Re-writing the Concept of Burden of Proof; Supreme Court Judgment in Sher Singh @ Partapa Vs. State of Haryana requires re-consideration
The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the charged offence. Presumption of innocence is a human right as envisaged under Art.14 (2) of the International Covenant on Civil and Political Rights 1966. Art.11(1) of the Universal Declaration of Human Rights 1948 also provides that any charged with penal offences has a right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Even before, it was part of English Common Law as observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions, (1935 AC 462), [Golden Thread Judgment] that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained''. This principle is also became a fundamental part of Criminal Law of India. [See V. D. Jhingan Vs. State of Uttar Pradesh AIR 1966 SC 1762] It is also the cardinal rule of our criminal jurisprudence that the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. But in Veeraswamy Case [(1991) 3 SCC 655] the Constitution Bench held that “…….a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Art.21 of the Constitution as contended for the appellant. It may be noted that the principle reaffirmed in Woolmington case (Supra), is not a universal rule to be followed in every case. The principle is applied only in the absence of statutory provision to the contrary”. As observed by Justice K.T.Thomas in State of West Bengal v. Mir Mohammad Omar and Others, [2000 (8) SCC 382] that “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”. The Concept of “reverse burden” has been adopted in many statutes like Negotiable Instruments Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act etc. In Indian Evidence Act, Section 113A (for S.306 IPC) and Section 113B (for 304B IPC) places a reverse burden on the accused.
A Two Judge Bench [Vikramjit Sen and Kurian Joseph.JJ] of the Supreme Court in Sher Singh @ Partapa Vs. State of Haryana [Criminal Appeal No. 1592 of 2011 dt 9.1.2015] while dealing with S.304B IPC and S.113B Evidence Act interalia held as follows;
- The Prosecution can discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities
- Once the presence of the concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.
- Keeping in perspective that Parliament has employed the amorphous pronoun/noun "it" (which we think should be construed as an allusion to the prosecution), followed by the word "shown" in Section 304B, the proper manner of interpreting the Section is that "shown" has to be read up to mean "prove" and the word "deemed" has to be read down to mean "presumed".
Regarding the third proposition, there is no scope for doubt since the Courts in India have been interpreting the word "shown" to mean "prove" and the word "deemed" has to mean "presumed" though not expressly declared as ‘reading down’ and ‘reading up’. [See Gurdip Singh vs. State of Punjab (2013) 10 SCC 395 in which Kurian.J held "Though the expression “presumed” is not used under Section 304B of IPC, the words “shall be deemed” under Section 304B carry, literally and under law, the same meaning since the intent and context requires such attribution"]
But the first two propositions require serious consideration because of a profusion of precedents against it. The genesis of Section 304B of IPC introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91st Report of the Law Commission of India. The Commission, in its Report dated 10th August, 1983, recommended reform of the law to deal with the situation which led to incorporation of Sections 304 B in IPC, making 'dowry death' an offence and Section 113B in the Evidence Act which provides for raising a presumption as to dowry death in case of an unnatural death within seven years of marriage when it is shown that a woman was subjected to harassment for dowry soon before her death. Presumption under S.113B of Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials;
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under S.304B, IPC.)
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death. [Raman Kumar vs. State of Punjab (2009) 16 SCC 35].
Reading S.113B of the Evidence Act, as a part of S.304B, if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused the dowry death" [S.M.Multani v. State of Karnataka AIR 2001 SC 921]. The key words in S.113B are ‘shall presume’ leaving no option with a Court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable.
Can the prosecution discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities?
There is a catena of precedents which unequivocally held that in order to establish the offence of dowry death under Section 304B, IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. Most recently in Karan Singh vs. State of Haryana [(2014) 5 SCC 73- Ranjana Prakash Desai.J and Madan B. Lokur.J ] it was held as follows;
“It has been held times without number that, "To establish the offence of dowry death under Section 304-B IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. In Rajeev Kumar v State of Haryana [AIR 2014 SC 227- AK.Patnaik.J and Gyan Sudha Misra.J] it is held as follows;
“One of the essential ingredients of the offence of dowry death under S.304B, IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Indian Evidence Act.”
In Indrajit Sureshprasad Bind v. State of Gujarat, [(2013) 14 SCC 678], it was again held that to establish the offence of dowry death under Section 304B, IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. In Vipin Jaiswal Vs. State of A.P.[(2013) 3 SCC 684; AIR 2013 SC 1567] the positions is made clear as follows;
In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, IPC, the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. Similarly, for the Court to draw the presumption under S.113B of the Evidence Act that the appellant had caused dowry death as defined in S.304B, IPC, the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment or cruelty, neither of the offences under S.498A and S.304B, IPC has been made out by the prosecution.[Also see Madivallappa V. Marabad Vs. State of Karnataka 2013(2) SCALE 665 ;Devinder Vs. State of Haryana (2012) 10 SCC 763; Narayanamurthy Vs. State of Karnataka AIR 2008 SC 2377 ; (2008) 16 SCC 512]Raj v. State of Punjab and Others [(2000) 5 SCC 207];Sanjiv Kumar v. State of Punjab, (2009) 16 SCC 487;Bakshish Ram Vs. State of Punjab (2013) 4 SCC 131]
In Arulvelu Vs. State [(2009) 10 SCC 206] while allowing an appeal filed by the Accused against conviction U/S 304B and 498A IPC the Apex Court held that In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The above Judgments reflect the judicial consensus in the issue and the Judgment in Sher Singh @ Partapa Vs. State of Haryana is a clear deviation from the settled principle of law. It is also to be noted that even in statutory offences which creates absolute liability the initial burden is on the prosecution and it must be discharged by the prosecution by the standard of proof beyond reasonable doubt. [See PC Act- State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar [AIR 1981 SC 1186]; NDPS Act -Bhola Singh Vs. State of Punjab (2011) 11 SCC 653; NI Act; Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 (1) SCALE 421]
Whether the accused has to discharge his burden beyond reasonable doubt?
