONUS……………………………………………………………………..6

4) SHIFTING THE BURDEN OF PROOF ON THE ACCUSED……………………9

5) BURDEN OF PROOF IN THE CASE OF EXCEPTIONS………………………….10

6) BURDEN OF PROOF IN CRIMINAL CASES AND THE SUPREME COURT—

NEW TRENDS…………………………………………………………………………11

7) CONCLUSION…………………………………………………………………………23

8) BIBLIOGRAPHY………………………………………………………………………25

INTRODUCTION:

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The legal concept of burden of proof is notoriously complex and ambiguous. Various kinds of

burdens of proof have been distinguished, such as the burden of persuasion, burden of production

and tactical burden of proof, and these notions have been described by different scholars in

different ways. They have also been linked in various ways with notions like presumptions,

standards of proof, and shifts and distributions of burdens of proof. What adds to the complexity

is that different legal systems describe and treat the burden of proof in different ways. For

instance, in common-law jurisdictions the just-mentioned distinction between three kinds of

burden of proof is explicitly made while in civil law systems it usually remains implicit.

Criminal law not only designates various acts as offences but also recognizes general and

specific exceptions to these offences. These general and specific offences fall under various

heads. Some imply the very negation of the offence committed' and the guilt behind it, while

some others just "exempt" the offender from being punished as he is legally justified in doing

that act. The rationale is to see that a person committing an offence under certain circumstances

is not punished by law, as law itself permits the commission of such acts. Some are permitted

due to societal reasons while some due to medical reasons, inter alia. The whole concept of

general exceptions in criminal jurisprudence however is based on one cardinal principle viz. for a

legal system and thereby for a society to survive, certain acts which do constitute an offence

have to be pardoned by law, due to compelling circumstances. These circumstances are

necessitated by a variety of reasons and acts committed due to those reasons. if punished may

ridicule the very object of a criminal legal system, i.e. safeguarding a law-abiding citizen from a

law-breaking citizen. Procedural law, though merely the hand-maiden of justice, undoubtedly

regulates the substantive law and thereby the administration of justice. The burden of proof is

one of the important principles of procedural law, especially in criminal law.

MEANING OF BURDEN OF PROOF:

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Before examining on whom the burden of proof lies in criminal cases, it is important

to understand what the phrase ‘burden of proof’ implies. Burden of proof relates to

the manner in which a case is tried, and by long usage has become the only reasonable

and natural method.“ It has been defined as follows: “On every issue, there is an

obligation on one party to convince the tribunal of the truth of some proposition of

fact which is in issue and which is vital to his case.1

The term burden of proof has two distinct meanings. Firstly, ‘legal burden’ which

may be used to indicate the burden of proof on the pleadings which means that it

rests on the party that asserts the affirmative of an issue.” This is fixed at the

beginning of the trial and is settled as a question of law.” Secondly, ‘evidential burden’ that may

also be used in the sense of adducing evidence in order to establish a prima facie case upon

which the accused may (not must) be found guilty if he does not render evidence to create a

reasonable doubt. However, this is not considered to be a correct of burden of proof. The effect

of the prosecution not the evidential burden is that the charge is dismissed.” The two aspects of

burden of proof that have been discussed hereinabove have been embodied in sections 101 and

102 of I.E.A respectively.2

Burden of Proof in case of Reverse On us Clauses and Presumptions :

1 www.lawnotes.in › Home › Indian Law › Indian Acts2 www.advocatekhoj.com/.../indianevidence/index.php?

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There are certain legislations that may shift the evidential burden of proof on the

accused. In a criminal trial the evidential burden does keep shifting during the course

of the trial. However, it always lies on the prosecution in the first instance since it is

the prosecution that seeks to assert an affirmative to prove the guilt of the accused.

However, it may be possible that the statute requires the accused to prove certain facts

in the absence of which the Courts may draw a certain inference. This is in the nature

of a presumption which comes into play only after some elements of the offence have

been proved by the prosecution and therefore, it is submitted that it is incorrect to say

that the burden of proof is shifted under these legislations.3

It is submitted that the Malimath Committee has confused the legal burden of proof

with the evidential burden of proof. The Malimath Committee Report states that

sections 105 to 114A of the LEA. shift the burden of proof on the accused. This in the Malimath

Committee’s opinion marks a deviation from the cardinal principle of

criminal jurisprudence that the burden rests on the prosecution to prove its case.

