Report No. 69
IV. Quantum of Proof
46.19. Quantum of proof.-
So much as regards proof of the defence of insanity. As to the question of quantum of proof in general under section 105, an acute controversy as to the interpretation and application of the section arose in the past. Several alternative approaches are found in the judicial decisions.
46.20. The precise question that deserves to be considered is whether section 105 requires-
(a) proof beyond reasonable doubt, or
(b) preponderance of evidence (as in a civil case), or
(c) evidence which just creates a reasonable doubt that the accused might not have been guilty-the doubt being created as to the mental element of the offence1, or
(d) evidence creating a reasonable doubt as to whether the accused is guilty in law-the doubt being as to the absence of circumstances which bring into play one of the general or special exceptions to criminal liability.
Of course, the decisions do not make any such analysis as is presented above. But it seems desirable so to formulate the queries, for a proper discussion of the question.
1. See discussion in Rishikesh Singh v. State, AIR 1970 All 51 (9 Judges).
46.21. Bombay view.-
The Bombay view on the subject was that the accused must prove the applicability of the exception in the same manner as the prosecution has to prove its case. This was the view taken by a special Bench of the Bombay High Court,1 in a case where private defence was pleaded. The court held, that if the Act which is basis of the charge is established (beyond reasonable doubt), then in the same way it was for the accused to prove the existence of circumstances bringing his case within the limits of the right of private defence; and 'proof' must mean the same thing in either case. According to this view, there is no difference between the quality of 'proof' that has to be adduced by the prosecution or by the accused. The prosecution has to prove the offence, but the accused must prove the exception and the weight of the burden does not differ in the two cases.
1. Government of Bombay v. Sakur, AIR 1947 Born 38 (FB).
46.22. It was held by the Bombay High Court,1 that the standard of proof of the prosecution and the accused must be the same and on this reasoning, the accused has to bear a strict burden of proof under section 105. This view must now be taken as impliedly overruled by the decisions of the Supreme Court2, to which we shall refer later.
1. Government of Bombay v. Sakur, AIR 1947 Born 38 (40, 41) (FB).
2. See Supreme Court cases, infra.
46.23. Most of the other High Courts, however, took a different view-view (b)-and in substance, followed the English case of Reg. v. Carr Briant, (1943) 2 All ER 156 (CCA). According to that case-(a) the law presumes innocence of the accused unless the contrary is proved, and the jury should be directed, (b) that the burden on the accused is less than that required at the hand of the prosecution in proving the case beyond reasonable doubt, and (c) that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.
View (b) is taken also by some Judges of the Allahabad High Court.1
1. Parbhoo v. Emperor, AIR 1941 All 402 (FB) particularly Mulla, J.'s judgment, which was elaborately discussed by Beg., J. in Rishikesh Singh v. State, AIR 1970 All 51.
46.24. Distinction.-
According to view (b), there is a distinction between the degree of certainty required in cases where the burden is on the prosecution and the degree of certainty required in cases where the burden is on the accused. The decisions cited below1 took this view. One of the Lahore cases2 showed some uncertainty as to whether the burden on the accused is to be established by preponderance or whether he has merely to make out a prima facie case. It should not, of course, be assumed that view (b) and view (c) are necessarily inconsistent with each other.
1. (a) Parbhoo v. Emperor, AIR 1941 All 402 (Some Judges).
(b) Yousuf v. State, AIR 1954 Cal 258;
(c) Kamla Singh v. State, AIR 1955 Pat 209 (213);
(d) Sarwan Singh v. State, AIR 1954 Pepsu 160.
2. Emperor v. Mazaffar Hussain, AIR 1944 Lah 97 (101).
46.25. View (c) is represented by the majority decision in Parbhoo v. Emperor, AIR 1941 All 402 (FB). According to this view, the accused is entitled to be acquitted if, upon a consideration of the evidence as a whole (including the evidence in support of the plea of general exceptions), a reasonable doubt is created in the mind of the court about the guilt of the accused. This view was accepted by some Judges (including Beg J.) in a later Allahabad case,1 and reiterated by Beg J. sitting as a Judge of the Supreme Court in the recent case of Partap v. State, AIR 1976 SC 966 (May), infra.
1. Rishikesh Singh v. State, AIR 1970 All 51, paras. 93 (126, 162, 176), (Broome, Mathur, B.D. Gupta, M.H. Beg, Gyanendra Kumar and Yashoda Nandan, JJ.).
