SASI K.G.
01. INTRODUCTION
When all normal
procedures of a trail fail, as the last resort of proving innocence, as
prescribed by the ancient laws of Manu and Yajnavalkya, an accused may undergo
either of the seven material tests to truth, namely the tulapareeksha,
agnipareeksha, jala pareeksha, visha pareeksha, kosha pareeksha, thandula
pareeksha, and saptamashaka pareeksha, according to the caste or social status
of the accused. In Kerala the first four of these tests were prevalent until
1844-45 and ceased to exist consequent to a declaration by Swati Tirunal of
Travancore[i].
Consequent to The
Contagious Diseases Acts of the nineteenth century in Europe, and as an attempt to eradicate venereal disease among soldiers and sailors, the
Governments had enacted legislation which provided for designated army towns and
ports, in which special police forces would identify women prostitutes. The
prostitutes were then required to submit to regular medical treatment, or if
they refused, to appear in court. The court had the power to order the examinations.
The burden of proof relating to a charge of being a prostitute lay on the woman
accused[ii]. These Acts however got repealed in 1886.
The early
jurisprudence books of England, had the concept of ‘burden of proof’ as one
among the least discussed topics under the subject. Only in the second half of
the nineteenth century did the concept of ‘burden of proof’ evolve in a
definite shape, and found its permanent place in the legal literature of India,
in the form of provisions contained in Sections 101 to 114 of the Indian
Evidence Act, No. 1 of 1872.
02. What is Burden of Proof?
The term "burden of proof" is used to
mean two kinds of burdens: The burden of production (or the burden of
"going forward with the evidence") and the burden of persuasion.
A "burden of persuasion" or
"risk of nonpersuasion" is an obligation that remains on a single
party for the duration of the court proceeding. Once the burden has been
entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in
its claim. For example, the presumption of
innocence in a criminal
case places a legal burden upon the prosecution to prove all elements of the
offense (generally beyond a reasonable doubt), and to disprove all the defenses
except for affirmative defenses in which the proof of non-existence of
all affirmative defense(s) is not constitutionally required of the prosecution.
The burden of persuasion should not be confused
with the evidential burden, or burden of production, or duty of
producing (or going forward with) evidence which is an obligation that may
shift between parties over the course of the hearing or trial. The evidential
burden is the burden to adduce sufficient evidence to properly raise an issue
at court.[iii]
03. Burden of Proof as provided in Indian Evidence Act, 1872
The major provisions containing various aspects
of burden of proof as described in Indian Evidence Act, 1872, Sections 101 to
114A are reproduced hereunder.
101.
Burden of proof:
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.
When
a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Illustrations
(a)
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.
(b)
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.
102.
On whom burden of proof lies:
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.
Illustrations
(a)
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.
(b)
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.
103.
Burden of proof as to particular fact:
The
burden of proof as to any particular fact lies on that person who wishes the
Court to believe in its existence, unless it is provided by any law that the proof
of that fact shall lie on any particular person.
Illustration
(a)
A prosecutes B for theft, and wishes the Court to believe that B admitted the
theft to C. A must prove the admission.
B
wishes the Court to believe that, at the time in question, he was elsewhere. He
must prove it.
104.
Burden of proving fact to be proved to make evidence admissible:
The
burden of proving any fact necessary to be proved in order to enable any person
to give evidence of any other fact is on the person who wishes to give such
evidence.
Illustrations
(a)
A wishes to prove a dying declaration by B. A must prove B's death.
(b)
A wishes to prove, by secondary evidence, the contents of a lost document.
A
must prove that the document has been lost.
105.
Burden of proving that case of accused comes within exceptions:
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, 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.
Illustrations
(a)
A, accused of murder, alleges that, by reason of unsoundness of mind, he did
not know the nature of the act.
The
burden of proof is on A.
(b)
A, accused of murder, alleges that, by grave and sudden provocation, he was
deprived of the power of self-control.
The
burden of proof is on A.
(c)
Section 325 of the Indian Penal Code provides that whoever, except in the case
provided for by section 335, voluntarily causes grievous hurt, shall be subject
to certain punishments.
A is
charged with voluntarily causing grievous hurt under section 325.
The
burden of proving the circumstances bringing the case under section 335 lies on
A.
106.
Burden of proving fact especially within knowledge:
When
any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him.
Illustrations
(a)
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.
(b)
A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.
107.
Burden of proving death of person known to have been alive within thirty years:
When
the question is whether a man is alive or dead, and it is shown that he was
alive within thirty years, the burden of proving that he is dead is on the
person who affirms it.
108.
Burden of proving that person is alive who has not been heard of for seven
years:
[Provided
that when][iv] the question is whether a man is alive or dead, and it is
proved that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of proving that he
is alive is [shifted to][v] the
person who affirms it.
109.
Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent:
When
the question is whether persons are partners, landlord and tenant, or principal
and agent, and it has been shown that they have been acting as such, the burden
of proving that they do not stand, or have ceased to stand, to each other in
those relationships respectively, is on the person who affirms it.
110.
Burden of proof as to ownership:
When
the question is whether any person is owner of anything of which he is shown to
be in possession, the burden of proving that he is not the owner is on the
person who affirms that he is not the owner.
111.
Proof of good faith in transactions where one party is in relation of active
confidence:
Where
there is a question as to the good faith of a transaction between parties, one
of whom stands to the other in a position of active confidence, the burden of
proving the good faith of the transaction is on the party who is in a position
of active confidence.
Illustrations
(a)
The good faith of a sale by a client to an attorney is in question in a suit
brought by the client. The burden of proving the good faith of the transaction
is on the attorney.
(b)
The good faith of a sale by a son just come of age to a father is in question
in a suit brought by the son. The burden of proving the good faith of the
transaction is on the father.
[111A.
