India has adopted adversarial system of criminal justice which is similar to common law. When a case is tried both the prosecution and defence party keeps their pleading and trial material before the jury or judge so that they can come to some conclusion which is at the side of truth. So, here the role of public prosecutor is to plead on behalf of prosecution to the judge and the counsel of defence will with the permission of the court and plead on behalf of defendant and can also examine the witnesses.
Now, here the question arises which counsel has the burden of proof that it can create the reasonable doubt into the mind of the judge? So, it is the fact that the prosecution will have the burden of proof to prove defendant guilty as according to article 22 of the Indian Constitution, the accused shall be innocent until that person is proved guilty. As we learnt, in most of the cases the party has to prove that the party is innocent and allegation too to be proved and then the decision will lies to the judges. But sometimes both the parties are allowed to produce and introduce its evidence so that they can prove the party innocent for the contesting question of issues.
Provision of burden of proof in the Indian Evidence Act, 1872
The chapter VII of the Indian Evidence Act, 1872 has covered the provision for the Indian Evidence Act, 1872. It has covered the meaning of the burden of proof and to whom ii ties and what are those particular facts and at the same time there are some exceptions to it. The section which discusses the meaning of the burden of proof is under the section 101 of the act. Therefore there is a need to prove by the prosecution beyond the reasonable doubt or else it will cause acquittal of the accused as happened in the case of Ouseph v. State of Kerala(2004) 4 SCC 446. It was also stated in the case of Jarnail Singh v. State of Punjab AIR 1996 SC 755, that the prosecution duty is to prove the allegation beyond the reasonable doubt and if it fails then the accused person will automatically will be eligible for the acquittal. It is also necessary to have the burden of proof to the right party or else the judicial system will be impaired.
The section 101 also brings up the scope that the burden of proof will always lies with the prosecution and it is there duty to not allow acquittal for the accused. It is necessary that the reasonable doubt should be created so that the case relies on the prosecution side. In case of Krishnan Assari Velayudhan Asari v. Parmeshwaran Pillai Madhawan Pillai, (AIR 1989 Ker. 163) there was one mortgage deed and there was sub- mortgage to it done. So there was some issues raised and the mortgagor had full knowledge of the fact and here in the case the burden of proof will lies to that party which has the allegation. There was also one case where the burden of proof will lie onto that party who alleges the execution of the will, when that will is made under some coercion.
There is one doctrine which is important to be understood under section 101 of the act. It stated that the court will always first presume that the accused is innocent and after the trial only it will come to conclusion either to convict him or acquit him. So, this right of presumption of innocence come under the article 12 of Universal Declaration of Human Rights and article 21 of the constitution. So this right is a human right and this doctrine is known as doctrine of ‘reverse burden’.
Burden of proof can be divided into two kinds. One is the burden of proof on pleading and it is determined based on facts or law or presumption of both facts and laws. And this particular kind is discussed in section 101 of the Act and this kind will always stick to substantive law. Second kind is dealt in the section 102 of the Act which covers the burden of proof by adducing evidence. In this burden of adducing evidence lies when a party doesn’t led down the evidence. This is also called onus probandi. This section is described as shifting burden of proof. Like for an example, there is one prima facie case and according to section 101 of the act, the prosecution will always have burden of proof but through this section there is a shift of the burden of proof to the defendant.
This burden of proof shifts not only in the prima facie case but also shifts constantly when the trial is going on, as decided in the case of Zwinglee v. State of Madhya Pradesh (AIR 1954 SC 15). In another case of Triro v. Deo Raj (AIR 1993 J.&K. 14) the case filling was delayed and the defendant took the plea which was done within the limitation period. Through this burden of proof shifted to the plaintiff.
The section 103 of the act is similar to section 101 of the act, but the section 103 only focuses on the particular fact rather than the whole fact and trial. For an example, the prosecution has the burden of proof, but there are some situations when the defendant has the burden of proof for some particular fact. There are some circumstances when the person wants to prove any fact so that the other fact gets rendered by the evidence, so in these cases the burden of proof will lie to that particular person. This provision has been taken by the section 104 of the act.
There are some exceptions to this burden of proof that is covered by section 105 of the act and theses exceptions are divided into general exception which has been covered in the Indian Penal Code and another is specific exception for specific law. So, there are chances when the accused has the shift of the burden of proof and he will have burden of proof. In case of Kashi Ram v. State of UP (AIR 2001 SC 2902) the accused has the exception of self defence and the burden of proof lies upon him. It is also important for the prosecution to prove that the accused has mens rea in the offence and also the accused has to prove beyond the reasonable doubt so his chances for acquittal arises.
Now the different exception under the section 105 of the act is covered. First one is the self defence and this burden of proof lie on the accused and if he does so then he will be acquitted. It was also held in the case of Rizan and others v. State of Chhattisgarh (AIR 2003 SC 976) through Chief Secretary, Govt. Of Chhattisgarh, Raipur the court held the burden of the proof lies with the accused and it is his duty to create reasonable doubt. And this case brought the doubt and it was reasonable apprehension of the act which is element of private defence in Indian Penal Code. If the accused doesn’t plead for the self defence, in self-defence cases, the court cannot be held wrong when conviction order is passed.
Second one is insanity and it is discussed under section 84 of the Indian Penal Code. It is necessary for the accused to prove his insanity during the occurrence of the offence. It was also explained in the case of Bhikhari v. State of UP (AIR 1996 SC 1) that it is important that the insanity is proved so that the reasonable doubt arises. Then the cases of defamation comes, which is covered under the section 499 of the Indian Penal code, then the burden of proof will shift to that person who has the plea of justification. The exception of insanity will be covered under be proved based on the maturity of the child and the burden of proof will then always lies to the defence party.
Then come the section 106 of the act which states if any person has the knowledge about any party whether it is of negative character or affirmative character, then the duty of creating reasonable doubt is with him. In the case of Gurdayal v. Smt. Malti Devi (AIR 1993 All.90 37) there was some knowledge of fact which was only with that tenant, so the tenant here has the burden of proof. This knowledge based burden of proof only lies with the parties to the suit. This section is an exception to the section 101 of the act, as it gives the burden of proof not to prosecution but to person who has knowledge of the fact. In case of Eshwaraiah v. Karnataka ((1994) 2 SCC 677) a person was killed and two of the people were hiding there. Then in this case that man and woman are the person who has the specific knowledge of the case so burden of proof lies to them.
The sections 107 and 108 are related to the death of the persons. Former one talks about the person who is considered dead but in reality he is alive, so in these types of the cases the burden of proof will lie to the person who pleads or affirm such things. There is one more element to this that the proof should be done within the thirty years from the declaration of death of the person. The latter on states for a person to be alive when he is not heard for the seven years and again the burden of proof lies on the person who affirms it.
There is also one provision in the act which was inserted by the Criminal Law (Second Amendment) Act, 1983. The section 113A of the Evidence act deals with the cases where it is presumed that the husband and his family will be liable for the married woman who commits the suicide within the seven years. So here the court can presume such fact when there was some cruelty done before her death. The section 113B of the act is also similar to the former section, but here the dowry death is covered and husband and his family will be liable if they had demanded for the dowry. But the court can make presumption when the women had faces some harassment or cruelty.
The section 114A of the act was inserted by the criminal Amendment Act 2013, And it stated that if a girl has been raped and all the provision of the section 376 of the Indian Penal Code has been covered and there was so consent of the girls, then the court can presume that the girl was raped and rapist will be charged of conviction.
Shreya
Symbiosis Law School
