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Burden of Proof in Criminal Cases and the Supreme Court— New Trends
by Dr K.N. Chandrasekharan Pillai*

Cite as : (2003) 8 SCC (Jour) 49

India is rightly categorized as a common law country which has adopted the adversarial system of trials. In criminal cases, both the prosecution and the defence are represented by legally qualified persons. It is for them to command to their aid all the information in favour of the respective parties before another legally qualified person, the trial Judge, who is the pivot of the criminal justice system.

Under both the adversarial system and the inquisitorial system of trial it is the trial Judge who has been given enormous powers to conduct the trials properly. The Public Prosecutor under the adversarial system is statutorily authorized to represent the prosecution while the defence counsel is authorized to do so on being permitted by the Judge.1 Also, the defence counsel may be allowed to put only such questions to the witnesses as may be permitted by the trial Judge. This is also the position under the inquisitional system.2 And it is generally asserted by both the systems that there is presumption of innocence and the burden of proof is on the person who asserts the statement. Under the adversarial system it is usually the prosecutor who makes the accusation and as such it is for him to discharge the burden of proving the accusation beyond reasonable doubt. The defence is also required to prove the facts if it has asserted them. Thus, both the systems have common features and rules of procedure. However, it is often argued that under the adversarial system the burden of the prosecution is very heavy and this indirectly helps the defendant. The practice followed by the functionaries in the adversarial system makes the presumption of innocence really strong.

Though there does not appear to be much difference between the two systems of trial, it is generally asserted that it is under the inquisitional system of trial that maximum percentage of conviction is registered when compared to the result in adversarial system. The reason for this seems to be the difference in approach the practitioners adopt towards the principles.

In English law it was generally believed that the burden on the prosecution to prove its case beyond reasonable doubt was sacrosanct, that even if the burden is shifted to the defendant what is expected to be proved was to establish a case on balance of probabilities3 and the trial starts with the presumption that the accused is innocent whereas under the inquisitional system this presumption gets weakened because of the dossier prepared by the investigating judicial officer.4 Since the organized power of the State has been at the command of the prosecution, it was generally the impression that if there is any doubt on the veracity of the prosecution case the benefit of doubt should go to the defendant who is the weaker between the two.

The courts in the common law countries have been insistent in following those principles and this attitude has created an impression that many culprits escape the clutches of law. The system responded to this impression differently. Some jurisdictions excluded the mens rea component of crimes; some shifted the burden from the prosecution to the defendant. And still there has been a general feeling among the courts that the system has been unduly adhering to the above principles to the detriment of the society. This has not been a permanent trend, however, some judges, Appellate Judges in particular — who are overconscious about the security of society develop this trend and after their retirement the system gets back to its original position. Then after sometime again the trend sets in. This shows the vitality of the common law system. It is proposed to examine this phenomenon as signified in some decisions to point out that it is perhaps not a permanent feature and that it serves the purpose of administering caution periodically so that the system may maintain its balance. If this trend is not arrested the system may develop chinks that can have devastating impact on the credibility of the system. It is, therefore, necessary that we undertake such a study periodically to help monitor the trend.

It was in Shivaji Sahabrao Bobade v. State of Maharashtra5 that Justice K. Iyer warned about our undue adherence to the fundamental principles. He said:

“The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.”6

Justice Krishna Iyer was so perturbed by the strict adherence of our trial Judges to the principle that he went to the extent of advising them thus:

“We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or has embroidered the story to give a credible look to their case that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused.”7

Justice Khanna who was a party to this decision was quick to clarify the position in the subsequent decision in Kali Ram v. State of H.P.8 This was also a three-Judge Bench consisting of H.R. Khanna, Alagiri Swami and R.S. Sarkaria, JJ. The observations of Justice Iyer sent out a wrong message and Khanna clarified thus:

23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade v. State of Maharashtra5 to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles, which has always to be kept in view in our system of administration of justice for criminal cases, is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.”9

Khanna, J. essayed on the importance of the fundamental principles thus:

25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt.”10

The learned Judge located the abovementioned principles’ rationale thus:

27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable.”11

It is apparent that strict adherence to the basic principles of presumption of innocence and burden of proof require delicate balancing of the trial procedures by the impartial and independent Judge. Our system reposes much faith in the impartiality of the Judge inasmuch as it confers on him many powers with potential for abuse. Section 165 of the Evidence Act enacts such a provision. It runs thus:

“165. Judge’s power to put questions or order production.—The Judges may, in order to discover or to obtain proper proof of relevant facts, ask any question they please, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.”

