STANDARD OF PROOF IN CRIMINAL CASES BY - ANJALI BHATT
AUTHORED BY - ANJALI BHATT,
Assistant Professor (Senior- Scale),
School of Law, University of Petroleum and Energy
Studies, Dehradun
INTRODUCTION
Since the old age, the
fundamental principle in the Indian Criminal Justice System and procedural
fairness in criminal law is perhaps the presumption of innocence i.e. based on
the idea that until or unless you prove the guilt of an accused, he would be
presumed as innocent.[1]
The root cause behind the reason “why it is considered fundamental” is because
of the golden rule of Criminology which says “allowing the guilty to go free is always better than convicting the
innocent”.[2] When
it comes to protecting the accused this principle seems to be invaluable laying
upon the heart of criminal law, there seems a contest amid two unequal actors
i.e. accused and the State.
The principle of
Presumption of innocence not only protects human dignity and his fundamental
liberty but also prevents the accused from being affected by the repercussions
of grave social legal consequences resulted from the conviction unless the
contrary is proved. This principle keeps a dominant importance in any society
that believes in social justice and equity therefore this principle seems to be
of paramount respect by both the Judiciary and Legislature.[3]
Burden of Proof to a great
extent is linked with the presumption of innocence. This term Burden of Proof
connotes the simple meaning that which party has the obligation or onus to
prove the existence of certain facts during the criminal or civil trial.
The Honorable Supreme
Court of India in the case of Rangammal v. Kuppuswami
and Ors,[4]defined
the meaning of Burden Of Proof[5]in
context with section 101 of Indian Evidence Act. Since innocence presumption is
one of the most fundamental element of trial which always have to be kept in
mind therefore the ultimate and legal Burden of Proof always lies on the
prosecution to establish the guilt of accused.[6]
In order to discharge the Burden or onus by the prosecution, the Standard of
Proof in Criminal Law requires the prosecution to prove a concurrence between
the actus reus and mens rea “beyond all the reasonable doubt”. Once the
prosecution has discharged his onus then this onus gets shift to the other
party namely the accused to rebut the presumption of Court on the premise that
such specific circumstances was absent either by raising an exception or by defense.[7]
This is essentially referred as the reverse evidential burden which requires
the accused to prove or satisfy the “prudent man standard” or entails him to
create the “reasonable doubt” in germane to one or more essential elements of
the crime. On the other hand prosecution will continue to bear the legal burden
to refute the exculpation of the other party. If the Court thinks that accused
has succeeded in creating the reasonable doubt would favor the accused to get
acquitted with the crime because prosecution has been failed in proving his
case beyond all the reasonable doubt.[8]
Therefore the onus to prove all necessary components of a crime lies on the
prosecution from dusk to dawn of a trial.
The highest
standard of proof that must be met in any criminal trial is Proof beyond the
Reasonable Doubt[9]
whereas in civil matters the requisite standard of proof is“Preponderance of
Evidence” or “Proof by clear & convincing evidences”.[10]
In terms of intensity of standards the standard requires in criminal cases is
much higher than required in civil cases. When the party has more evidences as
compared to other party even by the smallest degree known as Preponderance of
evidence.[11]
Another term i.e. Clear and convincing proof connotes the fact that party is
raising or establishing the higher probability in regard to the fact sought to
be proved is true.[12]
The idea behind why the higher standard is required in criminal matters is
because of the punishment, so inflicted can result in the deprivation of the
accused liberty or even might result in his/her death. Thus the outcome of
criminal matters is much severe than the civil matters where you have monetary
remedy.
The author in this
project have dealt with various issue in relation to proof beyond the
reasonable doubt and would throw light on the meaning of Standard of Proof, why
this higher standard of proof is required in criminal matters. Author further
in this project has delved with the implications attached with this doctrine
and have shown the benefits of having the fixed standard. Although this term
“Standard of Proof” in criminal matters is not being defined under the Indian
Evidence Act, 1872 but the concept of this term has been broadly defined by the
Apex Court’s in some of the prominent judicial pronouncements. Author in this
project have also argued the bad side of this requisite standard and have tried
to propose an alternative to this standard.
