Broadly speaking: Laws which shift the Burden of Proof on the Accused

INTRODUCTION

In a criminal trial, one of the two parties is presumed to be innocent, the process by which the party is to prove or disprove a conflicted or disputed fact is called the Burden of Proof. This duty is placed upon the defendant in criminal cases. This concept does not violate the right of the accused to be presumed innocent until proved otherwise. The term ‘burden of proof’ carries a two-dimensional explanation. Firstly, the process by which a party asseverates the corroborative of an issue is called the ‘legal burden’ and this is also referred to as the question of law. Secondly, the process of providing the case with circumstantial evidence to represent it prima facie based on which the accused could be established as guilty is knows as ‘evidential proof’. Though, certain laws shift the burden of proof on the accused. The doctrine of ‘Res Ispa loquitor’ provides for the reverse burden in civil as well as criminal cases.

REVERSE ONUS OF PROOF

Presumption of innocence is the elementary principle of a trial and the burden of proof is directly linked to the burden of proof on the prosecution to establish the guilt of the accused, this burden of proof sometimes shifts to the other party. The process by which the liability to answer in the affirmative to confirm a fact in issue is passed from one party to the other during a criminal trial is known as the concept of Reverse Onus. The burden of the proof keeps shifting in a criminal trial depending upon the evidential burden but primarily, it rests upon the prosecution. There may arise a situation where the accused would be asked to prove certain facts which he is asserting to affirm. This concept could be traced to various laws in the country like the Narcotic Drugs and Psychotropic substances act, 1985 and Indian Evidence Act, 1872 as well as the Indian Penal Code, 1860.

Reverse onus found in Narcotic Drugs and Psychotropic substances act:-

The NDPS act requires the accused to prove himself innocent unlike the normal functioning of the criminal laws where the accused is presumed innocent until proven guilty. It was opined by the Law Commission of India that all the offenses related to the use of Narcotics are a threat to the ‘heath and material welfare’ of the community as a whole and special provisions are required in such cases. Section 54 of the NDPS act, 1985 works in compliance with the reverse onus principle and states that any person who has been found in possession of cannabis should prove that he has a license to justify the permission to cultivate the same.

The reverse onus in the Indian Evidence act, 1872:-

Section 105 of the Indian Evidence Act states that - When a person is accused of any offense, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or any law defining the offense, is upon him, and the Court shall presume the absence of such circumstances. So, in the cases where the accused claims that he killed another person by the reason of losing rationale due to involuntary intoxication or unsoundness of mind, the burden of proof shifts to the accused and it becomes his duty to prove his innocence beyond a reasonable doubt.

Reverse Onus in the Indian Penal Code, 1860:-

The provisions related to the offenses of Rape and Dowry death make it mandatory for the accused to prove his innocence and come clean regarding his intention to commit the act regarding mens rea and knowledge or motive regarding actus reus. The words ‘such husband or relative shall be deemed to have caused her death’ in section 304B of the IPC clearly indicate the principle of Reverse Onus. Similarly, in the cases related to the offense of rape covered under Section 375 of the Indian Penal Code, a man is said to commit rape who has sexual intercourse with a woman and the onus of proof is on the man himself.

It is to be taken into account that these cases only shift the evidentiary burden of proof on the accused because if they were to distinctly shift the legal burden of proof, they would violate Article 21 of the Constitution as the presumption of innocence only relates to the legal burden so the evidentiary burden of proof remains unaffected.

A legal provision does not become unconstitutional only because it provides for a reverse burden. The question as regards the burden of proof is procedural in nature.

CONCLUSION

It is the cardinal principle of Common law to presume the accused is innocent until proven guilty but some offenses call for the spectacle of the shift of the burden of proof on the accused as provided in the Indian Evidence Act, etc but unlike other countries, no special study has been conducted in India to indeed evaluate the offenses which should fall under the ambit of reverse onus which needs to be taken care of. It is organic for the onus of proof to keep shifting during a trial depending upon the kind of evidence produces by both parties but the cases where the onus is on the accused from the start should be reviewed and a proper framework should be made for it

[ Author Anjali Chaudhary is a student of Alliance School of Law, Bangalore]

[Edited by - Sakshi Arya]

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Law commission of India, 47th Report – The Trial and Punishment of Social and Economic offences 2, 4 (1972)

Radhakisan Parashar v. State, 1988, Cri L. J. 17, 18

Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har¬assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison¬ment for a term which shall not be less than seven years but which may extend to imprisonment for life.]

Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de¬scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law¬fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Paragraph 5.7, Malimath Committee Report

Hiten P. Dalal v. Bratindranath Banerjee,(2001) 6 SCC 1

Article 11(i) of the Universal Declaration of Human Rights, 1948.