Relevance Of Burden Of Proof

Importance of Burden of Proof in Criminal Proceedings

HIDAYATULLAH NATIONAL LAW UNIVERSITY CRIMINAL HONOURS I PROJECT ON IMPORTANCE OF BURDEN OF PROOF IN CRIMINAL PROCEEDINGS SUBMITTED TO MS SHREEJAYA RAJKUMAR PATIL SHASHWAT DUBEY SEMESTER IX ROLL NO. 139 SUBMITTED ON 26TH SEPTEMBER 2016

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Importance of Burden of Proof in Criminal Proceedings ACKNOWLEDGEMENT

I would like to sincerely thank the Criminal Honours I Faculty Ms Shreejaya Patil for giving me this project on the “Importance of Burden of Proof in Criminal Proceedings” which has widened my knowledge on the scope and relevance of Burden of Proof in the Criminal Proceedings in India. Her guidance and support has been instrumental in the completion of this project .Thank you Ma’am for your consistent support. I’d also like to thank all the authors, writers and columnists whose ideas and works have been made use of in the completion of this project. My sincere gratitude also goes out to the staff and administration (HNLU) for the infrastructure in the form of our library and IT lab that was a source of great help in the completion of this project. I would also like to thank my friends who have lended me constant support through guidance and inputs which has led to the completion of this project.

SHASHWAT DUBEY SEMESTER IX

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Importance of Burden of Proof in Criminal Proceedings

CONTENTS

 DECLARATION...........................................................................(I)  CERTIFICATE.............................................................................(II)  TABLE OF CASES.....................................................................(III)    CHAPTER 1  INTRODUCTION...............................................................(4-5)  RESEARCH METHADOLOGY..........................................(5)    CHAPTER 2: GENERAL CONCEPT OF THE BURDEN OF PROOF  GENERAL RULES................................................(6-11)  ONUS OF PROVING BURDEN............................(12-17)    CHAPTER 3: SPECIFIC RULES   EXCEPTIONS........................................................(18-19)    CHAPTER 4: RELEVANCE OF BURDEN OF PROOF  STANDARD OF PROVING DEFENCE..............................(20)  CONCLUSION.....................................................................(21-22)    BIBLIOGRAPHY AND WEB REFERENCES .....................(23)

DECLARATION I, Shashwat Dubey, hereby declare that, the project work entitled, ‘Importance of Burden of Proof in Criminal Proceedings’ submitted to H.N.L.U., Raipur is

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Importance of Burden of Proof in Criminal Proceedings record of an original work done by me under the guidance of Ms Shreejaya Patil, Faculty Member, H.N.L.U., Raipur. Shashwat Dubey Batch XII Roll No. 139 22/09/2016

CERTIFICATE This is to certify that I, Shashwat Dubey, have prepared the project work entitled, ‘Importance of Burden of Proof in Criminal Proceedings’ which is 4

Importance of Burden of Proof in Criminal Proceedings submitted to H.N.L.U., Raipur, which is record of an original work done by me under the able guidance of Ms Shreejaya Rajkumar Patil, Faculty Member, H.N.L.U., Raipur. Shashwat Dubey Batch XII Roll No. 139 22/09/2016

Table of Cases S.No . 1.

Name of the case

Citation

Soward vs Legatt

AER VOL I 1836 Page 49 5

Importance of Burden of Proof in Criminal Proceedings 2.

Ranchhodbhai vs Babubhai

AIR 1986 SC 579

3.

KM Nanavati vs State of Maharashtra

AIR 1962 SC 537

4.

Pratap vs State of UP

AIR 1983 SC 4687

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Importance of Burden of Proof in Criminal Proceedings CHAPTER I: INTRODUCTION AND OBJECTIVES OF THE RESEARCH 1.1 Introduction