MEANING OF STANDARD OF PROOF
The terms “Quantum
of Proof” & “Standard of Proof” are usually being used interchangeably
in order to refer the magnitude of legal burden of proof. They essentially
signify the extent of degree of burden in order to discharge the legal burden.[13]In
any case what fluctuates from cases to cases is the degree that is required by
both the parties to satisfy the court that the essential facts have been
established. This degree of satisfaction is essentially called as standard of
proof.[14]
As per the report of the Malimath Committee[15],
there are basically three degrees of Standard of Proof namely Persuasion on the
balance of Probabilities, second is Standard of Clear & Convincing Proof
and the third and last one is Proof beyond the Reasonable Doubt.[16]
In the leading case
R.V.E. Venkatachala Gounder Arulmigu Viswesaraswami v. V.P. Temple[17]
it was held that in civil matters the case can be proved by the Preponderance
of the crime but in criminal matters the standard of proof that is to be adhere
i.e. proof beyond the reasonable doubt which is higher than civil matters.
However the
standard for both the parties namely the Prosecution and the accused differs in
terms of intensity of degree of Proof. Venkatachala’s case mentions the
requirement for the prosecution to adhere the higher standard of proof, Proof
beyond the reasonable doubt or says that prosecution is required to prove his
case beyond the reasonable doubt but this standard is only applicable to the
state not to the accused. When it comes to accused they are required
comparatively low degree of standard to prove their case.
In an another
prominent case V.D. Jhingan v. State of U.P[18],
it was observed by the Court on page no. 1764 that it is not imperative for the
accused to adhere or to bear the same degree of Standard of Proof as required
by the prosecution. It would be sufficed if the accused has favored his case by
the Preponderance of Probabilities. In order to prove his case the onus that
accused bears is the preponderance of Probabilities therefore it is not
necessary for the accused to follow the same standard as followed by the
prosecution.
For the purpose of
this project our concern will lie on the third category of the standard of
proof i.e. Proof beyond the reasonable Doubt as this standard in common law
requires the prosecution to proof his case beyond the reasonable doubt. However
instead of having the standard of proof, the degree to which one must satisfy
the court differs and varies from case to case, facts to facts and
circumstances of the case.
THE SENSE OF PROOF BEYOND REASONABLE DOUBT
Whatsoever is being
supposed the purposes of the criminal justice system, one of the essential
principles of criminal justice system seem to have evolved in jurisprudence of
common law custom; that before the conviction of the accused person his guilt
must be established beyond all the reasonable doubt. In this regard the
beautiful statement[19]
of Brenna J can be traced in the decision of In Re Winship.[20]
The first
reasonable perspective from the accused point of view can be drawn and this is
essentially moral in nature. Court needs to ensure that before the society
visit & experience the severe and detrimental consequences of the
conviction on the person so accused, the Court must be ethically and reasonably
certain of his guilt.[21]
In the landmark decision Indian Supreme Court reiterated that under Indian
Evidence Act, 1872 the absolute certainty is not required.[22]
The standard so far as developed in common law tradition requires the Courts to
consider and reject all reasonable doubt or explanation before it convicts.[23]
At the stage of conviction the accused person stands to lose more than just
liberty, corporal punishment may be subjected to him and in some prosecutions
he stands to lose even his life. Therefore in terms of rights, accused body has
the right not to be convicted unless or until his guilty being established
beyond the reasonable doubt.
Second reason that
focus on the interest of the society and community in sustaining the reasonable
doubt standard. The purpose of law is to protect the members of the society
from unscrupulous activities that may unjustifiably injure them. If the
standard has to follow the reasonable doubt criteria as to guilt than there is
a reasonable possibility that it may lead to punishing the innocent person. If
this possibility appears to be true than in many number of cases conviction is
possible notwithstanding reasonable doubt, the criminal law is self- defeating.[24]
There will lay no
difference between the criminals and police, courts and prison officials who
injure the people of the society provided these institutions would be more
powerful than average criminal. As a result of this, it will result in
mitigation of respect of people for the law & order and will be detrimental
to their assurance in their mind that in system only guilty is punished not the
innocent one. It is because of these above mentioned reasons law of Evidence
has statute this kind of standard in criminal law.
BENEFITS OF THE FIXED STANDARDS
In any judicial
system what is important is the consistency in judicial decision making &
is definitely crucial for all systems of law. If system lacks consistency would
lead to the issue of fairness and believe in system and will have the
detrimental and negative impressionto the respect which people have for the law
and order. Indian Constitution embodies the principle of equality[25]
and prohibits the arbitrarily action therefore it is must to have the same kind
of standard and fixed standard. There would certainly be some kind of
expectations and apprehension of repercussions of our act on which one is indulging.
