BURDEN OF PROOF IN CRIMINAL CASES -

ITS SCOPE AND APPLICATION IN INDIA.

H.S.L.P. RESEARCH PAPER

Tony Johnson
2nd semester
Roll no. 984
NUALS
Introduction

“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
the case”1

Burden of proof can be defined as the duty placed upon a party to prove or
disprove a disputed fact, or it can define which party bears this burden. This
research article tries to cover the definition and the basics concepts of
burden of proof in criminal cases. Various case laws associated with burden
of proof is also incorporated within this article. Moreover this research paper
tries to identify the application of this concept in the Indian pretext and
whether it has any flaws. This research paper starts with the explanation of
basic concepts –The type of system followed in India, the mechanisms etc.,
then it moves on to the definition of Burden Of Proof and its scope. Finally the
application of it in India, the last section also covers a few historical aspects
of this concept and how it evolved in India.

BACKGROUND OF BURDEN OF PROOF

India is a country which has adopted the adversarial system of trials. To give
an introduction on what adversarial system - it is a legal system used in the
common law countries where two advocates represent their parties’ positions
before an impartial person or group of people, usually a jury or judge who
decides the truth of the case. It is for both the prosecution and the defence
to command to their aid all the information in favour of the respective parties

1
Law on Burden of Proof , Gopal S Chaturveli
before another legally qualified person, the trial Judge, who is the pivot of the
criminal justice system.

Under this system it is the Judge who is given the powers to conduct a trial
properly and without any flaws. The Public Prosecutor under the adversarial
system is a statutorily authorized person who is to represent the prosecution
while the defence counsel is authorized to do so on being permitted by the
Judge, moreover the defence counsel may be allowed to put only such
questions to the witnesses as may be allowed by the trial Judge. Under this
system it is the prosecutor who makes the accusation and it is upon him to
prove the accusation beyond reasonable doubt and thus relieving of the
burden. The defence is required to prove the facts it has asserted, if any.
However, it is strongly argued that under the adversarial system the burden
that is put on the prosecution is very heavy and this indirectly helps the
defendant. Common law countries insist in following these principles and this
generally has a belief that culprits can escape the clutches of law. The
presumption of innocence is also strong in this type of system. This heavy
burden on the part of the prosecution shall be discussed in depth in the
coming sections.2

The burden or obligation to prove something is called 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 obligation on a party to establish such facts in such degree of
certainty so that the facts are obvious to the judge. To give an example, in
case of murder, prosecution alleges that all the conditions constituting a
murder are fulfilled. All such conditions are facts in issue and there is an
obligation on the part of the prosecution to prove their existence. This
obligation is a burden of proof. In general, every party has to prove a fact

2
Eastern book house , Essays on Burden of Proof
that goes in his favour or against his opponent; this obligation is nothing but
burden of proof. 3

Section 101 of The Indian Evidence Act defines burden of proof as follows –
“When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.”4

Thus the burden of proving the guilt rests solely on the prosecution, the
burden usually does not shift unless for some exceptions (which are discussed
in the coming sections of the research paper).But when a clause exists for
presumption of mens rea in the statute then the job of the prosecution is
made easier. The prosecution has just to prove that the accused has done
particular acts. Once the prosecution proves this the statutory presumption of
guilty mind steps in and the accused is presumed to be guilty. But this
presumption is a rebuttable presumption i.e. the accused person will be given
a chance, though he had done an act, it was done innocently or without
any criminal intention. For this extent, burden on the prosecution to prove the
guilt of the accused beyond reasonable doubt is shifted to the accused. It is
for the accused to prove or establish his innocence, though, the standard of
proof required is not the same.5

It is no doubt, very difficult to prove the existence of mens rea by direct or

positive evidence. Courts have realised this difficulty and it has been held
that there is no need to prove the mens rea by positive evidence. It is open to
the prosecution to prove the guilty mind of the accused by his general
conduct.

The question regarding who is to prove the various facts alleged or to put in
other words, who has the burden of proof is given in the provisions in Chapter
VI from sections 101 to 114 A of the Indian evidence act. This section is

3
Law on Burden of Proof , Gopal S Chaturveli
4
Indian Evidence Act , section 101
5
Criminal law , PSA Pillai
divided into two General Rules and Specific Rules. The area that is to be dealt
upon by this research paper is of specific rules.

SPECIFIC RULES

Specific rules specifically put the burden on proving certain facts on

particular persons. According to Section 106 of the India Evidence Act, when
any fact is within the knowledge of any person, the burden of proving that
fact is upon him. When a person does an act with some intention other than
that which the character and circumstances of the act suggest, the burden
of proving that intention is upon him. For example, A is charged with traveling
on a train without a ticket. The burden of proving that he had a ticket is on
him.