Section 105 of the Evidence Act deals with the Burden of Proof. According to this Section, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Section 105 has a special characteristic. It is only applicable to criminal cases when an accused is interested to take benefit of ‘the general exceptions of the Indian Penal Code or of any of the special laws. The general principles relating to burden of proof are: (i) the accused is always presumed to be innocent, and (ii) it is prosecution to prove the guilt of the accused. It is only after the prosecution to discharge its initial traditional burden establishing the complicity of the accused. Under section 105 the burden lies on the accused. Once the prosecution has been successful to prove the guilt beyond reasonable doubt that the accused had committed offence. It is immediately shifted to the accused who, if he so desires, may set up a defense of bringing his case within general exceptions of I.P.C. or within special exception or proviso contained in any part of the same code or any other law. For example, in a murder case the prosecution proved that it was a case of murder under section 300, I.P.C. The accused alleged that by grave and sudden provocation he was deprived of the power of self-control. The burden of proof lies on the accused 1. Similarly, an accused of murder alleged that by reason of unsoundness of mind he did not know the nature of act what he had done. The burden lies on the accused. 1 Section 300 of the Indian Penal Code. 7

Importance of Burden of Proof in Criminal Proceedings It is prescribed rule 2that the burden is on the accused to prove the existence of circumstances bringing his case within any of the exceptions. The said rule does not whittle down the axiomatic rule of burden of proof that the prosecution must prove that the accused has committed the offence charged against them.

2 Section 105 of the Evidence Act 8

Importance of Burden of Proof in Criminal Proceedings RESEARCH METHODOLOGY: PROBLEM OF THE STUDY The basic problem of the study of this project report relates to the question of the burden of proof in criminal proceedings under The Law of Evidence. RATIONALE OF THE STUDY The rationale behind the study is to examine the relevance of the Burden of Proof in the Criminal Proceedings in India OBJECTIVES The objectives of this project report are stated as follows: 1. To analyse the system provisions relating to the Burden of proof in criminal proceedings. 2. To inquire into the relevance and need for the burden of proof in Criminal proceedings. HYPOTHESIS The researcher proceeds to prepare the project report with the idea that burden of proof is an indispensable provision for the principle of natural justice to apply. REVIEW OF LITERATURE Various books, articles and journals have been referred to in the preparation of this project report. “Law of Evidence by Batuk Lal” is the primary source which has been heavily relied upon for the preparation of this project report. The book discusses all the basic elements relating to the judicial accountability needed to make Judiciary accountable. RESEARCH DESIGN The nature of study involved in the preparation of this project report is doctrinal in nature. This project has been done after a thorough research based upon intrinsic and extrinsic aspects of the topic. SOURCES OF DATA 9

Importance of Burden of Proof in Criminal Proceedings Both primary and secondary sources of data have been used in the completion of this project report. The following primary sources of data have been used in the project1. Legislations 2. Case Laws or Precedents 3. Government reports The following secondary sources of data have been used in the project1. 2. 3. 4.

Articles Books Journals Websites

CHAPTERIZATION This project report is basically divided into four chapters (including the introduction) which are further divided into sub-chapters dealing with the specific issues in relation to the chapter in study. Chapter I is the introductory chapter which deals with the basic outline of ordinances. Chapter II deals with general concept as to the Burden of proof. Chapter III deals with General Rules and Chapter IV deals with the standard of proving defence.

LIMITATION The scope of study of this project report is limited to the study of the Burden of proof under the Evidence Act.

CHAPTER II GENERAL CONCEPT OF BURDEN OF PROOF 10

Importance of Burden of Proof in Criminal Proceedings

The responsibility to prove a thing is called the burden of proof. When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged and they need to be proved before the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. In general, every party has to prove a fact that goes in his favor or against his opponent, this obligation is nothing but burden of proof. Section 101 Of 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. The important question is who is supposed to prove the various facts alleged in a case3. In other words, on whom should the burden of proving a fact lie" The rules for allocation of burden of proof are governed primarily by the provisions in Section 101 to 105. The rules propounded by these sections can be categorized as General rules and Specific rules.

GENERAL RULES 3 Section 101 of the Evidence Act 11

Importance of Burden of Proof in Criminal Proceedings Rule 1 As per Section 101, specifies the basic rule about who is supposed to prove a fact. It says that 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. For example, A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. Another example - A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.

Facts can be put in two categories - those that positively affirm something and those that deny something. For example, the statement, "A is the owner of this land" is an affirmative statement, while "B is not the owner of this land" is a denial. The rule given in Section 101 means that the person who asserts the affirmative of an issue, the burden of proof lies on his to prove it. Thus, the person who makes the statement that "A is the owner of the land", has the burden to prove it. This rule is useful for determining the ownership of the initial burden. Whoever wishes the court to take certain action against the opposite party based on certain facts, he ought to first prove those facts.