This kind of universal understanding of the consequences and appreciation for
the repercussions is built up through consistency of judgments, verdicts and
finding for crimes of similar natures achieved through a fixed standard.
Consistency in terms of appears fitting & outcomes of trials will lead in
growing of respect for the law. If there increases the respect for law than
more people is likely to follow it as a result of that society would be more
just and well-functioning society. This essentially reflects the ultimate desire
of the people in society. Thus the critical benefit and advantage of having the
fixed standard of proof is that there seems a consistency in decision making.
This benefit of having the fixed standard can be reflected by the established
judicial pronouncements.
In such regard the
one case[26]
where DNA evidence was considered sufficient in order to reach the guilty
verdict. The facts are as follows, a young women in 1991 was grabbed from
behind and being raped. The only identity she could avail to the police that he
was clean-shaven Caucasian man. Later on she went for physical examination that
inculcates vaginal swab.[27]
Semen traces was revealed by the Forensic experts and then they further
developed the DNA profile. A person named Mr. Denim Adams was arrested after
two years on charge of sexual offences. Mr. Adam’s blood sample was taken and
made his DNA profile and eventually his DNA profile was matched with the
evidence recorded during the Young women’s rape by the Forensic experts when
they run his profile in their system.[28]
It resulted in the arrest of Mr. Adam and charger with the rape of that young
lady. This matching of the DNA was only the substantial evidence against him.
He was awarded punishment despite of the victim’s claim that he doesn’t look
like that assailant.
PROBABILITY WHEN AMOUNTS TO PROOF?
The proof beyond
the reasonable doubt is a question of subjective test; it cannot be expressed
and reckoned in terms of mathematical units. In the leading case Krishna Vs
State[29]
Court defines when probability and doubt be turn up into reasonability. Court
said that “for a doubt to be a reasonable, it must be free from the zest of
abstract speculation and over emotional response and should be based on reason
and common sense.[30]”
In a case where the
name of adoptive parents was used by the adoptee in school records and adoptee
also performed the death anniversaries of the adoptive parents termed by Court
that this constitutes the sufficient evidence to prove the factum of adoption.[31]
“A fact is said to be proved when after
considering the matters before it, Court either believes it to exists, or
consider its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
exists.[32]” This is the criteria provided by the Court to
judge when we can say that fact in question has been proved. It is pretty clear
that above mentioned definition gives the wide discretion to the Court to judge
the validity of the fact in issue and the word prudent man plays the vital role
because of the existence of such fact has to be judged as the prudent man would
have under all the circumstances.
In regard to view
given by Court in Jahed v. State[33]
it can be said that as per section 3 of Indian Evidence Act 1872, Courts have
never insisted the absolute degree of proof. However Court insisted that that
in a criminal trial, degree of proof is stricter as compared to require in
civil matters. In criminal matters depending upon the facts and circumstances
of the case, the charge made against the accused must be proved beyond all
reasonable doubts and this requirement of standard of proof cannot lie in the
dominion of assumptions, surmises and conjectures.[34]
It is imperative to
know in light of the circumstances that the effects of evidence in criminal and
civil matter are not however always the same and it has through many judicial
pronouncements have laid down that a fact for the purpose of civil suits may be
regarded as proved, though the evidence might not be considered as sufficient
enough for the purpose of conviction in criminal cases. Therefore there is a
best saying that “there is a marked and strong difference as to the effect of
evidence in both the criminal as well as civil proceedings. In the later ‘mere
Preponderance of probability in terms of burden of proof, is sufficient in
order to reach the decision but in former especially when the nature the nature
of crime is of treason and felony, a much higher degree of assurance is
required.
In a case of Woolmington V. DPP[35],
where the person was arrested on account of charge of murdering his wife and
when the matter approached to House of Lords[36]and
HOL reviewed the decision of lower court which stated that burden of proof is
on the accused that he did not kill his wife. Court in this landmark judgement
reiterated that this seems to have obviously against and violation of
fundamental principle of criminal law i.e. presumption of innocence. Court
stated that burden of proof lies on the crown thus it is upon the crown to
prove both that he killed his wife and he also intend to kill and these must be
proved beyond a reasonable doubt. This same principle was also elaborated in
Mancini V. DPP.[37]
In this regard
Denning LJ observed: “It is true that by our law there is a higher standard
or proof in criminal cases than in civil cases, but this is subject to the
qualification that there is no absolute standard in either case.” In
criminal cases the charge must be proved beyond the reasonable doubt but there
may be degrees of proofwithin that standard, so also in civil cases.