In Para-14 of the Judgment it is held as follows;
“It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt”.
In Para-17 of the Judgment it is held as follows;
The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. ..........................In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and erudite judgment of this Court in P.N. Krishna Lal v. Government of Kerala, [1995 Supp (2) SCC 187], in which decisions spanning the globe have been mentioned and discussed.
In P.N.Krishna Lal (Supra) a two Judge Bench [K.Ramswamy and N. Venkatachala.JJ] of the Supreme Court upheld the constitutional validity of Section 57A of Kerala Abkari Act which also placed a reverse burden on the accused [(sub-s.(5)]. But there is no whisper in Krishna Lal (Supra) in support of the proposition that the Accused has to discharge his burden beyond reasonable doubt.
In Sanjiv Kumar v. State of Punjab, [(2009) 16 SCC 487 -B.P.Singh and Tarun Chatterjee.JJ] it was held as follows;
If the accused successfully rebuts the presumption by pleading and proving a probable defence, the presumption under S.113 - B stands rebutted and the prosecution must prove its case without the aid of such presumption.
In Para-20 of the Judgments the Apex Court held in no uncertain terms as follows;
“We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trials, though the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the appellant is probable and true.”
Burden of proof in offences created by legal fiction;
In Para-14 of the Judgment Justice Sen held as follows;
As is already noted above, Section 113B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others.
It is also held that “In our opinion, it would not be appropriate to lessen the husband's onus to that of preponderance of probability as that would annihilate the deemed guilt expressed in Section 304B, and such a curial interpretation would defeat and neutralise the intentions and purposes of Parliament.
It is respectfully pointed out that no Judgment either Indian or foreign has been cited in support of the above preposition. The two Judge Bench was not appraised of any precedential support when giving a new interpretation to a provision which is contrary to the consistent view taken by the Supreme Court for the last 28 years. It is a well established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment [Rangammal vs. Kuppuswami AIR 2011 SC 2344]. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to any purpose other than the one mentioned in the statute itself [See Raj Kumar Khurana vs. State (2009) 6 SCC 72 ]. In Devinder Vs. State of Haryana [(2012) 10 SCC 763], it is held that the word “deemed” in Section 304B, IPC, however, does not create a legal fiction but creates a presumption that the husband or relative of the husband has caused dowry death. Section 138 of Negotiable Instrument Act also contains the words “shall be deemed to have committed an offence”. It is well settled that offence U/S 138 is created by a legal fiction [See R. Kalyani v. Janak C. Mehta and Others 2009 (1) SCC 516 and DCM Financial Services Ltd. v. J.N. Sareen and Another, 2008 (8) SCC 1] A three Judge Bench of the Supreme Court in Rangappa v. Sri Mohan [AIR 2010 SC 1898] examined the degree of proof required for an accused to discharge his burden in a prosecution U/S 138 0f NI Act and it is held as follows;
“S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments...........it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail”
In Para-14 of the Judgment it is held as follows;
“It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt” But the following provisions will make it clear that if the Parliament intends the accused to discharge his burden/part of burden/or to prove any ingredient beyond reasonable doubt, it would have expressed in clear terms.
- 35 of NDPS Act
- 138A of Customs Act
- 278E of Income Tax Act
- 9C of Central Excise Act 1944
- 30 of POCSO Act 2012 [List is not exhaustive]
Section 35 of NDPS Act is extracted below;
- Presumption of culpable mental state.
(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation. -In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
All other Sections quoted above are in parimateria with Section 35 of NDPS Act.
Explaining the nature and extend of burden cast on the Accused U/S 35(2) of NDPS Act, in Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821] , Justice KT.Thomas speaking for three Judge Bench held as follows;
“The burden of proof cast on the accused under S.35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under S.35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.”
Even in a case where the statute (S.35 NDPS Act) requires the accused to prove his case beyond reasonable doubt, the three Judge Bench of the Apex Court had read it down in the afore said manner, evidently to save the section from the vires of Constitution.
Hence, except when there is a statutory provision which cast the burden of proof to a degree beyond reasonable doubt on the accused, the Court cannot impose such a heavy burden on him. It is definitely a new innovation, something which Parliament had not even thought of while enacting S.304B IPC and S.113B Evidence Act. The inherent disability of an accused must always be borne in mind by the Courts when casting the degree of proof on the accused. The position becomes more formidable as Article 20(3) of the Constitution of India offers the constitutional protection to the accused by saving him from testimonial compulsion. I strongly doubt that the ratio propounded by the two Judge Bench in Sher Singh @ Partapa Vs. State of Haryana is not only contrary to the well established jurisprudential standards in criminal cases, but also amounts to negation of the fundamental right to fair trial guaranteed under Article 21 of Constitution of India.
M.A.Rashid is the Co-Founder of LIVE LAW. He revised Ratanlal Dheeraj Lal “Indian Penal Code” (34th Ed) with Justice KT Thomas