A trial Judge in Ram Chander v. State of Haryana12 taking cue from this provision, in an effort to compel the witnesses to speak what he thought must be the truth, very wrongly, firmly rebuked them and virtually threatened them with prosecution for perjury. The Supreme Court found it impossible to justify this attitude and refused to accept any portion of the evidence of the two eyewitnesses recorded by the Sessions Judge. The Court explained its position thus:

“We may go further than Lord Denning and say that it is the duty of a Judge to discover the truth and for that purpose he may ‘ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant’ (Section 165 of the Evidence Act). But this he must do, without unduly trespassing upon the functions of the Public Prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him.”13

It is interesting to see how these cautions percolated down. The Kerala High Court instead of keeping them within their bounds, added new dimensions to Section 165 and the decisions thereon. For example in Vincent v. State of Kerala14 Justice K.T. Thomas (as he then was) declared:

“The contention that the trial Judge cannot be permitted to put questions to fill up the lacuna in the prosecution evidence is equally fallacious because it is the duty of the Judge to put all necessary questions to discover or obtain proof of all relevant facts. Even if it results, sometimes, in filling the lacuna in prosecution evidence, the trial Judge is not inhibited from putting such questions. It is only an exhibition of judicial weakness if a trial Judge points out in his judgment that the cause suffers due to failure of the prosecution of the defence counsel in eliciting proof of relevant facts.”15

The Court justified the act of the Sessions Judge in Vincent14:

“In this case when the Sessions Judge found it necessary to put questions to the defence, she is justified in exercising her power and no matter that she did not put cross-questions to prosecution witnesses.”16

The Court seems to have treated the power under Section 165 as something absolute. But any power given to a Judge in our criminal justice system should be understood in the background of its evolution and the roles and interrelationships of the functionaries under the criminal justice system. Our system’s reputation and credibility depend a lot upon the functioning of our trial Judges who know that justice should not only be done but should be shown to have been done. The latter is possible only if the Judge shows to the world that he is independent and impartial. And this he can achieve only if he maintains a balance by developing an attitude of detachment. Detachment could be achieved effectively if he keeps away from the role of a prosecutor or defence attorney. This is what is expected of him despite the enactment of Section 165 of the Evidence Act. If he enters the ring, he wears the mantle of the Public Prosecutor and the whole purpose of criminal trial would then be defeated. It is too much for a High Court — as the Kerala High Court has done — to say that the trial Judge can put questions, the answers of which may fill up the lacuna in the prosecution case. In fact this is going beyond what was laid down by the Supreme Court. Nor was it the meaning the statutory provisions were given in practice by the lawyers and Judges in our country.

Justice Thomas in the Supreme Court has reiterated his position in State of Rajasthan v. Ani17 wherein he observed:

“The said Section 165 was framed by lavishly studding it with the word any which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power wherever he deems it necessary to elicit truth. Even if any of such question crosses into irrelevancy the same could not transgress beyond the contours of powers of the court. This is clear from the words relevant or irrelevant in Section 165. Neither of the parties has any right to raise objection to any such question.”18

This view of the powers of the trial Judge has led to the situation where the trial Judge’s conclusion on medical aspects has also been upheld. The active role assented to him in this process of reasoning emboldens him to draw inferences from facts even when the prosecutor fails to cull out information by way of examination or cross-examination. It is interesting to note the approach of Justice Thomas in such a situation in State of W.B. v. Mohd. Omar19. In this case the Public Prosecutor did not ask the doctor about the nature of the injury. And the court did not have the benefit of the views of the doctor to decide the gravity of the offence. Justice Thomas responded to this situation thus:

23. No doubt it would have been of advantage to the court if the Public Prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the court to reach wrong conclusion. Though not an expert as PW 30, the Sessions Judge himself would have been an experienced judicial officer. Looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death.”20

About the need for a change of outlook on presumption of innocence, Justice Thomas declares:

31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.”21

These words echo the words of Justice Iyer in 1973 in Shivaji Sahabrao5 and there is not yet a decision like Kali Ram8 to balance the situation. Justice Thomas continue to maintain the position taken by Justice Krishna Iyer, though the explanation given by Justice Khanna remains in oblivion.

Justice Thomas also dwelt on the role of the trial court in the reasoning process. He said:

34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction, the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.”22

The Court proceeded further and commanding Section 106 of the Evidence Act to its aid reasoned:

36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: ‘When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.’

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.”23

The process of reasoning is indeed welcome in exceptional cases where the court is convinced about the truthfulness of the prosecution case in the light of facts established by it in the process of trial. But an overemphasis on this power might sometimes lead the court to making conclusions that may fail to convince others as being legally and factually valid. In this context it is also interesting to note how the Supreme Court drew inference and made a story different from what the prosecution presented to the trial court and the High Court. In State of U.P. v. Lakhmi24 the prosecution set up a story to the effect that a husband who used to quarrel with his wife on account of his drinking habit, killed her. He was caught and trussed upon a tree. During the course of trial he gave statements to the court under Section 313 CrPC. Taking the cue from Section 313(4) CrPC, Justice Thomas concluded that it amounts to legislative guidelines for the Court to give due weight to such answers, though it does not mean that such answers would be made the sole basis of any finding.