Presumption as to certain offences:
(1)
Where a person is accused of having committed any offence specified in
sub-section (2), in -
(a)
any area declared to be a disturbed area under any enactment, for the time
being in force, making provision for the suppression of disorder and
restoration and maintenance of public order; or
(b)
any area in which there has been, over a period of more than one month,
extensive disturbance of the public peace, and it is shown that such person had
been at a place in such area at a time when firearms or explosives were used at
or from that place to attack or resist the members of any armed forces or the
forces charged with the maintenance of public order acting in the discharge of
their duties, it shall be presumed, unless the contrary is shown, that such
person had committed such offence.
(2)
The offences referred to in sub-section (1) are the following, namely: -
(a)
an offence under section 121, section 121A, section 122 or section 123 or the
Indian Penal Code (45 of 1860).
(b)
criminal conspiracy or attempt to commit, or abetment of an offence under
section 122 or section 123 of the Indian Penal Code (45 of 1860).][vi]
112.
Birth during marriage, conclusive proof of legitimacy:
The
fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be conclusive proof that he
is the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have been
begotten.
113.
Proof of cession of territory:
A
notification in the Official Gazette that any portion of British territory has
[before the commencement of Part III of the Government of India Act, 1935][vii] been
ceded to any Native State, Prince or Ruler, shall be conclusive proof that a
valid cession of such territory took place at the date mentioned in such
notification.
[113A.
Presumption as to abetment of suicide by a married woman:
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.
Explanation:
For the purposes of this section, "cruelty" shall have the same
meaning as in section 498A of the Indian Penal Code (45 of 1860)][viii]
[113B.
Presumption as to dowry death:
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.
Explanation:
For the purposes of this section, "dowry death" shall have the same
meaning as in section 304B of the Indian Penal Code (45 of 1860).][ix]
114.
Court may presume existence of certain facts:
The
Court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct and
public and private business, in their relation to the facts of the particular
case.
Illustrations
The
Court may presume -
(a)
that a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can
account for his possession;
(b)
that an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
(c)
that a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
(d)
that a thing or state of things which has been shown to be in existence within
a period shorter than that within which such things or states of things usually
cease to exist, is still in existence;
(e)
that judicial and official acts have been regularly performed;
(f)
that the common course of business has been followed in particular cases;
(g)
that evidence which could be and is not produced would, if produced, be unfavourable
to the person who withholds it;
(h)
that if a man refuses to answer a question which he is not compelled to answer
by law, the answer, if given, would be unfavourable to him;
(i)
that when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.
But
the Court shall also have regard to such facts as the following, in considering
whether such maxims do or do not apply to the particular case before it: -
As
to illustration (a) - A shop-keeper has in his till a marked rupee soon after
it was stolen, and cannot account for its possession specifically, but is
continually receiving rupees in the course of his business:
As
to illustration (b) - A, a person of the highest character is tried for causing
a man's death by an act of negligence in arranging certain machinery. B, a
person of equally good character, who also took part in the arrangement,
describes precisely what was done, and admits and explains the common
carelessness of A and himself:
As
to illustration (b) - A crime is committed by several persons. A, B and C,
three of the criminals, are captured on the spot and kept apart from each
other. Each gives an account of the crime implicating D, and the accounts
corroborate each other in such a manner as to render previous concert highly
improbable:
As
to illustration (c) - A, the drawer of a bill of exchange, was a man or
business. B, the acceptor, was a young and ignorant person, completely under
A's influence:
As
to illustration (d) - It is proved that a river ran in a certain course five
years ago, but it is known that there have been floods since that time which
might change its course:
As
to illustration (e) - A judicial act, the regularity of which is in question,
was performed under exceptional circumstances:
As
to illustration (f) - The question is, whether a letter was received. It is
shown to have been posted, but the usual course of the post was interrupted
disturbances:
As
to illustration (g) - A man refuses to produce a document which would bear on a
contract of small importance on which he is sued, but which might also injure
the feelings and reputation of his family:
As
to illustration (h) - A man refuses to answer a question which he is not
compelled by law to answer, but the answer to it might cause loss to him in
matters unconnected with the matter in relation to which it is asked:
As
to illustration (i) - A bond is in possession of the obligor, but the
circumstances of the case are such that he may have stolen it.
[114A.
Presumption as to absence of consent in certain prosecutions for rape:
In a
prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d)
or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian
Penal Code (45 of 1860) where sexual intercourse by the accused is proved and
the question is whether it was without the consent of the woman alleged to have
been raped and she states in her evidence before the Court that she did not
consent, the Court shall presume that she did not consent.][x]
04. Evolution of the idea ‘Burden of Proof’
As stated earlier, the expression “burden of proof" has two meanings in reference to judicial proceedings[xi]. One
of them is “the burden of proof as a matter of law and pleading the burden, as
it has been called, of establishing a case, whether by preponderance of
evidence, or beyond a reasonable doubt[xii]." The other is "the burden of proof in the sense of
introducing evidence[xiii].” Burden
of proof" means (a) the burden of
establishing a case and (b) the duty or
necessity of introducing evidence[xiv]. It
is also called pleading the burden of establishing a case, whether by
preponderance of evidence, or beyond a reasonable doubt[xv]. The
other is the burden of proof in the sense of introducing evidence[xvi]. Thus Burden of proof means (a) the burden of establishing a case and (b) the duty or necessity of introducing evidence[xvii].
The burden of proof is a metaphorical phrase indicating an obligation to
prove a fact or facts. This obligation necessarily involves the adduction of
evidence in an attempt to prove a fact, subject to occasional cases when a fact
can be established without evidence. Thus the primary meaning of the burden of
proof is an obligation to adduce evidence of a fact.
This obligation is not enforced by any direct sanction. The penalty for
failure to fulfill the duty, or to discharge the burden, is the risk of failure
in the whole or a part of the litigation.