Reliance is placed by the Malimath Committee Report on Illustration(b) to section

106 of the I.E.A in order to support the above proposition. The Malimath

Committee also refers to similar instances in special statutes as regards reverse onus

clauses.4

Statutory presumptions, which place an evidential burden on the accused, requiring

the accused to do no more than raise a reasonable doubt, do not breach the

presumption of innocence. The Malimath Committee has rightly observed in the

Malimath Committee Report that such presumptions do not violate Art. 21 of the

Constitution of India.” The Malimath Committee referred to a number of Supreme

Court decisions to support this proposition.” Moreover, the Malimath Committee is

correct in so far as it points out that such statutory presumptions are not incompatible

with Art. 14(2) of the I.C.C.P.R. These presumptions should be considered in the

same light as common law evidential presumptions. These reverse onus clauses are a

3 http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/627/(2013)%2025%20SAcLJ%20130-181%20(Peter%20Gabriel).pdf4 http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-A2E693F4B5EE.pdf

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necessary part of preserving the balance of fairness between the accused and the

prosecutor in matters of evidence.

For example such a reverse onus clause may be found in sections 20 and 54 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 that lay down that a person

who is found in possession of illicit drugs has to prove that he has a licence to justify

such possession in the absence of which the presumption will stand and the accused

may be convicted even Without the prosecution proving that the accused was in illegal

possession.

However, it is submitted that the Malimath Committee's interpretation of these

provisions is incorrect because of the following reasons-firstly, the legal burden always

remains on the prosecution and secondly, the standard of proof required of the accused can never

be beyond the balance of probabilities in a common law system that seeks to protect the rights of

the accused. At the same time, it would not be incorrect to state that the effect of these provisions

is that although the prosecution has to prove certain elements of the offence beyond reasonable

doubt, it does not have to do so for all the ingredients of the offence. Therefore, the effect of the

reverse onus clause is such that the extent of the legal burden is altered.5

Similar provisions are contained in the Prevention of Corruption Act, 1988 which

shifts the evidential burden of proof upon the accused when certain elements of the

offence under the relevant provisions have been proved by the prosecution beyond

reasonable doubt. It is submitted that one of the primary problems in the Malimath

Committee Report lies in the logical inconsistency.

The Malimath Committee Report relies on the shifting nature of evidential burden of proof to

assert that the legal burden on the prosecution to establish its case beyond reasonable doubt may

also shift during the trial. The Malimath Committee Report has defined presumptions as: “Legal

devices whereby courts are entitled to pronounce on an issue notwithstanding that

there is no evidence or insufficient evidence.”

5 http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-A2E693F4B5EE.pdf

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Clearly this definition of ‘presumption’ indicates that Court exercises discretion in

applying the presumption because it is a power and not a duty of the Court. That is, it

is not mandatory to make the presumption. It is submitted that the mandatory nature

of the presumption depends on the policy considerations and the intention of the

legislature.6

It is further submitted that the cases discussed by the Malimath Committee in the Malimath

Committee Report refer to the constitutionality of reverse onus clauses that merely shift the

evidential burden on the accused. This cannot be taken to indicate the Court’s acceptance of

shifting the legal burden on the accused. It is submitted that contrary to the Malimath

Committee’s opinion, if the legislature were to expressly shift the legal burden on the accused, it

would not stand the test of Art. 21 of the Constitution of India. The presumption of innocence,

although not affected by shifting the evidential burden, is most certainly affected by

shifting the legal burden of proof. Therefore, the Malimath Committee Report is on

thin ice in suggesting that implementation of this recommendation will not be struck

down as unconstitutional.

This assumption of the Malimath Committee is also demonstrated in other parts of

the Malimath Committee Report. Where it is stated that there is a deviation from the

concept of presumption of innocence in socio-economic offences. Since the

presumption of innocence reflects the legal burden and not evidential burden, the

argument that deviation from this principle is constitutionally valid is quite clearly

erroneous.7

Moreover, the Malimath Committee Report once relies on the validity of

statutory presumptions to assert that the legislature is competent to lower the standard

of proof. The Malimath Committee relies upon section 4 of the Public Gambling Act,

1867 to state that under the statute the prosecution is not required to prove the

presence of the accused for the purposes of gambling. What the Malimath

6 http://www.cs.uu.nl/groups/IS/archive/henry/p+sbop09.pdf7 http://www.manupatra.co.in/newsline/articles/Upload/521B34A7-F568-4F37-87E0-BA55EAFCE247.pdf

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Committee has not taken into account is the fact that the prosecution is still required

to prove beyond reasonable doubt the presence of the accused in the gambling house

although it is not required to prove the purpose of such presence. Therefore, a reverse

onus clause cannot completely do away with the legal burden contrary to what has

been suggested by the Malimath Committee Report. Moreover, as has already been

suggested earlier in this note, a reverse onus clause may only alter the extent of the

legal burden but cannot affect its nature.8

SHIFTING THE BURDEN OF PROOF ON THE ACCUSED:

When one considers the first meaning of burden of proof as has been explained above, it is easy

to reach the conclusion that the burden of proof of satisfying the jury of the guilt of the accused

beyond reasonable doubt is always upon the prosecution and can never change. If a doubt exists,

then the accused should be acquitted. The presumption of innocence implies that the prosecution

is required to prove every ingredient of the offence, even though there may be negative

averments made by the prosecution. The burden of proof is never on the accused to prove his

case or disprove the prosecution’s case. The legal burden remains on the prosecution to prove

every essential ingredient of the offence.