There may be
degrees of probabilities.[38]”
so it is submitted that by his definition it can be reasonably concluded that
there is no fixed standard of proof as he said that “there may be degrees in
that” so the level of degree of proof varies from cases to cases and facts to
facts. This opinion was also supported by Hodson LJ.[39]
For example rape is
elaborated as sexual intercourse with women without her consentso here the
burden lies on the prosecution to prove the guilt of accused beyond the
reasonable doubt. For the purpose of proving he needs to prove: that an accused
in question had sexual intercourse with the lady, further he is required to
prove that intercourse was without her consent. Prosecution also required proving
that accused did not genuinely believe that women were consenting to her act.
Now the burden shifts to the accused to prove his innocency. However he can
take the defense contained under sec 105of Indian Evidence Act that accused’s
case falls on the defense of mistake or general exception clause. For the
purpose of this he is required to prove that he genuinely believed that woman
is consenting. However these general exceptions may be proved by the accused
person on the balance of probabilities. He must therefore establish that: a) he
made a genuine mistake regarding the consent; b) his mistake was under the good
faith. If he is able to prove this than he can be acquitted unless the
prosecution can prove their side beyond the reasonable doubts that either a) he
did not really believe that person was consenting b) his belief in consent was
vague.
The basis for the
criminal jurisprudence is British model which requires offence so alleged has
to be prove beyond all the reasonable doubt.[40]The
most important thing that is to be noted here is doubt that is requisite to be
removed should be of reasonable man, it doesn’t take into consideration every
on any kind of doubt which has its roots in guess and surmises. In this regard
the judgement given in State of West Bengal V. Orilaljaiswal[41]
holds that doubt so raised must be of a reasonable man and the standard so adopted
to prove doubt must be of a reasonable and just man in order to come to a
conclusion considering the particular subject matter.[42]In
lieu of the above mentioned authority it can be possible concluded that Court
always do not adhere and stick to only this fixed standard and the standard of
the prove varies from case to case, the more the grave case is the stricter the
degree of proof required. The standard proof beyond the reasonable doubt based
on the ambit of opinion of the reasonable man in that situation.
In
Rawalpentavenkalm and Anr. V. State of Hyderabad[43],
two accused namely Rawalpenta Venkalm and Bodla Ram Narsiah have been sentenced
to death of Mr. Moiddnin along with three others who were acquitted by the
learned trial judge. In this case accused set fired the hut by locking the door
from outside in which victim was sleeping in furtherance of conspiracy.
Victim’s servant was sleeping outside and was awakened because of noise and
heat. Moiddnin asked for his help but he replied he cannot because door is
locked form outside than he called other three employees from outside. When
they came to rescue they were assaulted by the accused, further these employees
went to village for help and called the villagers. In the rescue of villagers
they were prevented by the appellants by throwing the dust in their eyes.[44]
Court said that
burden of proof lies on the prosecution to prove all these circumstances and in
furtherance of the enquiry prosecution examined more than 19 witnesses who saw
the occurrence from beginning to end. Accused accepted their guilt after
investigation and court passed the degree of convicting these accused and said
that prosecution has proved his case beyond the reasonable doubt whereas the
accused failed to create the reasonable doubt as not to commission of crime
therefore all these accused are liable for murder.[45]
To strengthen this
it was held in Sarwan V. S[46]
that if the story of prosecution is based wholly on the expressions of “may
be true” in such scenario the conviction cannot be sustained. For a
conviction to be sustained it is imperative that prosecution’s story must be
based on the expressions of “must be true” but between these two
expressions must be true and may be true, the truth is inevitably a long
distance to travel and the whole of this distance must be covered by legal,
reliable and unimpeachable evidences.[47]
PROOF BEYOND THE REASONABLE DOUBT AND THE DISCRETION OF THE
COURT
The doctrine of
“Proof beyond the reasonable doubt” is well settled under the criminal justice
system but this doctrine nevertheless is subjected to the discretion of Court.
Court in many prominent judicial pronouncements has established that the degree
of proof in criminal law varies from cases to cases. It has been already
pointed out by Denning LJ[48]
that under this degree of proof beyond the reasonable doubt, there are many
degree in it, so the standard of proof varies from cases to cases.