Thayer maintained that "burden of proof" is used in two senses,
and that there was only one phrase for two ideas. One idea was the duty of him
who will lose the case if he does not make out a proposition, and the other was
the duty of going forward in argument or in producing evidence[xviii].
It will be observed that argument is not proof, and that the first duty
involved the second, for "he" could not normally make out a
proposition of fact without producing evidence, even though occasionally some
relevant evidence might be supplied by the opposite side or a fact might be
established by other means. Wigmore wrote of two meanings of the burden of
proof but he treated the two meanings as involving two separate burdens.
Elaborating Thayers thesis, he applied it to two specific stages in a trial.
One burden was that of convincing the jury at the end of the trial, and the
other was that of making out a prima facie case[xix].
Phipson wrote of a burden of proof on the pleadings, which corresponded to
Wigmore's first burden, and the burden of adducing evidence[xx]
which was not limited to making out a prima facie case and more nearly corresponded
to Thayer's than Wigmore's second burden. Despite the, fact that both
Phipson"s burdens involved the adduction of evidence, this was a
convenient method of indicating two applications of the primary, meaning of the
burden of proof, and the recognition of two burdens became a conventional usage
in England[xxi].
The primary meaning of burden of proof in subject-matter, includes the
proof of issues and of individual relation to its subject- facts relevant to or
within an issue[xxii];
or in relation to its matter- effect on the case of the party bearing the
burden, including the right to begin[xxiii],
making out a prima facie case, and succeeding at the end of the trial;
or in relation to the effect of the discharge of the burden on the opponent, as
when a presumption or prima facie case shifts a burden[xxiv]. Thus
the conventional view is not unassailable. For there is either a single burden
in the primary meaning of the term; or, if a classification of types is
attempted, at least two burdens[xxv].
A third burden on the plaintiff has now been discovered in America[xxvi].
If the conventional view that there are two burdens is accepted, the first
burden may be described as the burden of proof of the issues. The second burden
is to adduce evidence of other confusing facts. In some cases such evidence
must be adequate to prove the fact which is the subject of the second burden,
as when a condition precedent to the admissibility of evidence has to be
established. In other cases the fact need not be established or proved. Such as
to the adequacy cases principally occur in modern criminal law. There may be an
obligation on the accused not to establish a fact, but merely to provide some
evidence of a defence, which the prosecution must negative to obtain a
conviction, or some evidence on which a jury may act, if the accused is to be
acquitted. It is for this reason apparently that it is sometimes said that
there is no burden of proof in such cases[xxvii];
but this view gives the word "proof" a very limited meaning.
Lord Denning propounded a new classification which substitutes "legal
burden" for the burden of proof of an issue, and uses "ultimate
burden" for the burden of the aggregate of the burdens on several issues[xxviii]. Mr. Bridge prefers the "fixed burden[xxix]"
The ultimate burden, or if there is only one issue the legal burden, seems to
correspond to the obligation to convince the Tribunal at the end of the case.
This obligation was called by Wigmore the risk on non-persuasion or the risk of
jury doubt,[xxx]
and the draft Uniform Rules describe it either as the burden of proof or as the
burden of persuasion.[xxxi]
Dr. Glanville Williams has appropriated the words "burden of proof"
to the proof of issues, which he asserts to be the "burden of proof proper[xxxii]"
and he has further termed it the "persuasive burden[xxxiii]."
In Indian context, what is called the burden of proof on the pleadings
should not be confused with the burden of adducing evidence which is described
as "shifting." The burden of proof of the pleadings never shifts, it
always remains constant[xxxiv].
This latter obligation seems to include proof of any fact which is not in
issue. It has been described as the particular burden of proof, or the
"tactical burden.[xxxv] ” Dr.
Williams calls it "evidential burden[xxxvi]."
Whatever the "evidential burden" may connote, the phrase
"evidential burden" if not tautologous, is misleading, as the
so-called persuasive burden is equally evidential.
The term "burden of proof" fails to convey a precise idea and is
often used interchangeably in two entirely distinct senses.[xxxvii] The distinction
between these two senses in which the phrase is used has been clearly explained
in Bhola v. Bhagwant Rao.[xxxviii]
In its primary sense the expression means the duty of establishing a case. This
of course is a question of law. Misplacing the onus in this sense is therefore
also a question of law and may justify interference in second appeal.[xxxix]
Where both the parties have led evidence in support of their respective
contentions, the question of "burden of proof" or onus loses its
importance. The plaintiff's must stand or fall upon the evidence adduced by
him.[xl]
It is well-settled law that when each of the parties adduces evidence in
the case, the question of burden of proof loses all importance. Even in a case
where the burden of proof initially lies with the plaintiff and he fails to
discharge that burden by his evidence, but all the same, the defendant in his
evidence admits the material fact or the evidence led by him tend to prove
plaintiff's case, there is no bar for any decree on the basis of such admission
or evidence. It has also got to be borne in mind that in civil cases, unlike
criminal case, it cannot be said that the benefit of reasonable doubt must
necessarily go to the defendant. A preponderance of probabilities may be the
basis of decree[xli].
The plaintiff cannot obviously take advantage himself by the weakness of
evidence.
When the entire evidence on both sides is once before the Court the debate
as to onus is purely academical. On this point their Lordships of the Privy
Council in Sri Chidambara Shivaprakas Pandara Sannadhigal v. Veerama
Reddi[xlii]
expressed themselves in complete agreement with the observations of the
Privy Council in Seturatnam Aiyar v. Venkatachala Gounden[xliii].