The burden of proof lies on the prosecution to adduce evidence before the Court and if it fails to

introduce any or sufficient evidence, it is an established principle that will follow. However, if

one considers the evidential burden, it constantly shifts during the trial; the evidential burden

may “shift” once the prosecution has made out a prima facie case against the accused and he may

be convicted if he does not adduce evidence to create a reasonable doubt.“ The accused bears the

burden of adducing evidence if he wishes to prevent adverse inferences being drawn from other

evidence, where that other evidence is relevant to an issue on which the prosecution already

bears the legal and evidential burdens.9

BURDEN OF PROOF IN THE CASE OF EXCEPTIONS:

As has been discussed already, the legal burden of proof always remains on the prosecution but

8 http://www.ebc-india.com/lawyer/articles/2003v8a7.htm9 http://www.manupatra.co.in/newsline/articles/Upload/521B34A7-F568-4F37-87E0-BA55EAFCE247.pdf

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under section 105 of I.E.A., the burden may shift upon the accused to prove special

circumstances when he takes the support of an exception or a proviso. The most common

illustration since the time of Woolmington is that of insanity. The prosecution has to prove all

the elements of the crime including the required mens rea. However, the accused may rebut this

by pleading insanity but then burden of proof in this case is only one of balance of probabilities.

Even if the accused is unable to establish his insanity, the evidence led by him may raise a

reasonable doubt as to the mens rea of the accused at the time of the commission of

the offence.10

It is clear from the definition of a presumption that it frees the person in whose favour it acts,

from the evidential burden of adducing evidence in the first instance. Sections 105 to 114A of

I.E..A. deal with presumptions where the evidential burden is shifted upon the accused. It may

also be argued that in the absence of any evidence adduced on either side, the presumption

prevails in order to establish the truth of the issue under consideration.

BURDEN OF PROOF IN CRIMINAL CASES AND THE SUPREME

COURT— NEW TRENDS:

10 http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-A2E693F4B5EE.pdf

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India is rightly categorized as a common law country which has adopted the adversarial system

of trials. In criminal cases, both the prosecution and the defence are represented by legally

qualified persons. It is for them to command to their aid all the information in favour of the

respective parties before another legally qualified person, the trial Judge, who is the pivot of the

criminal justice system.

Under both the adversarial system and the inquisitorial system of trial it is the trial Judge who

has been given enormous powers to conduct the trials properly. The Public Prosecutor under 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.11 Also, the defence counsel may

be allowed to put only such questions to the witnesses as may be permitted by the trial Judge.

This is also the position under the inquisitional system.12 And it is generally asserted by both the

systems that there is 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

reasonable doubt. The defence is also required to prove the facts if it has asserted them. Thus,

both the systems have common features and rules of 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 followed by the functionaries in the adversarial system makes the

presumption of innocence really strong.

Though there does not appear to be much difference between the two systems of trial, it is

generally asserted that it is under the inquisitional system of trial that maximum percentage of

conviction is registered when compared to the result in adversarial system. The reason for this

seems to be the difference in approach the practitioners adopt towards the principles.

In English law it was generally believed that the burden on the prosecution to prove its case

beyond reasonable doubt was sacrosanct, that even if the burden is shifted to the defendant what

is expected to be proved was to establish a case on balance of probabilities and the trial starts

with the presumption that the accused is innocent whereas under the inquisitional system this

presumption gets weakened because of the dossier prepared by the investigating judicial

11 It is specifically mentioned in Section 301 CrPC that the PP shall conduct prosecution without the court’s permission.12 Under our system the Judge reserves the right to restrict the questioning process. Under the French system it is only with the permission of the court that the defence can question the witness.

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officer.13 Since the organized power of the State has been at the command of the prosecution, it

was generally the impression that if there is any doubt on the veracity of the prosecution case the

benefit of doubt should go to the defendant who is the weaker between the two.

