This article is written by Niharika Agrawal, pursuing B.B.A.L.L.B from IFIM Law School. This article comprises the changing trends of the concept of burden of proof in the criminal cases of the Supreme Court of India.
Every facet of the case has some legal aspect which is pointed out by the court on which the parties have to prove or defend themselves. Similarly, every judicial proceeding ascertains some legal rights and liabilities which are interconnected with the facts and have to be proved before the court to satisfy them. Indian legislation provides such a statute with the title the Indian Evidence Act, 1872, under Section 101 to Section 111 which deals with the provision based on the ‘burden of proof’. The burden of proof is the legal burden or the obligation of the parties to prove the facts which further helps the court to decide in favor of either party. This burden of proof is also known as ‘Onus Probandi’. If the party on whom the burden lies fails to prove the burden then the case may go against him.
Earlier it was mainly the prosecution who had to take the entire burden of proving the facts. Due to this an accused had the advantage if the prosecution fails to do the same. Therefore, there had been several changes made in the legislation so that any crime should not be left unpunished for his deed. The Indian courts, in many circumstances, have reversed the burden upon the accused to prove his innocence. Hence, this article deals with the changing trends by the Supreme Court of India on the concept of Burden of proof in criminal cases.
Changing trends of the Supreme Court of India
Generally, the burden of proof is upon the prosecution to prove that he has suffered an injury or he has been affected beyond a reasonable doubt. This is because it is said that the one who institutes the case can provide the best evidence before the court. But in the case of heinous crimes such as rape, etc, this legal burden lies upon the accused to prove his innocence. These are some of the exceptions to this concept. This means that any of the parties will not be excused from proving his liability or burden of proof. Thus, there are two types of burden of proof. In the first case where it is based on law and pleading, the burden of proof remains the same and does not shift to the other party in any circumstances. While in the other case it is based on adducing evidence, the burden of proof may shift constantly during the trial.
India is a common law country. Many times it’s observed that there have been different principles in similar kinds of situations. Such as some jurisdiction has neglected the component of men’s rea in criminal cases or in some cases the court has shifted the burden of proof from the prosecution to the accused. This has created the wrong impression of India of being inconsistent in following the principles of the common law system. However, these trends are not permanent and are for the development and the security of society. It is important to understand the reason behind these changing trends so that this may not impact the credibility of this system. Therefore, here is the periodical case study to understand these changing trends through case laws decided by the Supreme Court of India.
Kali Ram v. State of Himachal Pradesh (1973)
The accused Kali Ram was charged in the Court of Sessions Judge for an offense under Section 302, Indian Penal Code for the murder of one Dhianu and his daughter Nanti. He was also charged for the offense of robbery. The Sessions Judge convicted him and sentenced him to death. On appeal, the High Court also confirmed his conviction and sentence passed by Sessions Judge was based on three pieces of evidence, that is first the evidence of a witness recorded by police over two months after the occurrence, secondly, the letter written by an accused to the Deputy Commissioner making a confession of his guilt and lastly an extra-judicial confession made to Sahi Ram who incorporated the letter to the Station House Officer. Further, the accused filed a Special Leave Petition (SLP) before the Supreme Court.
The issue arose in this case regarding the innocence of the accused based on the benefit of the doubt. The Supreme Court in the above case rejected all the sentences given by the trial court and the high court and gave the benefit of doubt to the accused.
Further, the Supreme Court in the above case was of the view that the system works on the principle that any person is considered to be innocent unless he or she is proven to be guilty. This means an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by producing evidence against the accused which makes him guilty of the specific charge. Hence the court cannot find an accused to be guilty until proven by the prosecution.
Another observation that the court opined was whenever there are two views, one favoring the accused and the other against the accused, then the view which is favorable to the accused shall be adopted. This principle is applied in special cases where the offense of an accused needs to be proven on the basis of circumstantial evidence. Thus, it was accepted that whenever the court finds reasonable doubt about the guilt of an accused, the accused must get the benefit of such doubt.
Based on the above principle the learned judge observed that such decisions may benefit wrongful acquittals and can lessen the trust of the people of the society in the judicial system, however, the conviction of a single innocent person is a more serious offense than any other. India follows the principle that even if thousands of guilty men may be relieved from the punishment but one innocent shall not suffer the false conviction. For such conditions, it is very important to have strict adherence by the neutral and independent judges to the basic principles of presumption of innocence, and the burden of proof needs the perfect balance of the trial procedures. The judicial system of India has reposed much faith in these impartial judges and therefore to protect the country against wrongful acquittals and unlawful convictions, has provided them with special powers against such abuse under Section 165 of the Act.