Where the findings arrived at by the Court are based on evidence both oral
and documentary the consideration of the question of onus will be only
academic.[xliv]
Once the defendants admitted that money was paid before the Sub-Registrar,
the onus of proving that-it was returned to the creditor was upon the person who
asserted it.[xlv]
According to the settled proposition of law it is for the plaintiff and the
plaintiff only to prove the fact of non-availability of non-residential
alternative premises in the town and not the defendant.[xlvi]
The onus of establishing that no consideration passed is on the defendant.[xlvii]
The burden of proving that the lease was for manufacturing purposes must
for the purpose of Sec. 106 of the Transfer of Property Act, lie on the party
who claims it to be so. The burden is to establish that the exclusive or at
least the dominant purpose of the lease was the manufacturing purpose.[xlviii]
In a criminal case, the onus lies on the prosecution to establish its case
beyond reasonable doubt and the case of the prosecution cannot be said to be
established merely because the defence is found to be weak or false. The
accused must be presumed to be innocent unless he is proved to be guilty and
the onus on the prosecution never shifts. The mode of proof by standard of
benefit of doubt is not applicable to the accused where he is called to prove
his case or to prove the exception of the Indian Penal Code, which he seeks to
rely. It is sufficient for the defence to give a version which competes in
probability with the prosecution version for that would be sufficient to throw
suspicion on the prosecution case entailing its rejection by the Court.[xlix]
The law is that when there is an admission by a party the burden of proof
shifts and it is for the party making the admission to explain it away.[l]
Where a guardian of a minor makes an admission about the existence of legal
necessity in respect of a certain sale the burden of proof shifts on the minor
to prove that the sale was not executed for legal necessity.[li]
As used in its primary sense the question of onus is one of law only. In
some cases the question of onus is the sole determining factor. The position of
onus has been explained at some length by Privy Council in Robins v. National
Trust Co.[lii]
In a criminal trial involving a serious offence of a brutal nature, the
Court should be wary of the fact that it is human instinct to reach adversely
to the commission of the offence and make an effort to see that such in
instinctive reaction does not prejudice the accused in any way. In a case where
the offence alleged to have been committed is a serious one, the persecution
must provide greater assurance to the Court that its case has been proved
beyond reasonable doubt.[liii]
05. Indian Penal Code, 1860
Indian Penal Code, 1860 is a substantive criminal law defining offences and
prescribing punishments for them.
The draft of the Indian Penal Code was prepared by the First
Law Commission, chaired by Thomas Babington Macaulay in 1835 and was submitted
to Governor-General of India Council in 1837. Its basis is the law of England
freed from superfluities, technicalities and local peculiarities. Elements were
also derived from the Napoleonic Code and from Edward Livingston's Louisiana
Civil Code of 1825.
The first final draft of the Indian Penal Code was submitted to the
Governor-General of India in Council in 1837, but the draft was again revised.
The drafting was completed in 1850 and the Code was presented to the
Legislative Council in 1856, but it did not take its place on the statute book
of British India until a generation later, following the Indian Rebellion of 1857. The draft then underwent a very careful revision at the
hands of Barnes Peacock, who later became the first Chief
Justice of the Calcutta
High Court, and the
future Puisne Judges of the Calcutta High Court, who were
members of the Legislative Council, and was passed into law on 6 October 1860.
The Code came into operation on 1 January 1862. Unfortunately, Macaulay did not
survive to see his masterpiece come into force, having died near the end of
1859.[liv]
However,
Indian Penal Code did not apply automatically in the Princely states, which had their own courts and legal
systems until the 1940s. The Code has since been amended several times and is
now supplemented by other criminal provisions. Based on IPC, Jammu and Kashmir has enacted a separate code known as Ranbir Penal Code (RPC).
After the partition of
the British Indian Empire, the Indian
Penal Code was inherited by its successor states, the Dominion of India and the Dominion of
Pakistan, where it continues
independently as the Pakistan
Penal Code. After the
independence of Bangladesh from Pakistan, the code continued in force
there. The Code was also adopted by the British colonial authorities in Colonial Burma, Ceylon (modern Sri Lanka), the Straits
Settlements (now part
of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes in those countries.
The Ranbir Penal Code applicable in Jammu and Kashmir is also based on this
Code.[lv]
Indian Penal Code running from Section 1 to 511 has undergone
76 amendments so far in India. There are 26 chapters in Indian Penal Code
including Chapters VA, IXA and XXA. Chapter IV of Indian Penal Code deals with
the General Exceptions arranged under Sections 76 to 106 of the Code.
06. General Exceptions under Indian Penal Code, 1860
Being a comprehensive substantive criminal law, Indian Penal
Code has to address various exceptions that may be applicable in various
situations during the enforcement of the Code. The nature of the exceptions is
that even if an act or omission described as an offence under Indian Penal Code
has been committed by a person, he may be exonerated if such person comes under
such exceptions. Thus, generally the burden of the proof as to the commission
or omission of the offence goes to the prosecution whereas the burden of proof
as to claim the exceptions goes to the accused. Out of the Sections 76 to 106
of the Code Sections 96 to 106 of the Code are given under the subhead ‘Of the Right of Private Defence.’ However that subhead is not included in this study.
07. Burden of Proof in General Exceptions under IPC
As the very purpose of this study is to identify the burden
of proof in each situation as provided in Chapter IV of the Indian Penal Code,
it is better to deal with each section of the Code and apply the provisions
with respect to burden of proof therein.
76. Act
done by a person bound, or by mistake of fact believing himself bound, by
law.-- Nothing is an offence which is done by a person who is, or who by reason of
a mistake of fact and not by reason of a mistake of law in good faith believes
himself to be, bound by law to do it.
Illustrations
(a) A, a soldier, fires on a mob by the order of his superior officer, in
conformity with the commands of the law.
A has committed no offence.
(b) A, an officer of a Court of Justice, being ordered by that Court to
arrest Y, and after due enquiry, believing Z to be Y, arrests Z. A has
committed no offence.