The courts in the common law countries have been insistent in following those principles and

this attitude has created an impression that many culprits escape the clutches of law. The system

responded to this impression differently. Some jurisdictions excluded the mens rea component of

crimes; some shifted the burden from the prosecution to the defendant. And still there has been a

general feeling among the courts that the system has been unduly adhering to the above

principles to the detriment of the society. This has not been a permanent trend, however, some

judges, Appellate Judges in particular — who are over conscious about the security of society

develop this trend and after their retirement the system gets back to its original position. Then

after sometime again the trend sets in. This shows the vitality of the common law system. It is

proposed to examine this phenomenon as signified in some decisions to point out that it is

perhaps not a permanent feature and that it serves the purpose of administering caution

periodically so that the system may maintain its balance. If this trend is not arrested the system

may develop chinks that can have devastating impact on the credibility of the system. It is,

therefore, necessary that we undertake such a study periodically to help monitor the trend.

It was in Shivaji Sahabrao Bobade v. State of Maharashtra14 that Justice K. Iyer warned about

our undue adherence to the fundamental principles. He said:

“The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of

social defence and to the soothing sentiment that all acquittals are always good regardless of

justice to the victim and the community, demand special emphasis in the contemporary

context of escalating crime and escape. The judicial instrument has a public accountability.

The cherished principles or golden thread of proof beyond reasonable doubt which runs

through the web of our law should not be stretched morbidly to embrace every hunch,

hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a

thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only

13 Under the continental system investigation is done by the investigating Magistrate and it is really the dossier which he prepares that is on trial.14 1973 SCC (Cri) 1033

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reasonable doubts belong to the accused. Otherwise any practical system of justice will then

break down and lose credibility with the community.”15

Justice Krishna Iyer was so perturbed by the strict adherence of our trial Judges to the principle

that he went to the extent of advising them thus:

“We must observe that even if a witness is not reliable, he need not be false and even if

the police have trumped up one witness or two or has embroidered the story to give a credible

look to their case that cannot defeat justice if there is clear and unimpeachable evidence

making out the guilt of the accused.”16

Justice Khanna who was a party to this decision was quick to clarify the position in the

subsequent decision in Kali Ram v. State of H.P17. This was also a three-Judge Bench consisting

of H.R. Khanna, Alagiri Swami and R.S. Sarkaria, JJ. The observations of Justice Iyer sent out a

wrong message and Khanna clarified thus:

“ Observations in a recent decision of this Court, Shivaji Sahabrao Bobade v. State of

Maharashtra to which reference has been made during arguments were not intended to make

a departure from the rule of the presumption of innocence of the accused and his entitlement

to the benefit of reasonable doubt in criminal cases. One of the cardinal principles, which has

always to be kept in view in our system of administration of justice for criminal cases, is that

a person arraigned as an accused is presumed to be innocent unless that presumption is

rebutted by the prosecution by production of evidence as may show him to be guilty of the

offence with which he is charged. The burden of proving the guilt of the accused is upon the

prosecution and unless it relieves itself of that burden, the courts cannot record a finding of

the guilt of the accused.”18

Khanna, J. essayed on the importance of the fundamental principles thus:

“ Another golden thread which runs through the web of the administration of justice in

criminal cases is that if two views are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his innocence, the view which is

favourable to the accused should be adopted. This principle has a special relevance in cases

wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule

15  Ibid., p. 1039, para 616 Ibid., p. 1047, para 1917  1973 SCC (Cri) 104818 Ibid., p. 1059, para 23

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has accordingly been laid down that unless the evidence adduced in the case is consistent

only with the hypothesis of the guilt of the accused and is inconsistent with that of his

innocence, the court should refrain from recording a finding of guilt of the accused. It is also

an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the

accused, the accused must have the benefit of that doubt.”19

The learned Judge located the abovementioned principles’ rationale thus:

“ It is no doubt true that wrongful acquittals are undesirable and shake the confidence of

the people in the judicial system, much worse, however, is the wrongful conviction of an

innocent person. The consequences of the conviction of an innocent person are far more

serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent

person is convicted of the offence of murder and is hanged, nothing further can undo the

mischief for the wrong resulting from the unmerited conviction is irretrievable.”20

It is apparent that strict adherence to the basic principles of presumption of innocence and burden

of proof require delicate balancing of the trial procedures by the impartial and independent

Judge. Our system reposes much faith in the impartiality of the Judge in as much as it confers on

him many powers with potential for abuse. Section 165 of the Evidence Act enacts such a

provision. It runs thus:

“ Judge’s power to put questions or order production.—The Judges may, in order to

discover or to obtain proper proof of relevant facts, ask any question they please, in any

form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and

may order the production of any document or thing; and neither the parties nor their agents

shall be entitled to make any objection to any such question or order, nor, without the leave

of the court, to cross-examine any witness upon any answer given in reply to any such

question:

Provided that the judgment must be based upon facts declared by this Act to be relevant,

and duly proved:

Provided also that this section shall not authorise any Judge to compel any witness to

answer any question, or to produce any document which such witness would be entitled to

refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were

19 Ibid., p. 1060, para 2520  Ibid., p. 1061, para 27

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asked or the document were called for by the adverse party; nor shall the Judge ask any

question which would be improper for any other person to ask under Section 148 or 149; nor

shall he dispense with primary evidence of any document, except in the cases hereinbefore

excepted.”