However, it is not very simple to categorize a fact as asserting the affirmative. For example, in the case of Soward vs Legatt,4 a landlord suing the tenant asserted that the tenant did not repair the house. Here, he was asserting the negative. But the same statement can also be said affirmatively as the tenant let the house dilapidate. In this case, Lord ABINGER observed that In ascertaining which party is asserting the affirmative the court looks to the substance and not the language used. Looking at the substance of this case, the plaintiff had to prove that the premises were not repaired.

4 AER VOL I 1836, 48. 12

Importance of Burden of Proof in Criminal Proceedings Thus, the court should arrive at the substance of the issue and should require that party to begin who in substance, though may not be in form, alleges the affirmative of the issue.

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Importance of Burden of Proof in Criminal Proceedings Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof, which was explained in the case of Ranchhodbhai vs Babubhai5. The first one is the burden to prove the main contention of party requesting the action of the court, while the second one is the burden to produce actual evidence. The first one is constant and is always upon the claimant but the second one shifts to the other party as and when one party successfully produces evidence supporting its case. For example, in a case where A is suing B for payment of his services, the burden of proof as a matter of law is upon A to prove that he provided services for which B has not paid. But if B claims that the services were not up to the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in service. Further, if upon providing such evidence, A claims that the services were provided as negotiated in the contract, the onus again shifts to A to prove that the services meet the quality as specified in the contract.

The next rule determines who has the onus of proof.

Rule 2 – 5 AIR 1982 SC 485 14

Importance of Burden of Proof in Criminal Proceedings As per Section 102, 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. The following illustrations explain this point Illustration 1 - A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

Rule 3 – As per Section 103, the person who wants the court to believe in an alleged fact is the one who is supposed to prove that fact unless it is provided by any law that the proof of that fact shall lie on any particular person. For example, A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. Another example - B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. Further, as specified in Section 104, if a person wants the court to believe in a fact that assumes the existence of another fact, it is up to the person to prove the other fact also. For example, A wishes to prove a dying declaration by B. A must prove B's death. A wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

CHAPTER III 15

Importance of Burden of Proof in Criminal Proceedings Specific Rules These rules specifically put the burden on proving certain facts on particular persons -

Rule 1 - As per Section 106, when any fact is especially 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 railway without a ticket. The burden of proving that he had a ticket is on him.

Rules of Presumption Section 107 and 108 say that if a person was known to be alive within 30 yrs the presumption is that he is alive and if the person has not been heard of for seven years by those who have naturally heard from him if he had been alive, the presumption is that the person is death. But no presumption can be draw as to the time of death. Sections 109 establishes the burden in case of some relations such as landlord and tenant, principle and agent etc. Further sections specify the rules about burden of proof in case of terrorism, dowry death, and rape.

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Importance of Burden of Proof in Criminal Proceedings Exceptions Exception 1 The general rule in criminal cases is that the accused is presumed innocent. 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. Section 105 specifies an exception to this general rule. When an accused claims the benefit of the General Exception clauses of IPC, 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. In the case of K M Nanavati vs State of Maharashtra,6 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. 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.

6 AIR 1962 SC 537 17

Importance of Burden of Proof in Criminal Proceedings Exception 2 Admission - A fact which has been admitted by a party and which is against the interest of that party, is held against the party. If the fact is contested by the party, then the burden of proof rests upon the party who made the admission. For example, A was recorded as saying that he committed theft at the said premises. If A wants to deny this admission, the burden of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain things. For example, as per Section 107/108, court presumes that a person is dead or alive based on how long he has not been heard of. Section 109, presumes that when two people have been acting as per the relationship of landlord - tenant, principle - agent, etc, such relationship still exists and anybody who contends that such relationship has ceased to exist has to provide proof7. Section 110 presumes that the person who has the possession of a property is the owner of that 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 favor of a party, the burden of disproving it rests on the opposite party.