Applying the principles of Burden of Proof here, it may be seen that
Section 105 of the Indian Evidence Act, 1872 is applicable here. It runs, “ 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, 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.”
Thus
it is the duty of the accused pleading the exception of reason of mistake of
fact to prove,
1.
The law which he thought upon which he was bound
to do the thing,
2.
The fact that he has acted in good faith,
3.
He has taken due care, and
4.
Whatever he has done is by reason of a mistake
The illustrations
under Section 105 of the Indian Evidence Act, 1872 also make it clear that the
burden of proof in this regard in on the accused.
However Supreme Court has found that it is very doubtful whether so
sweeping a rule as is contained in Sec. 105, will be found to work well in all cases.[lvi] The
section is an important qualification of the general rule that, in criminal
trials, the onus of proving everything essential to the establishment of the
charge against the accused lies on the prosecution.[lvii]
Honourable Supreme Court (three-Judge Bench) in the matter of Vijayee
Singh v. State of U.P.[lviii],
has taken survey of earlier judgments and it has been held in para 33 that
the general burden of establishing the guilt of accused is always on the
prosecution and it never shifts. Even in respect of cases covered by Section
105 the prosecution is not absolved of its duty of discharging the burden. The
accused may raise a plea of exception either by pleading the same specifically
or by relying on the probabilities and the circumstances obtaining in the case.
He may adduce evidence in support of his plea directly or rely on the
prosecution case itself or, he can indirectly introduce such circumstance by
way of cross-examination and also rely on the probabilities and the other
circumstances. The initial presumption against the accused regarding the
nonexistence of the circumstances in favour of his plea, gets displaced and on examination of the material even a reasonable doubt arises the benefit of
it should go to the accused. The accused can also discharge the burden under
Section 105 by preponderance of probabilities in favour of his plea, In case of
general exceptions, special exceptions, proviso contained in the Penal Code or
in any law defining the offence, the Court, after due consideration of the
evidence, in the light of the above principle, if satisfied, would state in the
first instance as to the exceptions the accused is entitled, then see whether
he would be entitled for complete acquittal of the offence charged or would be
liable for a lesser offence and convict him accordingly.[lix]
On the ground that the law always presumes, innocence in the absence of
convincing evidence to the contrary, in criminal cases the burden of proof,
unless shifted by legislative interference, always falls on the prosecuting
party, and this through, in order to convict, he must necessarily have recourse
to negative evidence.[lx]
Generally in criminal cases (unless otherwise directed by statute), the
presumption of innocence casts on the prosecutor the burden of proving every ingredient of the offence, even though negative averments be involved
therein[lxi].
Prosecution
is bound to negative any exception favourable to the
defendant which is engrafted in the statutory description of the offence.[lxii] Prosecution
must prove the guilt of the accused and he is under no obligation to prove his innocence.
It is sufficient for him to raise a reasonable doubt as
to his guilt.[lxiii]
When a person is accused of an offence the burden of proving the circumstances
bringing the case within any of the general exceptions in the Penal Code is on the accused, and it is directed by the statute that the Court shall presume the absence of such circumstances.[lxiv]
When an accused takes the plea of the general exceptions under the Penal Code,
the burden is upon him to establish that plea, although he is not required to establish it beyond reasonable doubt.[lxv]
When an accused person sets up a general exception in his defence and pleads
that the acts alleged to have been committed by him, do not constitute an
offence, the burden of establishing the general exception lies on him.[lxvi]
Section 105 is stated in two forms, that of a rule as to the
burden of proof, and that of a presumption.[lxvii]
Formerly, it was the duty of the prosecutor to negative the existence of
special exceptions.[lxviii]
If the accused sets up, as a defence, any of the exceptions contained in the
Penal Code, the burden of proving that exception is on him, but this does not
remove any part of the burden of proof from the prosecutor.
Each party bears his own burden.[lxix]
The fact that an accused person was found with a gun in his hand, immediately after a gun was fired, and a man was killed on the spot from
which the gun was fired, may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving
innocence lies upon the accused under such circumstances.[lxx]
It is trite that the onus which rests on an accused person under See. 105,
Evidence Act, to establish his plea of private defence is not as onerous as the
unshifting burden which lies on the prosecution to establish every ingredient
of the offence with which the accused is charged beyond reasonable doubt. It is
further well established that a person faced with imminent peril of life and
limb of himself or another, is not expected to weigh in "golden
scales" the precise force needed to repel the danger. Even if he at the
heat of the moment carries his defence a little further then what would be
necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.[lxxi]
The net effect of Sec. 105 of the Evidence Act would be that the Court must
start by assuming that no facts exist which could be taken into consideration
for considering the plea of self-defence as an exception to the criminal liability
which would otherwise be there. No doubt, it is true, the burden resulting from
the obligatory presumption is not difficult to discharge. The accused even if
he fails to discharge his duty, fully, by establishing the existence of an
exception may yet get the benefit of the exception indirectly when the
prosecution fails in its duty to eliminate genuine doubt about his guilt
introduced by the accused.[lxxii]
The law in India places the burden of proof upon the prosecution to bring
the guilt home to the accused and does not admit of tiny exception. The
presumption of innocence has to be dislodged by the prosecution by leading
evidence pointing to the guilt of the accused. Under Sec. 105 of the Indian
Evidence Act the burden of proving the existence of circumstances bring the
case within any of the general or special exceptions is placed on the accused.
Despite what is stated in Sec. 105, Indian Evidence Act, as to the accused
bearing the burden of bringing the case within the statutory exception, the prosecution
is not absolved from the burden laid on it by Sec. 102.[lxxiii]
Coming to the
illustrations under Section 76 of IPC, in case (a) the burden of proof is with the
prosecution to prove beyond all reasonable doubt that the soldier has committed
the crime. It is the burden of proof of
the soldier to prove the following,
1.