A trial Judge in Ram Chander v. State of Haryana21  taking cue from this provision, in an effort

to compel the witnesses to speak what he thought must be the truth, very wrongly, firmly

rebuked them and virtually threatened them with prosecution for perjury. The Supreme Court

found it impossible to justify this attitude and refused to accept any portion of the evidence of the

two eyewitnesses recorded by the Sessions Judge. The Court explained its position thus:

“We may go further than Lord Denning and say that it is the duty of a Judge to discover

the truth and for that purpose he may ‘ask any question, in any form, at any time, of any

witness, or of the parties, about any fact, relevant or irrelevant’ (Section 165 of the Evidence

Act). But this he must do, without unduly trespassing upon the functions of the Public

Prosecutor and the defence counsel, without any hint of partisanship and without appearing to

frighten or bully witnesses. He must take the prosecution and the defence with him.”22

It is interesting to see how these cautions percolated down. The Kerala High Court instead of

keeping them within their bounds, added new dimensions to Section 165 and the decisions

thereon. For example in Vincent v. State of Kerala23 Justice K.T. Thomas (as he then was)

declared:

“The contention that the trial Judge cannot be permitted to put questions to fill up the

lacuna in the prosecution evidence is equally fallacious because it is the duty of the Judge to

put all necessary questions to discover or obtain proof of all relevant facts. Even if it results,

sometimes, in filling the lacuna in prosecution evidence, the trial Judge is not inhibited from

putting such questions. It is only an exhibition of judicial weakness if a trial Judge points out

in his judgment that the cause suffers due to failure of the prosecution of the defence counsel

in eliciting proof of relevant facts.”24

The Court justified the act of the Sessions Judge inVincent14:

21 1981 SCC (Cri) 68322 Ibid., p. 686, para 323  1984 KLT 95024 Ibid., p. 954

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“In this case when the Sessions Judge found it necessary to put questions to the defence,

she is justified in exercising her power and no matter that she did not put cross-questions to

prosecution witnesses.”25

The Court seems to have treated the power under Section 165 as something absolute. But any

power given to a Judge in our criminal justice system should be understood in the background of

its evolution and the roles and interrelationships of the functionaries under the criminal justice

system. Our system’s reputation and credibility depend a lot upon the functioning of our trial

Judges who know that justice should not only be done but should be shown to have been done.

The latter is possible only if the Judge shows to the world that he is independent and impartial.

And this he can achieve only if he maintains a balance by developing an attitude of detachment.

Detachment could be achieved effectively if he keeps away from the role of a prosecutor or

defence attorney. This is what is expected of him despite the enactment of Section 165 of the

Evidence Act. If he enters the ring, he wears the mantle of the Public Prosecutor and the whole

purpose of criminal trial would then be defeated. It is too much for a High Court — as the Kerala

High Court has done — to say that the trial Judge can put questions, the answers of which may

fill up the lacuna in the prosecution case. In fact this is going beyond what was laid down by the

Supreme Court. Nor was it the meaning the statutory provisions were given in practice by the

lawyers and Judges in our country.

Justice Thomas in the Supreme Court has reiterated his position in State of

Rajasthan v. Ani26 wherein he observed:

“The said Section 165 was framed by lavishly studding it with the word any which could

only have been inspired by the legislative intent to confer unbridled power on the trial court

to use the power wherever he deems it necessary to elicit truth. Even if any of such question

crosses into irrelevancy the same could not transgress beyond the contours of powers of the

court. This is clear from the words relevant or irrelevant in Section 165. Neither of the parties

has any right to raise objection to any such question.”27

25  Ibid., p. 95526 1997 SCC (Cri) 85127 Ibid., p. 854. It may be pertinent to note that of late the Supreme Court in Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646 : 2000 SCC (Cri) 522 ruled: “It is necessary to remember that a Judge does not preside over a criminal trial merely to see that a guilty man does not escape. One is as important as the other.”