In landmark
decision of KansamningalMikoi Devi V. kunamAchouba Singh[49]Gauhati
high Court observed that in order to judge the situation the Indian Evidence
Act does not give any standard and method. It all depends to the discretion of
Court to judge the situation on the parameters of circumstances and facts of
the case, the materials placed before the Court and after due considerations of
these materials, the Court either consider its existence or either believes in existence
of these materials so probable that a prudent man would in lieu of these
circumstances to act upon the supposition that it exists. “The act as such
left the decisions to be made by the judge who would act like that of prudent
man after considering the materials before him, considers the fact to be roved,
disproved or not proved.” Proof cannot be said as scientific tool which can
be readily used rather it is left to be judges by the Court with the help of
human experience and judicial sense.
Court further said
that this Evidence Act per se do not define the quantum of evidence that might
be required in order to reach a fact to be proved in a Court of law. The judge
usually act on the evidence placed before it as the reasonable man would have. Whether
particular fact is proved or disproved depends upon the discretion of the Court
that is to be decided on the base of the belief of the court or probability or
when the court in its opinion considers its existence so probable that a
prudent man ought to act upon the supposition that it exists.[50]It
is submitted that by analyzing the judgment of Court it can be concluded that
this doctrine proof beyond the reasonable doubt is more or less depends upon
the wisdom of court and as such there is no fixed criteria for this doctrine,
its interpretation has to be gathered and varies from cases to case. For
example Court me require a higher degree of proof in murder, matrimonial
affairs because the result of these offences may lead the person to live in
prison throughout the life or even they may lose their life. Therefore it would
be apt to say on the basis of authorities mentioned that the higher the degree
of offence the higher the standard of proof is required. Absolute certainty is
not the criteria for the court to judge the standard.
DOUBT WHEN CAN BE REASONABLE
At this juncture it
becomes very imperative to know and understand what exactly the doubt means and
its implication when it can be reasonable. Under this project everything is
linked with the legal perspective than we need to get the opinion and judgments
of Honorable Courts in germane to Doubt. There are many cases where the court
has defined this term and indicated when doubt can be reasonable. The project
more or less based upon the doctrine of “Proof beyond the reasonable Doubt” and
this term itself uses the phrase Doubt so without understanding the meaning of
Doubt it would be vague to move forward.
In the case
Mallappa Siddappaalakanur vs. state of karnatake[51]
court observed that “A doubt by the criminal Court should not be that of
doubting Thomos, it should be tangible and real doubt. A doubt regarding the
veracity of the evidence of the witness should be a reasonable doubt and the
evidence cannot be simply brushed aside on minor aspects.”[52]
This is in
reference to doubt that what required to term as the reasonable doubt, it says
it should be real and tangible. It means court doesn’t reflect to vague and
unreasonable doubt. In a case where there was a claim raised by the witness of
his presence at the place of occurrence when police arrived but not recording
his statement that day makes the presence of witness to be doubtful.[53]
It is a well
settled principle of criminal law that the benefit of the doubt goes to in
favor of accused. In a case of Basavaraj v. State of Maharashtra[54]
where the name of co-accused was not recorded in the FIR but he was arrested by
the police on account of furnishing information from the main accused and the
identity of the co-accused was not consistent to the eye witness. Therefore in
this case court passed the order to release the co-accused and he was entitled
to benefit of doubt and set his conviction aside.
Doubt can be called
reasonable if they are free from a zest for abstract speculation. Law cannot
afford any favourite other than truth. In order to constitute the reasonable
doubt it must be free from an over emotional response. If the doubt is based on
imagination, or of a trivial character and mere possibility cannot be termed as
reasonable doubt, rather it would be based on reasons and commonsense. It is
required to grow with the evidences presented in the case. It must be of
reasonable man or by the stand adopted by the reasonable man.[55]
For a doubt to be a reasonable it must arise from the evidence or lack of
evidences before the court. All doubt based on trivial and fancicul notions
cannot be termed as reasonable doubt.[56]
In State of M.P. vs
Chamaru[57]
where four people were entitled to death while they were sleeping and two
children was severally injured. Court said that evidence so produced must prove
the doubt beyond all the reasonable doubt that the accused is the author of the
crime. But in this case this standard was not being followed by the prosecution
because they failed to prove beyond the reasonable doubt on the basis of the
evidences given by the children; they could not establish the identity of the
accused. Therefore doubt has to be reasonable and fair in nature because in
criminal matter person’s life is on the stake.