There was an order of the superior officer
to fire the mob
2.
He has acted in good faith
3.
He has only executed the order of the
superior officer
Coming to the illustration (b) under Section 76 of IPC, the burden of proof
is with the prosecution to prove beyond all reasonable doubt that the soldier
has committed the crime. It is the
burden of the soldier to prove the following,
1.
There was a Court order to arrest Y
2.
A has made due enquiry on Y
3.
There was reason for A to think that Z was
Y
4.
A has acted in good faith
5.
The arrest of Z by A was only a mistake
6.
A has only executed the order of the Court,
even though a mistake has been committed by him.
77. Act of
Judge when acting judicially.--Nothing is an offence which is done by a
Judge when acting judicially in the exercise of any power which is, or which in
good faith he believes to be, given to him by law.
Here the Judge is immune from the consequences of the actions done by him
in good faith in the discharge of his duties as a Judge. Such actions are irrebuttable
as far as proved otherwise. Section 114 (e) of the Indian Evidence Act is
applicable here. According to that provision there is a presumption that
judicial and official acts have been regularly performed. Thus the Judge has no
burden of proof on his shoulder. However under Section 114 itself, there is
provision enabling the Court, having regard to such facts as under illustration
(e), to consider whether ‘a judicial act, the regularity of which is in
question, was performed under exceptional circumstances.’ In such a case an
aggrieved party may approach a competent Court challenging the action of the
Judge and the burden of proof shall solely vest on the person who approaches
such Court, against the actions of the Judge.
78. Act
done pursuant to the judgment or order of Court.— Nothing which is done in pursuance of, or which is warranted by the
judgment or order of, a Court of Justice, if done whilst such judgment or order
remains in force, is an offence, notwithstanding the Court may have had no
jurisdiction to pass such judgment or order, provided the person doing the act
in good faith believes that the Court had such jurisdiction.
The burden of proof under this section is very much
similar to that in Section 77 of the IPC. The nature of this exception is
irrebuttable, except under circumstances wherein a Court can hold otherwise. An
aggrieved party may approach a competent Court challenging the action of the
Judge and the burden of proof shall solely vest on the person who approaches
such Court, against the actions of the Judge or any other officer acting under
his judgment or order.
79. Act
done by a person justified, or by mistake of fact believing himself, justified,
by law.--Nothing is an offence which is done by any person who is justified by law,
or who by reason of a mistake of fact and not by reason of a mistake of law in
good faith, believes himself to be justified by law, in doing it.
Illustration
A sees Z commit what appears to A to be a murder. A, in the exercise, to
the best of his judgment exerted in good faith, of the power which the law
gives to all persons of apprehending murderers in the fact, seizes Z, in order
to bring Z before the proper authorities. A has committed no offence, though it
may turn out that Z was acting in self-defence.
Sections 105 and 101
of the Indian Evidence Act are attracted in this case. Even while the
prosecution has the burden of proof to prove the offence committed by the
accused, the accused may claim the benefit of exemption under Section 79 of
IPC, but the burden of proof to prove that there was a mistake of fact, and
that the act would have been justified by law but for the mistake and good
faith in such action, and the belief of the accused that he shall be justified
in doing so rests on the accused.
In the case of the
illustration given above, the chance of proving innocence of A is twofold,
firstly by proving that Z was not acting in self-defence, and or or, secondly
by proving that the act of bringing Z before the proper authorities was in good
faith and that the self-defence by Z was mistaken by A as murder.
80.
Accident in doing a lawful act.--Nothing is an offence which is done by
accident or misfortune, and without any criminal intention or knowledge in the
doing of a lawful act in a lawful manner by lawful means and with proper care
and caution.
Illustration
A is at work with a hatchet; the head flies off and kills a man who is
standing by. Here, if there was no want of proper caution on the part of A, his
act is excusable and not an offence.
Section 105 of the
Indian Evidence Act is applicable here.
The Supreme Court in K.M. Nanavati v. State of Maharashtra[lxxiv] had to consider the question of burden of
proof in the context of a defence based on the exception embodied in Sec. 80 of
the Indian Penal Code. In that context law is summarized thus[lxxv]-
"There may arise three different situations : (I) A statute may throw
the burden of proof of all or some of the ingredients of an offence on the
accused (see Sees. 4 and 5 of the Prevention of Corruption Act). (2) The
special burden may not touch the ingredients of the offence, but only the
protection given on the assumption of the proof of the said ingredients (see
Secs. 77,78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to
an exception, some of the many circumstances required to attract the exception,
if proved, affecting the proof of all or some of the ingredients of the offence
(see Sec. 80 of the Indian Penal Code)…..
"In the third case, though the burden lies on the accused to bring his
case within the exception, the facts proved may not discharge the said burden,
but may affect the proof of the ingredients of the offence."
After giving an illustration, the Supreme Court proceeded to state:
"That evidence may not be sufficient to prove all the ingredients of
Sec. 80 of the Indian Penal Code, but may prove that the shooting was by
accident or inadvertence, i.e., it was done without any intention or
requisite state of mind, which is the essence of the offence within the meaning
of Sec. 300, LP.C., or at any rate may throw a reasonable doubt on the
essential ingredients of the offence of murder…..
"In this view it might be said that the general burden to prove the
ingredients of the offence, unless there is a specific statute to the contrary,
is always on the prosecution, but the burden to prove the circumstances coming
under the exceptions lies upon the accused."
An accused person
claiming exception under this Section 80 of IPC, thus has a burden to prove the
following,
1.
Whatever act done by the accused was in a
lawful manner and by lawful means
2.
The accused had
taken proper care and caution in the act and that there was no negligence
3.
The accused had
no criminal intention in the act
4.
