Fairness to the Accused

Article for Blog Post Writing Competition 2011 | by Pankaj Sevta and A. Upadhyay

May 7th, 20115:04 pm

Criminal justice system gives  an  important position to the fairness to the accused. . 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.  Fairness to accused as become a fundamental assumptions in our criminal justice system. The state imposes the duty on the prosecution to prove beyond reasonable doubt, through one of the common law doctrines i.e. burden of proof. (Dayabhai chagganbhai vs. State of Gujarat, AIR 1964 SC 1563). The burden is strong one and it remains on the prosecution, though the onus might shift provisionally. The burden on the defendant is to create doubt based on preponderance of possibilities. In other words the Criminal justice  system inculcates that 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.

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

Presumption is defined as “A legal inference or a assumption that a fact exists, based on the known or proven existence of some other facts or groups of fact” ( Black’s  Law Dictionary 1304 (Bryan A Garner, 9th Ed.,2009).  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 irrebuttable; 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 irrebuttable 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  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 ). Another disputed are of operation lies between as regards evidence given by an accomplice. Whereas illustration (b) to section 114 lays down the rule of prudence, and states that an accused is unworthy of credit unless corroborated in material particulars, section 133 laying down a rule of law , states that a conviction is not illegal merely because it is based on the uncorroborated testimony of the accused. The rule laid down by section 133 vitiates all notion of ‘fairness’ to accused by relying on the uncorroborated testimony of a proven deserter. Justice Krishna Iyer the made the following statement  in perhaps most succinctly justifies the drawing of presumptions by the Court while maintaining fairness to the accused:

Presumption made under sec. 113A i.e. presumption as to abatement of suicide by married women and 113B i.e. presumption as to dowry death comes into affect when cruelity, dowry demand etc. have been proved against the husband or relative of husband.  Presumption made under sec. 113A, 113B, 114A serve large public policy with objective of making the society a better place.   In certain cases , these provisions  might turn out to be the excesses, but largely,  they are made only in the case of existence of certain circumstances, and more or less, aren’t ‘unfair’ for the accused.

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. Section 25 of Indian evidence states that no confession made to a police officer, shall be proved as against a person accused of any offence. In other words it protects the  accused from the power and cruelty of police.  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. )

Section 52 to 55 of Indian evidence Act talks about relevancy of character of accused. Section 53 states in  criminal proceedings the fact that the person accused is of good character, is relevant. Section 54 states in criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant. In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.  Thus sections it could be inferred  that all these sections provide fairness to the accused and help in delivering justice.

Now apart from fairness to accused with the diversification  of crimes, and a step rise in the number of crime against body and property alike, the strict burden of proof on the prosecution has become a death knell for law enforcement officials. Faced with limited resources and a ever growing pool of crimes, our institutions are crumbling and even after procuring clinching evidence, the prosecution finds it difficult to prove beyond reasonable doubt. The possibility of  doubt is  always there. So to maintain equity , a balance needs to be stuck down. The recommendation of the Malimath Committee (Report of the committee on reforms of Criminal Justice System, Vol. 1, p.65 (Govt. of India, Ministry of home affairs,2003) on reforms of criminal justice system lays emphasis  toward fining such a balance. As suggested by them, laws should be amended to provide for audio and video recording of confessions, dying declarations and statement of witnesses etc. so in order to see that they do not go back on their own statement and cause unnecessary delays to deliver justice and as well as such amendments will help to give more fairness to the accused. As it is recommended  by the committee all officer and judges should be involved in search of truth therefore search should be for truth and justice along with fairness to the accused.


Article By-

Pankaj Sevta

Student,National Law University, Orissa


A. Upadhyay

Student, Dr.Ram Manohar Lohiya National Law University, Lucknow

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



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