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This view of the powers of the trial Judge has led to the situation where the trial Judge’s

conclusion on medical aspects has also been upheld. The active role assented to him in this

process of reasoning emboldens him to draw inferences from facts even when the prosecutor

fails to cull out information by way of examination or cross-examination. It is interesting to note

the approach of Justice Thomas in such a situation in State of W.B. v. Mohd. Omar28. In this case

the Public Prosecutor did not ask the doctor about the nature of the injury. And the court did not

have the benefit of the views of the doctor to decide the gravity of the offence. Justice Thomas

responded to this situation thus:

“ No doubt it would have been of advantage to the court if the Public Prosecutor had put

the said question to the doctor when he was examined. But mere omission to put that question

is not enough for the court to reach wrong conclusion. Though not an expert as PW 30, the

Sessions Judge himself would have been an experienced judicial officer. Looking at the

injuries he himself could have deduced whether those injuries were sufficient in the ordinary

course of nature to cause death.”29

About the need for a change of outlook on presumption of innocence, Justice Thomas declares:

“The pristine rule that the burden of proof is on the prosecution to prove the guilt of the

accused should not be taken as a fossilised doctrine as though it admits no process of

intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it

impair the temper of the rule. On the other hand, if the traditional rule relating to burden of

proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in

serious offences would be the major beneficiaries and the society would be the casualty.

In this case when the prosecution succeeded in establishing the afore-narrated

circumstances, the court has to presume the existence of certain facts. Presumption is a

course recognised by the law for the court to rely on in conditions such as this.”30

These words echo the words of Justice Iyer in 1973 in ShivajiSahabrao5 and there is not yet a

decision like Kali Ram to balance the situation. Justice Thomas continue to maintain the position

taken by Justice Krishna Iyer, though the explanation given by Justice Khanna remains in

oblivion.

Justice Thomas also dwelt on the role of the trial court in the reasoning process. He said:28 2000 SCC (Cri) 151629 Ibid., p. 1523-24, para 23.30 Ibid., p. 1525, paras 31-32

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“When it is proved to the satisfaction of the Court that Mahesh was abducted by the

accused and they took him out of that area, the accused alone knew what happened to him

until he was with them. If he was found murdered within a short time after the abduction, the

permitted reasoning process would enable the Court to draw the presumption that the accused

have murdered him. Such inference can be disrupted if the accused would tell the Court what

else happened to Mahesh at least until he was in their custody.”

The Court proceeded further and commanding Section 106 of the Evidence Act to its aid

reasoned:

“ In this context we may profitably utilise the legal principle embodied in Section 106 of

the Evidence Act which reads as follows: ‘When any fact is especially within the knowledge

of any person, the burden of proving that fact is upon him.’

The section is not intended to relieve the prosecution of its burden to prove the guilt of

the accused beyond reasonable doubt. But the section would apply to cases where the

prosecution has succeeded in proving facts from which a reasonable inference can be drawn

regarding the existence of certain other facts, unless the accused by virtue of his special

knowledge regarding such facts, failed to offer any explanation which might drive the court

to draw a different inference.”

The process of reasoning is indeed welcome in exceptional cases where the court is convinced

about the truthfulness of the prosecution case in the light of facts established by it in the process

of trial. But an overemphasis on this power might sometimes lead the court to making

conclusions that may fail to convince others as being legally and factually valid. In this context it

is also interesting to note how the Supreme Court drew inference and made a story different from

what the prosecution presented to the trial court and the High Court. In State of

U.P. v. Lakhmi the prosecution set up a story to the effect that a husband who used to quarrel

with his wife on account of his drinking habit, killed her. He was caught and trussed upon a tree.

During the course of trial he gave statements to the court under Section 313 CrPC. Taking the

cue from Section 313(4) CrPC, Justice Thomas concluded that it amounts to legislative

guidelines for the Court to give due weight to such answers, though it does not mean that such

answers would be made the sole basis of any finding.

The accused’s defence of insanity under Section 84 IPC was not apparently accepted by the

Court. But the Court referred to the alternative defence and said:

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“However, we have noticed that the accused had adopted another alternative defence

which has been suggested during cross-examination of prosecution witnesses i.e. his wife and

PW 2 (Ramey) were together on the bed during the early hours of the date of occurrence. If

that suggestion deserves consideration we have to turn to the question whether the benefit of

Exception 1 of Section 300 IPC should be extended to him?

The law is that, burden of proving such an exception is on the accused. But the mere fact

that the accused adopted another alternative defence during his examination under Section

313 CrPC without referring to Exception 1 of Section 300 IPC is not enough to deny him the

benefit of the exception, if the Court can cull out materials from evidence pointing to the

existence of circumstances leading to that exception. It is not the law that failure to set up

such a defence would foreclose the right to rely on the exception once and for all. It is

axiomatic that burden on the accused to prove any fact can be discharged either through

defence evidence or even through prosecution evidence by showing a preponderance of

probability.”

