Fairness to the Accused with respect to the Indian Evidence Act, 1872

Article for Blog Post Writing Competition 2011 | by Gaurav Ghosh

April 17th, 20111:17 pm

The Adversarial System is a fundamental principle of Criminal Jurisprudence. It is based on the precinct that through a process of fair hearing and adducing of evidence, the truth of the matter will eventually emerge. It inculcates that the accused should be presumed innocent until proved otherwise and for this the burden of proof should always be on the prosecution, the standard of such proof being not mere preponderance of possibilities but proof beyond reasonable doubt.

As such, the Indian Evidence Act includes certain provisions which uphold the adversarial principles and grant certain protections to the accused in its endeavour to make the criminal justice system reasonably fair to the accused.

Section 4 of the Act talks about presumptions of fact and such presumptions may well be against the accused, making this provision stand in contradiction adversarial principles to a certain extent. However, facts which the Court ‘may presume’ at its discretion, as well as facts which it ‘shall presume’ according to specific provisions of the Act, are rebuttable; and evidence may be produced to disprove them, thereby granting an aspect of fairness to the accused which overrides these seemingly inquisitorial provisions. Moreover, such presumptions are based on natural logical inferences and per se, are not unfair.[ Gitika Bagechi v. Shubhobrata Bagechi, AIR 1996 Cal 246. ]

‘Conclusive proof’, as mentioned under this Section is ir-rebuttable; however, the aspect of fairness to the accused is maintained since nothing can be ‘conclusive proof’ of anything unless that primary fact is prima facie ‘proved’; and hence the element of ir-rebuttable presumption is of a secondary nature.

The only exception to this rule regarding ‘conclusive proof’ is in Section 112, which talks of the legitimacy of children.

In Section 114, broad discretion is given to the Court to “presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of of natural events, human conduct, and public and private business, in their relation to the facts of a particular case.”

In this context, the principle of ‘fairness to the accused’ seems to be set on volatile bases, as such a wide and pervasive allowance to make any presumption of fact may leave the accused at the mercy of the judge, and not justice. However, the effect of this provision is to clarify that Courts of Justice are to use their own common sense and experience while considering facts. The nine illustrations to Sec. 114 are mainly ‘presumptions of law’. The main difference between presumptions of law and those of fact is that the former applies to a class for which conditions are fixed and uniform; whereas the latter applies to individual cases, the conditions of which are fluctuating. Additionally, presumptions are not evidence or proof, they only go on to show on whom the burden of proof lies. [ Sodhi Transport Corporation v. State of U.P., AIR 1986 SC 1099. ]

The following statement made by Justice Krishna Iyer in Krishna Lal v. State of Haryana [ AIR 1980 SC 1252 ] perhaps most succinctly justifies the drwing of presumptions by the Court while maintaining fairness to the accused: “To forsake vital considerations…is to sacrifice common sense in favour of an artificial concoction called judicial probability. A socially sensitized judge is a better statutory armour…than long clauses of a complex section.”

In Section 24, the accused’s right to silence and to not be a witness in the case against him is upheld by making confessions inadmissible as evidence in Court if they were obtained through “inducement, threat or promise” or referred to the specific charge against the accused, proceeded from a person in authority or if in the opinion of the Court, was made through an induced belief that the confession would be advantageous for the accused in the case against him. Hence, to maintain fairness to the accused, confessions obtained through force or deceit are completely ruled out as evidence based on which the accused may be convicted. Furthermore, the confession of a co-accused which criminates the accused may not be treated as substantive evidence against him. [ Balbir Singh v. State of Orissa, 1995 Cr L J 1762 (Ori) ]


Article by-

Gaurav Ghosh

2nd Year student at National Law University, Orissa

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

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