The accused’s defence of insanity under Section 84 IPC was not apparently accepted by the Court. But the Court referred to the alternative defence and said:

“However, we have noticed that the accused had adopted another alternative defence which has been suggested during cross-examination of prosecution witnesses i.e. his wife and PW 2 (Ramey) were together on the bed during the early hours of the date of occurrence. If that suggestion deserves consideration we have to turn to the question whether the benefit of Exception 1 of Section 300 IPC should be extended to him?

The law is that, burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 CrPC without referring to Exception 1 of Section 300 IPC is not enough to deny him the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability.”25

Then the Court tries to weave out a story out of the statements of some witnesses scattered hither and thither. Its discussion should be quoted in extenso if it is to be understood as to how the Court presents the montage. The Court discusses:

19. The defence counsel put a definite suggestion to PW 2 (Ramey), during cross-examination, that the incident was preceded by a liasion between Omvati, the deceased and Ramey (PW 2). The suggestion was, of course, rebuffed by the witness. One of the defence witnesses (DW 1) was examined to say that the accused was working in his field till 4 a.m. on the night in question. As that version was not inconsistent with the prosecution story, the aforesaid evidence of DW 1 was not rejected by the trial court. If the version is correct, he would have gone back to his bedroom sometime thereafter. In this connection, we refer to the evidence of PW 3 who said even during chief examination itself that when he saw the accused standing near the bedside of his wife, the witness asked him what did he do, to which he snorted out that he would not spare Ramey (PW 2) also. The evidence of PW 3 (Bhondia) was binding on the prosecution which has a very significant impact on the plea based on the First Exception to Section 300. It indicates that the motive for the accused to murder his wife has some nexus with Ramey (PW 2). According to PW 4 (Raje), he rushed to the house of the accused and saw PW 2 scampering away and then saw the accused inside the bedroom muttering that Ramey had done foul acts with his wife and that he would murder him. Though the Public Prosecutor challenged that part of the witness’s testimony, he did not treat the witness as hostile for the prosecution.

20. The above features positively suggest that the accused would have seen something lascivious between his wife and PW 2 just when he entered the house from the field.

21. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes.”26

Thus concluding, the Judge gave the appellant the benefit of Exception 1 of Section 300 IPC which he never contemplated or planned as a defence. He got off with conviction under Part I of Section 304 IPC with a sentence of 6 years’ RI.

It is not known how Justice Thomas makes out a story which the prosecution or the defence failed to categorically make. In fact he accepts a piece of evidence rejected by the Public Prosecutor saying that he did not treat the witness as hostile. What impact this story may have on the children of the deceased when they grow up should have been considered. If such a story is made out as part of the defence they may ignore it as it is usual for the defence to set up such stories to escape punishment. It makes a difference when it is made by the court. It is pertinent to note that the provisions in IPC and CrPC were made in the context of a stage of development of fundamental concepts about the roles of judiciary and the police. If one ventures to look into various provisions in CrPC one becomes aware of the enormous powers conferred on the judiciary. These powers have tremendous scope for abuse. However, we retain this power with the judicial officers because of our impression that a judicial officer with sufficient experience in legal matters may not abuse the powers. And our judicial officers at the district level have, generally speaking, lived up to this expectation. We do not get frequent complaints about the judicial officers not insisting on production of arrested persons within 24 hours of the arrest, nor do we come across often a judicial officer who has helped a prosecutor after going through the case diary. In the case of granting bail also our judicial officers have been, generally, exercising their discretion in accordance with law and well-established practice. This does not simply mean that it is because our law is very clear that the judicial officers function well. On the contrary, it is definitely because of the good relations the Bench and the Bar have been developing and maintaining as in the case of other common law countries. The legal culture we have evolved has helped us to develop certain conventions and practices bordering ethics and law. Our laws are made in this cultural context. To read them out of this context would make them dogmatic and unworkable. This becomes evident if one examines the provisions in our law.

A look into the various provisions of the Indian Evidence Act may indicate that the provisions have been enacted with the understanding that neither the Judge nor the lawyer would go beyond a limit set by the practitioners during the last two centuries despite the malleability of the provisions. For example, if one looks into the meaning of Sections 8 and 9, this aspect becomes clear. An imaginative Judge could stretch Section 9 to make anything relevant. Likewise what is not admitted in evidence under a provision could be brought in as an aspect relevant under Section 8. However, because of our lawyers’ background they may not stretch these provisions beyond the breaking point.

