Reverse Burden of Proof on Accused in Criminal Trials: Is there scope for a challenge to Section 30(2) of the Protection of Children from Sexual Offences Act, 2012? – By Satyam Thareja

The golden rule for criminal jurisprudence is that accused is presumed to be innocent unless proven guilty for the charged offence. The accuser / prosecution has to discharge the “burden of proof” beyond reasonable doubt to establish the guilt of the accused whereas an accused has to discharge the “burden of proof” on preponderance of probabilities to create reasonable doubt. This emanates from the above-stated golden rule, which in corollary implies that a reasonable doubt benefits the accused.

The phrase “burden of proof” refers to the obligation of accuser / prosecution or accused to establish facts material for the case in particular. The “burden of proof”, whether discharged or not depends on multitude of facts brought to the notice of the Court. These facts may be held to be “proved”, “not proved” or “disproved”. The test to judge if a fact has been “proved”, “not proved” or “disproved” is that of a prudent man. It has to be assumed by a Court from the point of view of a hypothetical prudent man, if a particular fact brought to the notice of the Court is so probable that it must have happened or may / may not have happened or could not have happened. It is from this point of view that a Court has to state if a particular fact is “proved” i.e. it must have happened, or “not proved” i.e. may / may not have happened or “disproved” i.e. could not have happened.

An exception has been made to this general rule by way of statutes providing for statutory presumptions. The Supreme Court of India has been presented with several challenges qua provisions in several statutes which provide for presumptions to be drawn against accused persons, which are covered by judgments rendered in VD Jhangan v. State of UP [1], Veeraswami v. Union of India [2], PN Krishna Lal v. Govt. of Kerala [3] & Kusum Exports v. Sharma Carpets [4] wherein it has been observed that the statutory presumptions are constitutional with a caveat that, at first, the accuser / prosecution has to establish existence of all foundational facts on preponderance of probabilities.  

The jurisprudence qua the “burden of proof” on accused emanates from Sections 101 to 106 of the Indian Evidence Act, 1872 (hereinafter referred to as “IEA”). This jurisprudence, predominantly, as it emerged during research, evolved qua Section 105 of IEA which is reiterated herein below:-

Section 105 IEA

“Burden of proving that cause 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. …”

This section was discussed by Rangoon High Court in its judgment in King Emperor v. U Damapala [5] (Rangoon High Court) wherein it was observed that,

“There has been in some quarters much confusion as to the meaning of the words “the burden of proof”. In criminal cases the burden of proof, using the phrase in its strictest sense, is always upon the prosecution and never shifts whatever the evidence may be during the progress of the case: if on a review of all the evidence the prosecution has failed to establish the guilt of the accused beyond reasonable doubt, he is entitled to be acquitted. ….

Now, it is not for the prosecution to examine all the possible defences which might be put forward on behalf of an accused person and to prove that none of them applies….

…the test is not whether the accused has proved beyond all reasonable doubt that he comes within any exception to the Indian Penal Code, but whether in setting up his defence he has established a reasonable doubt in the case for the prosecution and has thereby earned his right to an acquittal.”

This judgment placed reliance on the judgment of House of Lords rendered in Woolmington v. Director of Public Prosecutions [6], in which it was observed that, 

“.. Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must “satisfy” the jury. This is the law as laid down in the Court of Criminal Appeal in Rex v. Davies (2), the headnote of which correctly states that where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.”

Subsequently, a bench of seven judges of Allahabad High Court in Emperor v. Parbhoo [7], dealt with the question that,

“Whether having regard to Section 96 of the Indian Penal Code and Section 105 of the Indian Evidence Act, in a case in which any general exception in the Indian Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the court whether the accused person is or is not entitled to the benefit of the said exception?”

This question was answered in affirmative by a majority of 4:3, the excerpts of opinions expressed in this judgment are reiterated below:-

by Majority (Iqbal Ahmed C.J.)

“.. The question referred formed the subject of consideration by a Full Bench of the Rangoon High Court in King – Emperor v. U Damapala (1) and it was held that even if the evidence adduced by the accused fails to prove the existence of circumstances bringing the case within the exception pleaded, the accused is entitled to be acquitted if, upon a consideration of the evidence both for the prosecution and the defence, the court is left in a state of reasonable doubt as to whether the accused persons is or is not entitled to the benefit of the exception pleaded. The Full Bench followed the recent English case in the House of Lords of Woolmington v. Director of Public Prosecutions (1) and held that that decision was in no way inconsistent with the law in British India and the principles laid down in that decision formed a valuable guide to the correct interpretation of section 105 of the Indian Evidence Act. ….