The alleged
offence was only by accident or misfortune
However, in criminal cases the major burden one of satisfying the jury of his guilt
beyond a reasonable doubt is always upon the prosecution[lxxvi].
While considering the illustration also, all the above said burden of proof is with the accused.
81. Act
likely to cause harm, but done without criminal intent, and to prevent other
harm.-- Nothing is an offence merely by reason of its being done with the knowledge
that it is likely to cause harm, if it be done without any criminal intention
to cause harm, and in good faith for the purpose of preventing or avoiding
other harm to person or property.
Explanation.-It is a question of fact in such a case whether the harm to be
prevented or avoided was of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge that it was likely to cause
harm.
Illustrations
(a) A, the captain of a steam vessel, suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can
stop his vessel, he must inevitably run down a boat B, with twenty or thirty
passengers on board, unless he changes the course of his vessel, and that, by
changing his course, he must incur risk of running down a boat C with only two
passengers on board, which he may possibly clear. Here, if A alters his course
without any intention to run down the boat C and in good faith for the purpose
of avoiding the danger to the passengers in the boat B, he is not guilty of an
offence, though he may run down the boat C by doing an which he knew was likely
to cause that effect, if it be found as a matter of fact that the danger which
he intended to avoid was such as to excuse him in incurring the risk of running
down C.
(b) A, in a great fire, pulls down houses in order to prevent the
conflagration from spreading. He does this with the intention in good faith of
saving human life or property. Here, if it be found that the harm to be prevented
was of such a nature and so imminent as to excuse A's act, A is not guilty of
the offence.
Section 105 of the
Indian Evidence Act, 1862 is applicable here. Thus, if the accused claims
exemption it is his burden to prove the following ingredients of Section 81 of
Indian Penal Code, 1860.
1.
There was
knowledge to the accused that there may be chances of two kinds of harms
2.
The act of the
accused was to avoid greater harm
3.
There was no
criminal intention in the acts of the accused
4.
The accused has
acted in good faith
5.
The accused could
prevent or avoid other harm to person or property
6.
The harm prevented or avoided was of such a
nature and so imminent as to justify or excuse the risk of doing the alleged
act of offence
In the case of
illustration (a), A has the burden to prove the following facts.
1. A knows that
there are two possible harms before him,
1.
running down boat
B with twenty of thirty passengers
2.
running down boat
C with two passengers
2. The act of A was
to avoid greater harm
3. There was no criminal
intention in the acts of A
4. A has acted in
good faith
5. A could prevent or avoid other harm to person or property of the people in Boat B
6. The harm prevented or avoided to people
in Boat B was of such a nature and so imminent as to justify or excuse the risk
of running down Boat C
In the case of
illustration (b), A has the burden to prove the following facts.
1.
The harm to be
prevented from fire was of such a dangerous nature and so imminent
2.
Human life and
property were in danger
3.
Pulling down
houses would prevent the conflagration from spreading
4.
A has acted in good faith
5.
By the action of A, human life and property could be saved
82. Act of
a child under seven years of age.-- Nothing is an offence which is done by a
child under seven years of age.
This section comes
under Section 105 of the Indian Evidence Act, 1872. The legal presumption of
“doli incapex” also is applicable here. Hence this is irrebuttable too. The
only burden on the accused is to prove that he is under seven years of age.
In Santosh Roy v.
State Of West Bengal[lxxvii],
Supreme Court has held that “Section
82 provides that nothing is an
offence which is done by a child under 7 years of age. An infant under that age
is, by presumption of law, doli incapax.”
[i]
Sarvavijnanakosam, Vol , Page , State Institute of Encyclopaedic Publications,
Tvm
[ii] Introduction
to feminist Jurisprudence, by Hilaire Barnette, 1998, Cavendish Publishing
Ltd., London, Page 39
[iii] https://en.wikipedia.org/wiki/Legal_burden_of_proof
[iv] Substituted
for the word "When" by the Indian Evidence (Amendment) Act, 1872
[v] Substituted for the
word "on" by the Indian Evidence (Amendment) Act, 1872
[vi] Inserted by the
Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) w.e.f
14.7.1984
[vii] Inserted by the
A.O.1937, Part III of the Govt. of India Act, 1935, w.e.f 1st April, 1937
[viii]
Inserted by the Criminal Law (Second Amendment) Act, 1983 (46 of 1983)
[ix] Inserted by the Dowry
Prohibition (Amendment) Act, 1986 (43 of 1986)
[x] Section 114A inserted
by the Criminal Law (Amendment) Act, 1983 (43 of 1983)
[xi] Phipson’s
Evidence, fourth edition, page 22
[xii] Phipson’s
Evidence, 1905 edition, page 22
[xiii]
Phipson’s
Evidence, fourth edition, page 22 and Best on Evidence, Sec 265n
[xiv] 13 CPLR 159
at Page 161
[xv] Phipson’s
Evidence, 1905 edition, page 22
[xvi] Phipson’s
Evidence, fourth edition, page 22 and Best on Evidence, Sec 265n
[xvii]
13
CPLR 159 at Page 161
[xviii]
Thayer’s
Treatise, 355; Cases 69, 71
[xix] Wigmore’s
Treatise,IX, 270-286, Code 491
[xx] Phipson’s
Evidence, sixth edition,1921 page 30,31
[xxi] C.D.Field’s
Commentary on Law on Burden of Proof, Page 3
[xxiv]
See
Best, 251; Phipson, 34 ; Stone, "Burden of Proof and the judicia!