7 Section 109 of Evidence Act 18

Importance of Burden of Proof in Criminal Proceedings CHAPTER IV RELEVANCE OF THE BURDEN OF PROOF Standard of proving defense: Under section 105 if an accused claims for the benefits of exceptions the burden of proving the case must fall within exception and it lies upon him. But the onus of proof by the accused is not exactly the same as that of the prosecution. An accused is not required to adduce leading evidence to prove his case beyond reasonable doubt. “The Evidence Act does not contemplate that the accused should prove his case with the same strictness and vigour as the prosecution is required to prove in a criminal charge. It is sufficient if he is able to prove his case by the standard of preponderance of probabilities envisaged by Section 105 of the Evidence Act.” Thus, the law requires that the onus of proof placed on the accused claiming the benefit of exceptions and must be tested by the standard of “preponderance of probability.” While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability. The Supreme Court has made it clear if the evidence is not sufficient to discharge the burden under section 105 it may raise a reasonable doubt as regards the one or other of the necessary ingredients of the offence itself in which case the accused would be entitled to be acquitted. In Pratap v State of U.P8. where the probability that the accused had caused death in selfdefense was held to be sufficient even though he had not taken his defense in the committal proceedings. Again the Supreme Court held that the burden of proving that the case comes within any of the general exceptions can be discharged by showing a preponderance of probability. Under section 105 of the Evidence Act the burden of proof is on the accused, who sets up the plea of self-defence, and in the absence of proof, it is not possible for the court to presume the truth of the plea of self defence.

8 AIR 1983 SC 4687 19

Importance of Burden of Proof in Criminal Proceedings 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 stolen articles, and they had no explanation for their possession. An adverse inference can be drawn against the accused of murder and robbery.’ While the prosecution is required to probe the case beyond reasonable doubt, the accused can discharge the onus by establishing a mere 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 a 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 defense is pleaded, the burden of the accused only shifts after the prosecution has discharged its initial burden of proving its case beyond reasonable doubt. Consequently, the weakness in the defense case would not ensure advantage of the prosecution. “Which is still to discharge its original onus that never shifts?”

Where an accused person in his statement under section 313, Cr. PC raised the defense 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 defense of Exception 1 to Section 300 of I.P.C.

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Importance of Burden of Proof in Criminal Proceedings Suggestion:

In criminal trial it is a general principle that a person accused of crime is always presumed to be innocent and the prosecution on whom burden lies is to prove the guilt of the accused beyond reassemble doubt. In criminal trial the degree of probability of guilt has been very much higher. Though this standard is a higher standard, there is no absolute standard. No man can be convicted of an offence 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 benefit of it must be given to him.” Where the presumption of innocence is reversed by a statutory provision, the burden is on the accused person. Where an assault rifle is found in innocent possession of a person, the Supreme Court held that such burden should not be heavy as that of the prosecution but even so should be greater probability. The researcher would suggest a strict adherence to the aforesaid discussed rules in order to ensure that the trial is just, fair and reasonable for the accused. For this, a strict survelliance is the need of the hour.

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Importance of Burden of Proof in Criminal Proceedings

CONCLUSION The term Burden of Proof is used in two difference senses - the burden of proof as a matter of law and pleading, and the burden of proof as a matter of adducing evidence also called as onus. There is a subtle distinction between burden of proof and onus of proof. The responsibility to prove a thing is called the burden of proof. When a person is required to prove the existence or truthfulness of a fact, he is said to have the burden of proving that fact. In a case, many facts are alleged and they need to be proved before the court can base its judgment on such facts. The burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case. For example, in a case of murder, prosecution may allege that all the conditions constituting a murder are fulfilled. All such conditions are facts in issue and there is an obligation to prove their existence. This obligation is a burden of proof. No man can be convicted of an offence 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 benefit of it must be given to him.” Where the presumption of innocence is reversed by a statutory provision, the burden is on the accused person. Where an assault rifle is found in innocent possession of a person, the Supreme Court held that such burden should not be heavy as that of the prosecution but even so should be greater probability. Thus the Principle of Burden of Proof is very essential for the due administration of justice.

REFERNCES BOOKS 22

Importance of Burden of Proof in Criminal Proceedings  Batuk Lal, law of evidence, Volume 2, 95th ed,2010)  Ratanlal and Dhirajlal, The Law of Evidence (23rd ed,2011)  Sarkar, Law of Evidence (17th ed, 2010)

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WEBSITES www.manupatra.com www.heinonline.com www.westlaw.com www.indiakanoon.com

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