…..

To my mind the concluding portion of section 105 means no more than this, that in considering the evidence for the defence relating to an “exception” or “proviso” pleaded by the accused the court must start with the assumption that circumstances bringing the case within the “exception” or “proviso” do not exist. It must then decide whether the burden of proof has or has not been discharged by the accused. If it answers the question in the affirmative it must give effect to its conclusion by acquitting the accused or punishing him for the lesser offence. If, on the other hand, it holds that the burden has not been discharged, it cannot from that conclusion jump to the further conclusion that the existence of circumstances bringing the case within the exception or proviso has been disproved. All that it can do in such a case is to hold that those circumstances are “not proved”. It would be noted that section 3 draws a distinction between the words “proved”, “disproved” and “not proved”. It enacts that “a fact is said not to be proved when it is neither proved nor disproved”. The burden of bringing his case within an “exception” or “proviso” is put on the accused by section 105, but there is no provision in the Act to justify the conclusion that the failure to discharge that burden is tantamount to disproof of the existence of circumstances bringing the case withing the “exception” or “proviso” pleaded.

……

My answer to the question referred, therefore, is that the accused person is entitled to be acquitted, if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the court whether the accused person is or is not entitled to the benefit of the said exception. …”

by Minority (Allsop J.)

“… This reference has arisen out of the decision of the Rangoon High Court in King – Emperor v. U Damapala (I), which was based in part upon the decision of the House of Lords in Woolmington’s case (2), The Rangoon High Court seems to have held that the provisions of section 105 of the Indian Evidence Act meant only that the accused was bound to produce some evidence and that, after the production of the evidence, if the court remained in doubt, it would hold that the accused had not proved that he acted on self defence, but would still go back to the original burden upon the prosecution and hold that prosecution had failed to prove that the accused had not acted in exercise of the right of private defence and would, therefore, give the accused the benefit of the doubt. With the greatest deference to the learned Judges who decided that case it seems to me that they have laid down a proposition which would imply that a court in the same proceeding could record two contradictory findings upon a fact in issue in that proceeding. ……………..

For the reasons which I have given, my answer to the question would be that an accused person is not entitled to the benefit of any exception merely because there is a reasonable doubt in the mind of the court about the existence of circumstances bringing the case within the exception. As I have already explained, I think that the meaning of the sections of the Indian Evidence Act is that every issue of fact has to be proved by one or other party, the burden of proof being laid on that party, and that the non-production of evidence or production of insufficient evidence by that party would lead the court to decide the issue of fact against him. In my judgment there is a distinction between proof and the mere adduction of evidence. I do not think that it is justifiable to hold that the burden of proof is on one party until he adduces evidence and then shifts to the other party. I think each issue must be decided at the conclusion of the proceedings once and for all. If the court says that the burden of proving the absence of circumstances which would justify the accused in pleading the protection of a general exception is upon the prosecution, then in the absence of any evidence one way or the other or any pleading on the part of the accused, the prosecution would fail and the accused would be entitled to an acquittal – a result which I consider would in many cases lead to a grave failure of justice. I do not think it is possible, under the provisions of the Indian Evidence Act to hold that the prosecution, in the absence of evidence of circumstances which would entitle the accused to an acquittal on the ground that he was protected by a general exception, would be entitled to get him convicted and that, on the other hand, the production of inconclusive evidence by the defence would mean that he was entitled to an acquittal because the production of that evidence would throw the burden on the other side.”

The judgment rendered in Emperor v. Parbhoo (Supra) was later upheld by a bench of nine judges of Allahabad High Court in Rishi Kesh Singh & Others v. State [8] with minority only giving partial modification to the statement of law laid down in Emperor v. Parbhoo (Supra). These judgments govern the statement of law on “burden of proof” on accused, which provides that the Court has to test if the prosecution discharged its “burden of proof” beyond reasonable doubt, irrespective if a material fact introduced by accused was “proved” or “not proved” the fact on preponderance of probability.