Therefore on light
of the above authorities mentioned it can be concluded that the reasonable
doubt is simply that degree of doubt which would permit a reasonable man and
just man to come to a definite conclusion
rules of proof in criminal cases
For the purpose of
this project it becomes very important to know what the possible rules of Proof
in criminal cases are. Court when dealing with the serious, grave question of
the guilt of innocence of the persons charged with the offence, some rules must
be kept in mind prescribed by the tribunals.
·
The onus to prove everything essential to
establish the guilt of accused lies on the prosecutor in criminal cases;
·
The evidence must be such as to exclude to a
moral certainty every reasonable doubt of the guilt of the accused;
·
In matters of doubt it is safer to acquit
than to condemn; for it is better than several guilty persons should escape
than that one innocent person suffer;
·
There must be clear and unequivocal proof of
the corpus delicti;
·
The hypothesis of delinquency
should be consistent with all the facts proved;
ANALYSIS
It has been already
pointed out in this project that in criminal matters we need to adhere to the
standard of proof beyond the reasonable doubt but this standard in the authors
opinion is not the absolute in nature. This standard pointed out by the courts
around 30-40 years back but now the situations are changing day by day crimes
are increasing, terrorism is increasing so there is need to reform this
standard. Sometimes it becomes very difficult for the prosecution to stick to
this standard. If prosecution is not able to prove this standard doesn’t mean
that culprit should be acquitted, although our system believe in the
fundamental principle of common law that many culprits can go away but one
innocent should not be punished. Justice lies in both safeguarding the innocent
as well as punishing the culprit.
In the case of
Inder Singh v A[59]court
had raised some doubt in respect to viability of this doctrine and said that it
is not necessary that proof beyond the reasonable doubt should be perfect in
all the cases. The same standard of proof as in civil cases applies to proof of
incidental issues involved in criminal trials like the cancellation of bail
which can be established by the prosecution by showing on a preponderance of
probabilities that the accused has attempted to temper with its witness.It
might be essential requirement that prosecution has to prove his case beyond
the reasonable doubt but it is not necessary that it should be perfect. Proof
beyond the reasonable doubt is a guideline, not a fetish and a guilty man
cannot go away with it because truth suffers some infirmity when projected
through human process, and just because of minor contradiction whole case
cannot be referred as untrue.[60]
In the author’s opinion
we need to switch to the France inquisitorial Justice System where onus of
proving beyond the reasonable doubt doesn’t lay on the prosecution rather it is
upon the accused to prove himself innocent. The idea of proof beyond the
reasonable doubt was inherit by the judiciary on the basis of Article 20 (3) of
Indian Constitution.[61]
The relevancy of the above principle was pretty good where the serious crimes
and terrorism were negligible but now the time has changed, terrorism supported
by enemy countries have taken place to the root of our nation. Therefore time
has come where judiciary is required to look over the matter as well as
legislature to reform the criminal justice system.
CONCLUSION
In light of the
circumstances there is an exigency to provide the clear and smooth procedure
that would not allow an easy escape of the guilty person. In Shivajivs the
State of Maharashtra[62]
Court opinion regarding to the principle that several persons can be escape to
have punishment but innocent should not be suffer at all was expressed by
Justice Krishna Iyer who had a critical view point over this principle. He
elaborated that Justice is simply not meant to protect the innocent but also to
convict the offender.
He further
articulated the outlook that public accountability is one of the most vital
& significant responsibilities of the judiciary and if the accused person
is to go away on the basic of every doubt and suspicion then the judicial structure
will come lose its reliability &credibility before the community. This is
true that, proof beyond reasonable doubt clearly enforces a heavy
responsibility on the investigation agencies to anticipate every possible and
probable defense of the accused and rebut it. Beyond reasonable doubt virtually
becomes proof beyond doubt. Lord Denning observed in a very famous case[63]
that the “reasonableness of doubt must be commensurate with the nature of
the offence to be investigated. Exaggerated devotion to the rule of benefit of
doubt must not nurture fanciful doubts……… Letting guilty escape is not doing
justice according to the law”.
[2] MatteoRizzolli and MargheritaSaraceno, “Better that X guilty person’s escape than that one innocent suffer” University
of Milano-Bicocca Press, June 16, 2009.
[3] Byron M. Sheldrick, “Shifting
Burdens and Required Inferences: The Constitutionality of Reverse Onus Clauses”,
44(2) U. torontofAc.l. rev. 179, 180 (1986).