Process", (1944) 60 LQR 262
[xxv] See
further, Nokes,"Codification of the Law of Evidence in Common Law
Jurisdictions", (1956)5 ICLQ 347at Pages 359-360
[xxvi]
See
Morgen, Maguire and Weinstein, "Cases and Materials on Evidence, (4th
Ed.,1957)Pages 419-422
[xxvii]
R. v.
Johnson, (1961)1 WLR 1478,CCA., with reference to an alibi; see also
William's Criminal Law (2nd Ed., 1961) 898 Compare McCann v. H.M.A, 1961
SLT 73, as to Scottish Law
[xxviii]
Above
Page 75, Denning, op.cit, see also Brown v. Rolls Royce Ltd., (1960) 1 WLR 210
at Page 215, H.L. Bratty v. Att. Gen for NI (1961) 3 WLR 965 at Pages 981-982,
H.I. “Legal Burden” had previously been used in Stone op.cit
[xxix]
Bridge,
"Presumptions and Burdens", (1949)12M.L.R.273
[xxx] Wigmore’s
Treatise, IX, 270, Code 491
[xxxi]
Uniform
Rules of Evidence, (1953) r. 1(4) adopting "Burden of
Persuasion" from the Model Code of Evidence, (1942)r.1
[xxxiv]
Surajbhan Kailash Chand, Messrs v. Hari Shanker
Vishist,A.I.R.1976Delhi 70 at p. 73
[xxxvi]
Williams,
op. cit. The term had previously been used in Bridge, op. cit.
277,279,283,285,289
[xxxviii]
(1900)
18 CPLR 159
[xl] Ramadhin
Singh v. Sitaram Singh, A.I.R. 1957 Pat. 64 at p. 66
[xli]
Jogendra Prasad Singh v. Jay Kanta Roy, AIR 1971
Assam 168 at p. 170
[xlii]
AIR
1922 PC 292 at Page 302
[xliii]
ILR
43 Mad 567
[xliv]
Sardar
Mohan Singh Bedi v. Manu Maya Thappa AIR 1972 Pat 272 at Page 274
[xlv] Muthachi
alias Nambiappan Muthiriyan v. Kandaswami Muthiriyan AIR 1945 Mad 135 at Page
136
[xlvi]
Jenrail
Singh v. Kantaiyalal, AIR 1986 MP 53 at p. 56
[xlvii]
Sushil
Kumar Maity v. Sandhyarani Maity, AIR 1986 Cal 27 at p. 29
[xlviii]
P.N.
Venkatesa Chettiar v. Annamalai Industrial Corporation, 1985 (1) RLR 107
at pp. 111, 112 (Mad)
[xlix]
Rajib
Lochan Beheri'v. State of Orissa, 1983 (1) Crimes 349 at p. 352
(Orissa); see also Rabindra Kumar Dey v. State of Orissa, AIR.
1977 SC 170
[l] See Ranichandra
Kunwar v. Narpet Singh, ILR 29 All 184 : 34 IA 27: 4 ALJ 102 (PC)
; Dukharam Nath Zutshi v. Messrs. Commercial Credit Corporation Ltd.,
AIR 1940 Oudh 35 at Page 40
[li] Dost
Muhammed v. Sher Mohammed AIR 1935 Lah 489 at pp 490-491
[lii] (1927) AC 515
[liv] https://en.wikipedia.org/wiki/Indian_Penal_Code
[lv]
Ibid
[lvi] In the matter of Shibo
Prosed Pandah, 3 Cal L.R. 122 at Page 126 : 4 Cal 124 per X Markley, J.
[lvii]
UBR (1906),Excise,7
at p. 8
[lix]
State of Maharashtra v. Govind Mhatarba Sinde,
2010 Cr. LJ 3586 at p. 3590 (Bom)
[lx] C.D.Field’s
Commentary on Law on Burden of Proof, Page 418
[lxi] Over v. Harwood,
(1900) 1 QB 803; R. v. Bourne,
(1939) 1 KB 687; R. v. Lobell,
(1957)1 QB 547
[lxii]
Robers
v. Humphreys. LR 8, QB 483; R. v. James, (1902) 1 KB 540; R. v.
Audley, (1907) 1 KB 383
[lxiii]
Woolmington v. Director of Public Prosecutions,
(1935) AC462 at pp. 481-482
[lxiv]
Queen-Empress
v. Prag Dat, 20 All 439 at p. 463: (1898)18 AWN 117, referred to in
Queen Empress. v. Timmal, 21 All 122 at p. 124: (1898)18 AWN 208
[lxv] Tobu Chetia
v. State of Assam, 1976 Cr. LJ 1416 at p. 1418
[lxvi]
(1905)
AWN 2
[lxvii]
Markby,
Evidence, p.81
[lxviii]
Markby,
Evidence, p.81, see as to the old law, in the matter of Shibo
Prosad Pandah. 3 Cal LR 122: 4 Cal 124 and Sealy v. Ramnarain Bose, WR
(Cr.) 22
[lxix]
Markby,
Evidence, p.79
[lxx] Nibaran
Chandra Roy v. Emperor, 11 CWN 1085 : 6 Cr. LJ 304
[lxxiii]
Balbir
Singh Balwant Singh v. State, AlR 1959 Punj 332 at pp. 338-339: 61 Punj.
LR 632 : 1959 Cr. LJ 901: 1959 A. Cr. R. 356 : 1959 AWR (Sup)90. See also
Ashokan v. State of Kerala, 1982 Cr. LJ 173 (Ker)
[lxxiv]
(1962) Supp. 1
SCR 567 : AIR 1962 SC 605
[lxxv]
C.D.Field’s Commentary on Law on Burden of Proof, Page 457
[lxxvi]
Manchini
v. D.P.P., (1942)AC 1 ; Woolmington v. D.P.P. (1935) AC 462; Chan Kau v.
R., (1955)1 All ER 266; R. v. Lovell, (1957) QB 547; Mckenzie v. H.M.
Advocate, (1960) Cr. LR 273; R. v. Bentley, (1960) Cr. LR 777 (CCA) and see
post, Sec. 102
[lxxvii]
1992 Cri LJ 2493
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