The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”) defines offences under Sections 3 (penetrative sexual assault), 5 (aggravated penetrative sexual assault), 7 (sexual assault), 9 (aggravated sexual assault) & 11 (sexual harassment). Further, POCSO provides for presumption to be drawn against an accused, thereby mandating reverse burden of proof on accused, under Sections 29 & 30 of POCSO. These provisions are reiterated herein below:-

Section 29 POCSO

“Presumption as to certain offences. – Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

Section 30 POCSO

“Presumption of culpable mental state. – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he has no such mental state with respect to the act charged as an offence in that prosecution.

(2) for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation. – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.”

A reading of the above-reiterated two provisions reveals that Section 30 of POCSO, additionally, provides for presumption against the mental state of accused and puts further additional “burden of proof” on accused to establish beyond reasonable doubt a fact which dislodges the presumption against mental state of accused.

The above-stated provisions of POCSO are pari materia with Sections 54 & 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPSA”). A challenge was put to validity of provisions of Sections 54 & 35 of NDPSA which was taken to Supreme Court of India in Noor Aga v. State of Punjab [9] in which matter, qua Section 35, it was observed that,

“58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regards to the culpable mental state on the part of the accused as also place the burden of proof in this behalf on the accused; but a bare perusal of the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigors of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.”

However, the judgment in Noor Aga (Supra) does not discuss the implication of putting an additional “burden of proof” on accused i.e. to dislodge the presumption against mental state of accused by proving a fact beyond reasonable doubt.

The judgment rendered in Noor Aga (Supra) is sub-silentio of statement of law rendered in Emperor v. Parbhoo (Supra) and Rishi Kesh Singh & Others v. State (Supra). Despite that, the judgment rendered in Noor Aga (Supra) is identified as the basis for rejecting the challenge to Sections 29 & 30 of POCSO as can be observed from the judgments rendered in In re Secretary to the Government of India Ministry of Law and Justice and Ors [10] by the Gauhati High Court and in David v. State of Kerala [11] by the Kerala High Court. The judgment rendered in David (Supra) was, subsequently, discussed by the Kerala High Court in Justin v. Union of India[12] in which it was observed that –

“65. …. The presumptive provision with reserve burden of proof, does not sanction conviction on basis of preponderance of probability. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. To hold that, the right of the accused to a fair trial could not be whittled down under the Act, Supreme Court relied on the decision in Noor Aga’s case (supra). In the above case, on facts, Supreme Court found that prosecution failed to establish the foundation facts beyond all reasonable doubt and consequently, the accused was acquitted. …..

…..

67.       …      In David v. State of Kerala ((2020) 5 KLT 92), learned Single Judge of this Court had occasion to consider the scope of presumption and the duty of the prosecution, to establish the foundational facts. It was held that the standard proof of innocence that is expected from the accused in a case under the POCSO Act was only on the touchstone of preponderance of probability. Section 30 of POCSO clarifies that the culpable state of mind on the part of accused was to be proved by the accused beyond reasonable doubt and not merely on the preponderance of probability, such requirement was absent in section 29 of the POCSO Act …….”

In this view, the dictum of the superior Courts in India qua Section 30(2) of POCSO is also sub-silentio of statement of law rendered in Emperor v. Parbhoo (Supra) and Rishi Kesh Singh & Others v. State (Supra). Therefore, Section 30(2) of POCSO is liable to be challenged to be declared ultra vires as it disables the accused from arguing that prosecution has failed to discharge its “burden of proof” beyond reasonable doubt on basis of fact(s) which is / are introduced by accused but “not proved” beyond reasonable doubt.

****

The author is a post-graduate of Indian Law Institute, New Delhi (2015) & graduate of National Law University, Jodhpur (2012), practicing as an independent legal professional in Delhi. He is also an Advocate-on-Record at the Supreme Court of India.

[1] (1966) 3 SCR 736

[2] (1991) 3 SCC 655

[3] 1995 Supp (2) SCC 187

[4] (2009) 2 SCC 513

[5] ILR 1936 (14) 666

[6] (1935) AC 462

[7] ILR (1941) All 843

[8] AIR 1970 All 51 (FB)

[9] (2008) 16 SCC 417

[10] (2017) 3 Gauhati Law Reports 50

[11] 2020 Cri LJ 3995

[12] W.P. (C) No. 15564 of 2017 before Kerala High Court (Ernakulum Bench) decided on 07.10.2020

Disclaimer: The views or opinions expressed are solely of the author.