The accused is presumed innocent in criminal cases. It is the prosecution who

is required to establish the guilt of the accused without any doubt. At the
same time, the accused is not required to prove his innocence without any
doubt but only has to create reasonable doubt that he may not be guilty. 6

EXCEPTIONS

Section 105, of the Indian Evidence Act deals with the burden of proof it lays
down two broad principles:

a) The accused must prove the existence of circumstances which bring the
case under general exceptions.

6
hanumant.com/LOE-Unit11-BurdenOfProof.html
 b) The court shall presume the absence of such circumstances unless they
are proved.

When an accused claims the benefit of the General Exception clauses of

IPC, (for e.g. Self-defence, Insanity, Infancy etc. i.e. from article 76 to article
106) the burden of proving that he is entitled to such benefit is upon him. For
example, if an accused claims the benefit of insanity in a murder trial, it is up
to the accused to prove that he was insane at the time of committing the
crime.7

Quoting the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC

explained this point. In this case, Nanavati was accused of murdering Prem
Ahuja, his wife's paramour, while Nanavati claimed innocence on account of
grave and sudden provocation. The defence's claim was that when
“Nanavati met Prem at the latter's bedroom, Prem had just come out of the
bath dressed only in a towel; an angry Nanavati swore at Prem and
proceeded to ask him if he intends to marry Sylvia and look after his children.
Prem replied, "Will I marry every woman I sleep with?” which further enraged
Nanavati. Seeing Prem go for the gun, enclosed in a brown packet, Nanavati
too went for it and in the ensuing scuffle, Prem's hand caused the gun to go
off and instantly kill him.”8

Here, SC held that there is a presumption of innocence in favour of the

accused as a general rule and it is the duty of the prosecution to prove the
guilt of the accused beyond any doubt. But when an accused relies upon
the general exception or proviso contained in any other part of the Penal
Code, Section 105 of the Evidence Act raises a presumption against the
accused and also throws a burden on him to rebut the said presumption.
Thus, it was upon the defence to prove that there existed a grave and
sudden provocation. In absence of such proof, Nanavati was convicted of
murder.

7
Indian evidence act , chapter VI
8
http://en.wikipedia.org/wiki/K._M._Nanavati_v._State_of_Maharashtra
PRESUMPTIONS

Court presumes the existence of various facts. For example, Section

110 presumes that the person who is in possession of a property , he is
assumed to be the owner of the property. As per Section 113A, When the
question is whether the commission of suicide by a woman had been
abetted by her husband or any relative of her husband and it is shown that
she had committed suicide within a period of seven years from the date of
her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having regard to all the
other circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband. As per Section 113B, when the
question is whether a person has committed the dowry death of a woman
and it is shown that soon before her death such woman had been subjected
by such person to cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such person had caused the
dowry death. Thus, when the presumption of the court is in favour of a party,
the burden of disproving it rests on the opposite party. 9

APPLICATION OF BURDEN OF PROOF IN INDIA

In India, Burden of proof is embedded in chapter VI of the Indian evidence

act as already discussed.

Sec. 4 of the Act defines the phrase: "shall presume". It states that whenever
it is directed by the Act that the court shall regard such fact as proved, unless
and until it is disproved. Sec. 3 of the Act defines the words "proved" and

9
Indian Evidence Act , Chapter VI
"disproved." It relies upon the prudent man's hindsight to weigh the
probabilities of the existence or non-existence of a fact. If on weighing the
probabilities one acts upon the supposition that a fact exists or does not exist,
then the fact is said to be proved or disproved, respectively. Therefore, on a
literal reading of the relevant sections of the Act, it is clear that in cases
concerning general exceptions the accused has to prove his case on a
preponderance of probabilities. 10

JUDICIAL INTERPRETATION :

The judiciary strictly has not adhered to the provisions of the Act. Right from
the age-old decision of the Allahabad High Court in Parbhoo v.State to the
Supreme Court's decision in Vayaee Singh a State of U.P. the judiciary has in
numerous cases followed consistent principles. The following principles may
be derived from the said decisions.

a) The prosecution must prove beyond reasonable doubt that the accused
has committed the offence.

b) The accused may, after making his plea, prove his case beyond
reasonable doubt

c) The accused is entitled to a benefit, if he manages to create a reasonable

doubt as to the ingredients of the offence, even if he fails to prove his case
under general exceptions. 11

Practically, therefore, the burden of proof on the accused in cases of general

exceptions is lighter than that prescribed by the Act. While the Act requires
the accused to prove his plea on a preponderance of probabilities, the
judiciary has diluted it and allows the accused to benefit from the general

10
See sec.3 of the Indian Evidence Act, 1972
11
Law on Burden of Proof , Gopal S Chaturveli
exceptions if he merely creates a reasonable doubt as to ingredients of the
offence itself.