Indeed, our criminal justice system has not been successful in ensuring conviction in all cases. Critics used to say that this is due to the sacred adherence of our Judges to the presumption of innocence and the requirement of proving the mental element. There is no harm in reversing the trend of frequent acquittals on technicalities. But this reversal should not be at the cost of losing the credibility and reputation of the Judges as impartial functionaries. In reality Judges may be impartial and independent, but their credibility depends upon how they function. If by any chance there is an impression that there is no harm in a Judge filling up the lacuna in a prosecution case, he cannot give the impression that justice has been done even though he has done justice. This will have a very dampening impact on our system.

The decision in Lakhmi24 though a bold one in the present context, does not strike the balance. It does not take the legal culture out of which the criminal procedure law and evidence law emerged into consideration. These laws closely associated with practice would have vivacity only if they are interpreted in their cultural context. That is the main reason why our system insists on appointing only persons with judicial experience as Judges. Appellate Judges in our country usually do not resort to appreciation of evidence done by the Supreme Court in Lakhmi24. If this sort of interpretation is adopted practically there will be no difference between the adversarial system of trial and an inquisitorial system. The Indian legal fraternity rightly stands by the former and the Supreme Court should not try to rewrite the fundamental principles of criminal justice administration as it does not have the mandate for doing so. The record of our Supreme Court would indicate that if one of its Benches had rendered a decision with potential to tilt the balance on legal question, another Bench would come up with another one subsequently, to maintain equilibrium. Sometimes there could be conflicts of views. And they would be resolved by the Judges themselves. Such a tendency indicates the vitality of the system as pointed out earlier. After Shivaji Sahabrao5 came Kali Ram8, Ram Chandra12 decisions. But, after Lakhmi24 and Ani27 there is no decision yet to correct the balance. How long should we wait to have a Judge like Justice Khanna to come up with a bold explanatory judgment to allay the fears of liberal-minded legal practitioners in India?



* Professor and Dean, Faculty of Law, CUSAT, Cochin. Return to Text

1. It is specifically mentioned in Section 301 CrPC that the PP shall conduct prosecution without the court’s permission. Return to Text

2. Under our system the Judge reserves the right to restrict the questioning process. Under the French system it is only with the permission of the court that the defence can question the witness. Return to Text

3. See Patrick Devlin: Criminal Prosecution in England. Return to Text

4. Under the continental system investigation is done by the investigating Magistrate and it is really the dossier which he prepares that is on trial. Return to Text

5. 1973 SCC (Cri) 1033 Return to Text

6. Ibid., p. 1039, para 6. Return to Text

7. Ibid., p. 1047, para 19. Return to Text

8. 1973 SCC (Cri) 1048 Return to Text

9. Ibid., p. 1059, para 23. Return to Text

10. Ibid., p. 1060, para 25. Return to Text

11. Ibid., p. 1061, para 27. Return to Text

12. 1981 SCC (Cri) 683 Return to Text

13. Ibid., p. 686, para 3. Return to Text

14. 1984 KLT 950 Return to Text

15. Ibid., p. 954. Return to Text

16. Ibid., p. 955. Return to Text

17. 1997 SCC (Cri) 851 Return to Text

18. Ibid., p. 854. It may be pertinent to note that of late the Supreme Court in Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646 : 2000 SCC (Cri) 522 ruled: “It is necessary to remember that a Judge does not preside over a criminal trial merely to see that a guilty man does not escape. One is as important as the other.” Return to Text

19. 2000 SCC (Cri) 1516 Return to Text

20. Ibid., p. 1523-24, para 23. Return to Text

21. Ibid., p. 1525, paras 31-32. Return to Text

22. Supra fn 21, pp. 1525-26, para 34. Return to Text

23. Supra fn 19, p. 1526, paras 36-37. Return to Text

24. 1998 SCC (Cri) 929 Return to Text

25. Ibid., p. 934, paras 16-17. Return to Text

26. Ibid., p. 935, paras 19-21. Return to Text

27. Supra fn 17. In fact the High Courts also now seem to have been influenced by the trend of not insisting for proof beyond reasonable doubt. Return to Text

In Birendra Sah v. State of Bihar, 2000 Cri LJ 3673 on the relevance of the evidence of the lady doctor to the effect that there was no rape, the High Court declared at p. 3676 thus: Return to Text

“It is also settled law that the victim of sexual assault is not treated as an accomplice, as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. Even if the doctor who examined the victim does not find sign of rape it is no ground to disbelieve the sole testimony of the prosecutrix.

The doctor found her hymen intact. The only evidence the doctor found was semen-marks on the clothes of the victim girl.”


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