Then the Court tries to weave out a story out of the statements of some witnesses scattered hither

and thither. Its discussion should be quoted in extenso if it is to be understood as to how the

Court presents the montage. The Court discusses:

“The defence counsel put a definite suggestion to PW 2 (Ramey), during cross-

examination, that the incident was preceded by a liasion between Omvati, the deceased and

Ramey (PW 2). The suggestion was, of course, rebuffed by the witness. One of the defence

witnesses (DW 1) was examined to say that the accused was working in his field till 4 a.m.

on the night in question. As that version was not inconsistent with the prosecution story, the

aforesaid evidence of DW 1 was not rejected by the trial court. If the version is correct, he

would have gone back to his bedroom sometime thereafter. In this connection, we refer to the

evidence of PW 3 who said even during chief examination itself that when he saw the

accused standing near the bedside of his wife, the witness asked him what did he do, to which

he snorted out that he would not spare Ramey (PW 2) also. The evidence of PW 3 (Bhondia)

was binding on the prosecution which has a very significant impact on the plea based on the

First Exception to Section 300. It indicates that the motive for the accused to murder his wife

has some nexus with Ramey (PW 2). According to PW 4 (Raje), he rushed to the house of the

accused and saw PW 2 scampering away and then saw the accused inside the bedroom

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muttering that Ramey had done foul acts with his wife and that he would murder him.

Though the Public Prosecutor challenged that part of the witness’s testimony, he did not treat

the witness as hostile for the prosecution.

The above features positively suggest that the accused would have seen something

lascivious between his wife and PW 2 just when he entered the house from the field.

There can be little doubt that if the accused had witnessed any such scene, his mind

would have become suddenly deranged. It is not necessary that a husband should have been

hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes.”

Thus concluding, the Judge gave the appellant the benefit of Exception 1 of Section 300 IPC

which he never contemplated or planned as a defence. He got off with conviction under Part I of

Section 304 IPC with a sentence of 6 years’ RI.

It is not known how Justice Thomas makes out a story which the prosecution or the defence

failed to categorically make. In fact he accepts a piece of evidence rejected by the Public

Prosecutor saying that he did not treat the witness as hostile. What impact this story may have on

the children of the deceased when they grow up should have been considered. If such a story is

made out as part of the defence they may ignore it as it is usual for the defence to set up such

stories to escape punishment. It makes a difference when it is made by the court. It is pertinent to

note that the provisions in IPC and CrPC were made in the context of a stage of development of

fundamental concepts about the roles of judiciary and the police. If one ventures to look into

various provisions in CrPC one becomes aware of the enormous powers conferred on the

judiciary. These powers have tremendous scope for abuse. However, we retain this power with

the judicial officers because of our impression that a judicial officer with sufficient experience in

legal matters may not abuse the powers. And our judicial officers at the district level have,

generally speaking, lived up to this expectation. We do not get frequent complaints about the

judicial officers not insisting on production of arrested persons within 24 hours of the arrest, nor

do we come across often a judicial officer who has helped a prosecutor after going through the

case diary. In the case of granting bail also our judicial officers have been, generally, exercising

their discretion in accordance with law and well-established practice. This does not simply mean

that it is because our law is very clear that the judicial officers function well. On the contrary, it

is definitely because of the good relations the Bench and the Bar have been developing and

maintaining as in the case of other common law countries. The legal culture we have evolved has

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helped us to develop certain conventions and practices bordering ethics and law. Our laws are

made in this cultural context. To read them out of this context would make them dogmatic and

unworkable. This becomes evident if one examines the provisions in our law.

A look into the various provisions of the Indian Evidence Act may indicate that the provisions

have been enacted with the understanding that neither the Judge nor the lawyer would go beyond

a limit set by the practitioners during the last two centuries despite the malleability of the

provisions. For example, if one looks into the meaning of Sections 8 and 9, this aspect becomes

clear. An imaginative Judge could stretch Section 9 to make anything relevant. Likewise what is

not admitted in evidence under a provision could be brought in as an aspect relevant under

Section 8. However, because of our lawyers’ background they may not stretch these provisions

beyond the breaking point.

Indeed, our criminal justice system has not been successful in ensuring conviction in all cases.

Critics used to say that this is due to the sacred adherence of our Judges to the presumption of

innocence and the requirement of proving the mental element. There is no harm in reversing the

trend of frequent acquittals on technicalities. But this reversal should not be at the cost of losing

the credibility and reputation of the Judges as impartial functionaries. In reality Judges may be

impartial and independent, but their credibility depends upon how they function. If by any

chance there is an impression that there is no harm in a Judge filling up the lacuna in a

prosecution case, he cannot give the impression that justice has been done even though he has

done justice. This will have a very dampening impact on our system.