The Indian Judiciary blindly following of the principles of common law,

namely, "the accused is presumed to be innocent until proved guilty", “the
prosecution has to prove the guilt of the accused beyond reasonable
doubt," "the accused is entitled to benefit even if there is a doubt as to the
ingredients of the offence", has led to the dilution of the principles enshrined
in the Act.

These principles which are laid down by the judiciary can be traced back to
the to English cases, especially Woolmington v. D.P.P.9 In that case, the Court
of Appeal laid down that the 'burden of proof' is on the prosecution to prove
beyond reasonable doubt that the offence was committed and the
accused need not prove his innocence. In the same case, Viscount Sankey12,
L.C. observed:

“When death or malice has been given, the prisoner is entitled to show by
evidence or by examinations of the circumstances adduced by the crown
that the act on his part which caused death was either unintentional or
provoked. If the jury are either satisfied with his explanation or, upon a review
of all the evidence, are left in a reasonable doubt whether he committed the
offence, even if his explanation be not accepted the prisoner is entitled to be
acquitted."

This principle was followed in Parbhoo v. State by.13 The Allahabad High
Court to interpret sec. 105 of the Act. The judiciary, time and again
recognised, reiterated and followed the principle of Woolmington's Case, so
much so, that it became the law governing the burden of proof in relation to
general exceptions. For applying the principles used in Woolmington’s case
the Indian judiciary is opined at committing a blunder resulting in disastrous

12
1st Viscount Sankey GBE KStJ PC KC was a British lawyer, judge, Labour politician and Lord Chancellor of
Great Britain, famous for many of his judgments in the House of Lords
13
http://indiankanoon.org/doc/640356/
consequences for the prosecution. A perusal of the Woolmington ratio and S.
105 of the Act show that they operate at two different levels. S.105 deals with
"burden of proof' on the accused to prove that his action of committing the
offence falls within general exceptions, while the Woolmington ratio deals
with the benefit that an accused can avail when the prosecution has failed
to prove the case against the accused. Combining the two has led to various
unwarranted consequences. Some of them are:

a) Sec. 105 of the Act has become redundant;

b) There is a mix up of two distinct stages in a trial, one is the prosecution

proving the offence, and the accused proving general exceptions, and more
importantly, it has resulted in an undue burden on the prosecution. The
prosecution now have to not only prove the offence beyond reasonable,
doubt, but also have to prove that the act resulting in the offence does not
fall within the general exceptions. The latter, also, has to be proved to such
an extent, so as to dispel any 'reasonable doubts' as to the commission of the
offence. On the other hand, the accused merely has to raise the plea of
general exceptions and, if necessary, has to highlight the drawbacks in the
prosecution’s case to show that there is a "reasonable doubt" as to the
offence itself.

All these above said consequences were highlighted by the case of J.D.
Vanubhai vs. State in 1952. In that case, the Court warned about following
the Woolmington ratio to interpret sec. 105 of the Act. This approach was
followed by a few High Courts initially and indirectly by the Supreme Court in
State of M.P. Ahmadulla. But they have not been sufficient to stop the total
sellout to the Woolmington ratio. 14

The burden on the prosecution is onerous in a criminal trial. It has to prove the
case beyond reasonable doubt. But due to the judicial interpretation given

14
http://www.peterjepson.com/law/woolmington-v-dpp.htm
to Sec.105 it now has also got to prove that general exceptions are not
attracted by the facts of the case.

CONCLUSION:

It is clear that the burden of proof on the prosecution is far beyond what is
prescribed by the legislature. This is due to the judiciary’s anxiety that no
innocent should be punished and the accused should avail all the benefits
during a trial, this can be understood as the punishment given is mostly of
grave degree. It can even be capital punishment. But the prosecution is the
sufferer here. Its already onerous job has increased and assumes
disproportionate volumes considering the efficiency of the investigating
agencies and the various rights guaranteed to individuals by the Constitution.
This additional burden on the prosecution also spells doom, in the light of the
increase in organised crime and other socio-economic offences. The dawn
of liberalisation in the nation which threatens to bring in a new era of crimes
also has great repercussions in light of the prosecution's onerous burden. This
inevitably will have an effect on the conviction rate. Therefore, it is perhaps
the right time for the judiciary to ponder over the issue and move in direction
so as to reduce this unwarranted and unnecessary burden on the
prosecution.