46.26. View (d) is represented by the view of some Judges1 of the Allahabad High Court. Where any general exception is pleaded, and the evidence adduced to support the plea fails to satisfy the court affirmatively that the accused has fully established his plea, then, according to this view, the accused is still entitled to an acquittal if, upon a consideration of the evidence as a whole, a reasonable consequential doubt is created in the mind of the court as to whether the accused is really guilty of the offence of which he is charged. This view also concentrates on the proof of the ingredients of the offence as such, but it takes care to add that cases under sections 80 and 84 of the Indian Penal Code (accident and insanity respectively), fall within it, since they affect the intention of the person who committed the alleged act
1. Rishikesh Singh v. State, AIR 1970 All 51 (99, 102), paras. 169 and 176 (Gyanendra Kumar and Yashoda Nandan,
46.27. Illustrative Allahabad case.-
A case which came up before the Allahabad High Court illustrates the range of the controversy. In R.S. Pandey v. State, 1971 All 14 1005, the accused R.S. Pandey, along with another person, was prosecuted under sections 499-500, I.P.C. on the allegation that he had written and got printed a pamphlet containing defamatory statements about Dr. A.K. Sanyal, District Medical officer, Kanpur. The defence of the accused was that the allegations were true and that it was for the public good that the imputations were made and published. He also pleaded that the opinions expressed by him were in good faith, and could not be regarded as defamatory within the meaning of section 499, I.P.C. In substance, he relied on Exceptions first, second, eighth and ninth to that section. The accused was convicted by the trial Court, but the High Court, on appeal filed by the accused, acquitted him along with his co-accused.
46.28. Dealing with the question regarding the 'burden of proof' when the case came within the exceptions of section 499, I.P.C. (defamation), the High Court held as under:-
"The error in which the trial court fell was that it expected a much higher degree of proof from the accused for bringing the case within the exceptions contained in section 499, I.P.C. than the law required."
The High Court further observed as follows:-
"What section 105 of the Indian Evidence Act requires is that the accused should introduce such evidence as may displace the presumption of the absence of circumstances for bringing his case within an exception and may thereby satisfy the court that such circumstances may have existed. As held in the case of Rishikesh Singh v: State, 1969 All LJ 657: AIR 1970 All 51 (supra)., an accused person is entitled to be acquitted if, upon a consideration of the evidence (as a whole) including the pleas given in support of a general exception, a reasonable doubt is created about guilt of accused."
46.29. Supreme Court cases as to insanity.-
We may now turn to the decisions of the Supreme Court as regards the quantum of proof. Dahyabhai1 was concerned with insanity. The Supreme Court observed in that case:-
"The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:-
The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that (fact) always rests on the prosecution from the beginning to end of the trial. There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by section 84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial; but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings.
Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the Court by the accused or by the prosecution may raise a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence, including (the) mens rea of the accused and in that case the Court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."
1. Dahyabhai v. State of Gujarat, AIR 1964 SC 1563: (1964) 7 SCR 361 (Subba Rao, Das Gupta & R. Dayal, JJ.).
46.30. This passage was referred to in a judgment1 of the Supreme Court delivered in 1965, and it was made clear that it does not mean that the prosecution must, contrary to what is expressly provided in section 105, establish sanity. In that case, counsel for the accused appellant argued that mens rea being an essential ingredient of the offences charged (murder, attempt to murder, and grievous hurt), the conviction of the accused could not be sustained, as no intention to cause death or injury could possibly be attributed to an insane person. The Supreme Court held that-(i) intention can be presumed from the circumstances, and (ii) the facts of the case gave no proof of insanity. In giving this finding, the Supreme Court also made the above clarification.
1. Bhikari v. State, AIR 1966 SC 1: (1965) 3 SCR 194 (198) (per Mudholkar, J.).
46.31. Supreme Court case as to self-defence.-
Then, there is a recent decision of the Supreme Court,1 where the question of the quantum of proof required to prove self-defence was considered. It was clearly laid down that the standard of proof required on the part of the accused was not as high as that required on behalf of the prosecution; and, applying this standard, the Supreme Court set aside the conviction of the accused for murder and allowed their plea of self-defence. Sarkaria J. on behalf of himself and Bhagwati J., described the burden in terms of preponderance of evidence.
But Beg J. in an elaborate judgment, after quoting from his own judgment in the Allahabad High Court,2 held that the accused 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 general exception, a reasonable doubt is created in the mind of the court about the guilt of the accused-in this case, the required mens rea of murder. Beg J. elaborated the discussion by analysing the concept of reasonable doubt; a reasonable doubt about the guilt of the accused could be created not only by preponderance of evidence as regards the general exception pleaded by the accused, but also by creating reasonably doubt about the accused's guilt.
Even if the accused did not fully establish his plea as to circumstances coming within a general exception, yet, if there is sufficient evidence to justify the finding that the prosecution had not established its case beyond reasonable doubt on an essential ingredient in a finding of murder-requiring mens rea-the accused must be acquitted. The test so laid down by Beg J. is wider than the test of preponderance of evidence. This difference of approach between Sarkaria and Bhagwati JJ. on the one hand and Beg J. on the other hand, of course, made no difference to the result in that particular case, since, on either view, the defence succeeded.
1 Partap v. State of Uttar Pradesh, AIR 1976 SC 966 (972-974) (May issue) (Sarkaria Beg and Bhagwati, JJ.).
2. Rishikesh Singh v. State of Uttar Pradesh, AIR 1970 All 51 (supra).