Scope of Section 105 of the Indian Evidence Act, 1872
Whenever an accused is charged against any criminal act, then the burden of proving the conditions that brought the charge of the case under any of the general exceptions provided under the Indian Penal Code, or under any other special laws, is upon the accused. Under this Section, the prosecution has to just establish the guilt of the accused and once the guilt is proven, the burden then shifts upon the accused who has the benefit to take the defense of general exceptions in IPC or Criminal Procedure Code. This is one of the special characteristics which applies only in criminal cases. Hence, as per Section 105 of the Act, the burden of proof is upon the accused.
The legal burden of the accused is not similar to the legal burden of the prosecution. The principle evidence has to be proved by the prosecution only. The accused has to only prove his case by the standard of ‘preponderance of probability’ which is the supposition of the existing actual facts. Thus this provision of the Act gives an opportunity to claim the defense under the general exception and also has to be examined by the standard of preponderance of probability.
In the case of KM Nanavati v. State of Maharashtra (1962), Nanavati was charged for the murder of Prem (the deceased defendant). Nanavati claimed the defense of grave and sudden provocation. The Supreme Court, in this case, held that, as per general rule, there is a presumption of innocence in the favour of the accused and the prosecution has to prove the legal burden. But when the accused claimed the general exception under IPC, Section 105 comes into the picture and shifts the burden of proof upon the accused to rebut the presumption. Hence in the above case, the accused failed to prove his grave and sudden provocation and was convicted of murder.
Need for a change in the outlook of presumption of innocence
The presumption of innocence is a concept which means every person or an individual is innocent until proven guilty. Justice Thomas in the case of State of West Bengal v. Mohd. Omar (2002) has explained the need to change the outlook of this concept. According to him, the traditional approach that the burden of proof will always lie upon the prosecution would only benefit the accused of the heinous crimes and would create casualties for the society. In such cases where the prosecutor is successful in proving certain facts of the case, the court has to presume the existence of the facts and has to rely on such circumstances. In other words, when the court is satisfied with the proof provided by the prosecution, then the burden of proof shifts to the accused as it is observed that it is only the accused who knows every incident that has been committed. This is also known as the reverse onus clause.
The above principle is laid down under Section 106 of the court. According to this section, when any fact is within the knowledge of any person, the burden of proving that fact is upon that person. This does not relieve the prosecution from proving his burden beyond the reasonable doubt but, would apply in cases where all the facts are proven by the prosecutor successfully and can establish certain other important facts about which the accused have perfect knowledge and has failed to put forth any explanation regarding such facts of the case that may help the court to make appropriate judgment. Hence, this provision gives another chance to the accused to defend himself by rebutting the presumption of the fact as such facts are within the accused’s special knowledge.
Development in Section 106 of the Act
Section 106 promotes the idea of a fair trial where it becomes easy to prove all the possible facts and have no burden to prove something that is impossible and benefit the accused. Also, it provides the opportunity for the accused to rebut the presumption of facts which is derived from the series of facts. However, it is noticed that the prosecution takes the disadvantage of this provision and tries to run away from his responsibility to prove the legal burden.
The Supreme Court has clarified all the doubts arising out of this Section in the case of Ram Gulam Chaudhary and Ors. v. State of Bihar (2001). It is held that all the positive facts must be proven by the prosecution however, it is not responsible to prove negative facts that something which is impossible or which is not within the knowledge of the party. Hence, shifting of the burden is not a violation of any statute or the provision of law as it helps in the establishment of truth which is important for a fair trial.
Reasons for reversing the burden of proof with respect to development in criminal cases
- It helps in the prevention of offenses.
- It provides protection to public welfare and maintains morality in society.
- It promotes fair trials.
- Reduces the burden of the prosecution to prove negative facts and also protects him from the inconvenience caused by criminal cases.
- It secures judicial expediency and economy.
- It is declared to be constitutionally rational by Indian Courts.
The concept of burden of proof is of broader value especially when it comes to the prosecution. There have been two different stages. One in which the prosecution has to prove the offense and the other in which the accused has to prove the general exceptions, this has increased the burden on the prosecution. The prosecutor has to prove the offense beyond reasonable doubt and also has to make sure that the case does not fall within the general exceptions. It becomes more difficult in criminal cases. This is due to the Indian judiciary system that follows the principle of presumption of innocence as the degree of punishment in criminal cases is more severe.
In our criminal justice system, there are many cases that have not ensured successful conviction. As per the experts, it is due to the traditional approach by the judges on the concept of presumption of innocence and requirement to prove mental element. Therefore, the need was found to reverse the trends which are not violative to any provision. However, it is important to ensure that these trends should not lose the credibility and reputation of the Judges as impartial functionaries.
The issues related to the presumption of innocence give the Parliament an unrestrained authority to enact the provision for reversing the burden of proof that violates the presumption of innocence with exceptional clauses especially in the case of heinous crimes of social-economic nature that impacts the wellbeing of the society at large. The provision that brings balance between the general interest of the community and the personal rights of an individual must be formulated.
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