[5]“That burden
of proof lies on the person who first asserts the fact, and not on the one who
denies that fact to be true. The responsibility of the defendant to prove a
fact to be true would start only when the authenticity of the fact is proved by
the plaintiff.”
[7] The Indian Evidence Act, 1872, §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 (45 of 1860) 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”.
[8] David Hamer, “The Presumption of
Innocence and Reverse Burdens: A Balancing Act”, Cambridge Law Journal, Vol. 66, No. 1, p. 142, 2007.
[10] Pooja Garg, “Shifting trends in
Burden of Proof & Standard of proof: an analysis of the Malimath Committee
report”,Manupatra.
available at:
http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9
[11] Prasannjeet S. Baghel, Pratik P. Chaudhary, Praveen Kumar “Proof Beyond Reasonable Doubts”, KIIT
Law Journal.
Available at:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1922144.
[12]Prasannjeet S. Baghel, Pratik P. Chaudhary, Praveen Kumar “Proof Beyond Reasonable Doubts”,Kiit
Law Journal.
Available
at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1922144
[13] M. Monir, “Textbook on Evidence
Law”,Universal Publishing House, 2005.
[14] Dorothy K. Kagehiro and W. Clark
Stanton, “Legal vs. Quantified
Definitions of Standards of Proof”, Springer, Law and Human Behavior,Jstor Vol. 9, No. 2 (Jun.,1985), pp.
159-178. Available at:
http://www.jstor.org/stable/1393751.
[15]PoojaGarg, “Shifting trends in
Burden of Proof & Standard of proof: an analysis of the Malimath Committee
report”, Manupatra. available at:
http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-A2E693F4B5EE.pdf
[16]PoojaGarg, “Shifting trends in
Burden of Proof & Standard of proof: an analysis of the Malimath Committee
report”, Manupatra. available at:
http://www.manupatra.co.in/newsline/articles/Upload/33C9F78E-CCA3-454E-82D9-A2E693F4B5EE.pdf
[17]R.V.E.
venkatachalaGounderArulmiguViswesaraswami v. V.P. Temple, AIR 2003 SC
4548 : (2003) 8 SCC
752.
[19] “The accused during a
criminal prosecution has at stake interests of immense importance, both because
of the possibility that he may lose his liberty upon conviction and because of
the certainty that he would be stigmatised by the conviction . . . Moreover use
of the reasonable doubt standard is indispensable to command the respect and
confidence of the community. It is critical that the moral force of the
criminal law not be diluted by a standard of proof that leaves people in doubt
whether innocent men are being condemned.”
[20] In Re Winship, 397 US 358 (1970), at pp. 361–64. See also the more
recent elaboration of the rationale of the principle in R v. Oakes 26 D.L.R.
(4th) 200 (1987), at pp. 212–214.
[21] Zuckerman, “The Burden Of Proof
In Criminal Justice”, the Singapore Academy of Law Journal,
Part II, PN 267.
[22]R. v. Lifchus, 1997 3 SCR 320.
[23] R v. Oakes 26 D.L.R. (4th) 200 (1987), at pp. 212–214.
[24] Zuckerman, “The Burden Of Proof
In Criminal Justice”, the Singapore Academy of Law Journal, Part II, PN
267.
[26] Thomas Christopher Rider, “What
is the Most Useful Standard of Proof in Criminal Law?”, Pragmatism Tomorrow 2013, Issue 1: No. 9.
Available
at: http://www.pragmatismtomorrow.org/downloads/Essay009-RiderTC.pdf
available
at: http://www.pragmatismtomorrow.org/downloads/Essay009-RiderTC.pdf
[28] Thomas Christopher Rider, “What
is the Most Useful Standard of Proof in Criminal Law?”
available
at: http://www.pragmatismtomorrow.org/downloads/Essay009-RiderTC.pdf.
[36]Herein after referred as HOL.
[39]“Just as in civil cases the balance of
probabilities may be more readily fitted in one case than in another, so in
criminal cases Proof beyond the reasonable doubt may more readily attend in
some cases than others.”
[43]Rawalpentavenkalm and
Anr.v. State of Hyderabad, AIR 1956 SC171.
[48]SudiptoSarkar, VR Manohar , “Law
Of Evidence” Lexis Nexis , 17th edition 2010.
[58]Nemai v S, A 1965 SC 89.
[61] See Article 20 of the INDIAN CONSTITUTION.