The decision in Lakhmi  though a bold one in the present context, does not strike the balance. It

does not take the legal culture out of which the criminal procedure law and evidence law

emerged into consideration. These laws closely associated with practice would have vivacity

only if they are interpreted in their cultural context. That is the main reason why our system

insists on appointing only persons with judicial experience as Judges. Appellate Judges in our

country usually do not resort to appreciation of evidence done by the Supreme Court inLakhmi.

If this sort of interpretation is adopted practically there will be no difference between the

adversarial system of trial and an inquisitorial system. The Indian legal fraternity rightly stands

by the former and the Supreme Court should not try to rewrite the fundamental principles of

criminal justice administration as it does not have the mandate for doing so. The record of our

Supreme Court would indicate that if one of its Benches had rendered a decision with potential to

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tilt the balance on legal question, another Bench would come up with another one subsequently,

to maintain equilibrium. Sometimes there could be conflicts of views. And they would be

resolved by the Judges themselves. Such a tendency indicates the vitality of the system as

pointed out earlier.31

CONCLUSION:

31 http://www.ebc-india.com/lawyer/articles/2003v8a7.html

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In conclusion, it may be stated that the legal burden of proof remains constant and is affected

only by reverse onus clauses that change the nature of the legal burden to the extent that all the

ingredients of the offence do not have to be proved by the prosecution. However, such reverse

onus clauses are usually limited to strict liability offences. Even if the statute seeks to place the

legal burden on the accused, it has to be read down so that only the evidential burden is shifted

upon the accused. Similarly, even in the case of presumptions, exceptions and provisos, although

sections 105 to 114A of I.E.A. shift the burden of proof to the accused, the burden is only that of

evidential burden of proof. The presumptions against the accused are rebuttable and therefore,

the legal burden is never shifted upon the accused.

In the UK. and U.S. the confusion in respect of the phrase “beyond reasonable doubt” has arisen

only because of the directions that are given to the by the judge.” However, it is generally

accepted that the standard of proof is that of proof beyond reasonable doubt. In the Indian

context, since there is no jury system, the judges do not need to define the phrase and may act on

the objective basis of a reasonable man to determine whether a doubt is reasonable. Here it is apt

to quote Lord Justice Denning who relied on Chief justice Best: “in proportion as the crime is

enormous, so ought the proof to be clear”.

The phrase seems to have been interpreted by some judges to mean proof beyond any doubt.

However, it is submitted that these are mere aberrations and do not imply that the standard

should be lowered. The standard of proof beyond reasonable doubt is important in order to

safeguard the rights of the accused at trial. The standard of clear and convincing evidence is

ambiguous and has been applied only in the cases of socio economic offences such as fraud in

U.S. This is because such offences have both civil and criminal elements. To apply this standard

to all offences under criminal law would be to tear apart the foundations of criminal law.

The Malimath Committee proposes to do away with the presumption of innocence and lower the

standard of proof, which will violate the presumption of innocence, as enshrined in Art. 14(2) of

the I.C.C.P.R. and other human rights conventions. The Malimath Committee Report’s focus is

on arming the state with more discretionary and punitive measures, the constitutionally

guaranteed rights of the accused, relaxing the presumption of innocent until proven guilty which

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is recommended as the surest Way of creating a better criminal justice system.

Therefore, it is submitted that the recommendations of the Malimath Committee as regards

shifting the burden of proof on the accused in certain cases and lowering the standard of proof to

clear and convincing proof is The rights of the accused are clearly an important part of the entire

criminal justice system and therefore, to abrogate these in the manner that has been suggested by

the Malimath Committee Report attacks the very root of the system. The Malimath Committee

merely required making suggestions keeping in mind the fundamental principles of criminal

jurisprudence in the Constitution of India. It has gone beyond its mandate in proposing reforms

that are clearly unconstitutional.

The legal burden of proof should obviously lie on the prosecution to prove what it

asserts and moreover, considering the gravity of the consequences of a criminal trial, it

is only fair to expect the State to prove its contention beyond reasonable doubt. The

Malimath Committee Report fails to consider the fact that although certain judicial

decisions have deviated from these principles, these are only but aberrations to the

rule that have been made considering the specific facts and circumstances of the case.

BIBLIOGRAPHY:

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1) http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-

A2E693F4B5EE.pdf

2) http://www.cs.uu.nl/groups/IS/archive/henry/p+sbop09.pdf

3) http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/627/

(2013)%2025%20SAcLJ%20130-181%20(Peter%20Gabriel).pdf

4) http://www.manupatra.co.in/newsline/articles/Upload/521B34A7-F568-4F37-87E0-

BA55EAFCE247.pdf

5) http://www.ebc-india.com/lawyer/articles/2003v8a7.htm

6) lawcommissionofindia.nic.in/reports/185thReport-PartV.pdf

7) www.lawnotes.in › Home › Indian Law › Indian Acts

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