LAW OF EVIDENCE-LEGISLATIVE COMMENT

“Reversal of the Burden of Proof and 113rd Law Commission Report”

INTRODUCTION
The Burden of Proof is an important aspect when it comes to the Indian Criminal Law taking
into consideration the fact that the main aspect of law-making is to ensure that the innocent is
not punished and the guilty is punished under the eyes of law. While in the usual case the
Burden of Proof is often placed on the prosecution in order to prove that the offence was
committed by the defendant, it is imperative to note that the Indian Courts are allowed to
presume facts and shift the burden of proof upon the defendant to prove that the individual or
the group of individuals have not committed the crime. Such an onus of proof and its gradual
shift is known as the reversal of the Burden of Proof. In this legislative comment, we look to
analyze such a shift in the burden of proof with special emphasis on the crimes that are
committed by the representatives of the sovereign authority in the due course of the
maintenance of Law and Order.
113rd LAW COMMISSION REPORT
The 113rd Law Commission Report dated 29th July,1985 merely deals with the issue of the
Reversal of Burden of Proof when it comes to custodial injuries. The report took into
consideration the case of State of UP v.Ram Sagar Yadav. In short, the Law Commission
Report suggested the addition of Section 114B. In the aforementioned case the Police
Personnel had apparently killed the victim in the due course of interrogation as a result of
which the court called for a need for a Reversal of the Burden of Proof.
The Law Commission Report notes that in the General Principle is wherein the Prosecution
has to prove the elements of offense which has to be changed owing to the circumstances of
the case. The facts of the aforementioned case are as follows: Brijl Lal was a farmer based in
Uttar Pradesh. The neighbor or Brij Lal filed a complaint against Brij Lal for cattle trespass
into his property which was false and maliciously filed. The Police Officer who happened to
be a constable had been persistently asking for bribes in order to settle this dispute and Brij
Lal in order to escape any false case against him paid Rupees 100 to the Constable. After
having given the bribe Brij Lal had inadvertently gone and complained about this issue to the
Superintendent of Police who transferred the investigation to the Station House Officer,
Hussainganj. The Station House Officer who was enraged by Brij Lal’s “Audacity” decided
to teach him a lesson. Two constables were sent to Brij Lal’s house in order to take him under
Police Custody pertaining to the issue at hand. Brij Lal who was brought to the Police Station
at around 10:00AM was taken to the District Magistrate in a mere state of Shock wherein he
was in a very critical condition. The Additional Judicial Magistrate happened to notice atleast
19 injuries on the body of Brij Lal. While Recording the dying declaration it is imperative to
note that Brij Lal had confessed that the Constables and the Station House Officers were
responsible for this state of his as he passed away that evening. The Supreme Court which
dealt with the case convicted the officers while also noting that
“Before we close, we would like to impress upon the Government the need to amend the law
appropriately so that policemen who commit atrocities on persons who are in their custody
are not allowed to escape by reason of paucity or absence of evidence. Police Officers alone,
and none else, can give evidence as regards the circumstances in which a person in their
custody comes to receive injuries while in their custody. Bound by ties of a kind of
brotherhood, they often prefer to remain silent in such situations and when they choose to
speak, they put their own gloss upon facts and pervert the truth. The result is that persons, on
whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station,
are left without any evidence to prove who the offenders are….”
Where the court pointed out a dire need in coming with an unconventional method of dealing
with the burden of proof aspect that is by placing such a burden on the accused who
discharged his duty in an unfair manner while also failing the purpose of the mere existence
of a government. It is also imperative to note that the court finds merit in the fact that the
cases are not often taken into consideration or are hidden taking into consideration the
brotherhood among the people working under a sovereign authority who remain lowkey or
silent with regards to such instances that happen under the scope of custody. This also places
a mere reference on the quote “No one is above the law, not even its subjects”.
The Law Commission Report took into consideration the fact that such incidents are often not
reported while laying down its claims pertaining to the discussion that so happened in the
Indian Parliament which had a discussion on the Custodial Rapes. The Law Commission
Report reasoned that a change to the existing system of Burden of Proof is merely important
taking into consideration the fact that such incidents are of the nature of abuse of power and
position and also amount to gross transgression of the law that binds everyone as a whole.
The Law Commission Report also states that in such a case a power will be given to the court
in order to note that any injury that so is sustained by an individual In the due course of his
stay in the police custody is to be deemed as the one that is inflicted upon the victim by the
Police officer who had taken custody of the victim. The Law Commission Report also takes
into consideration the reasoning that no injury can be inflicted upon someone who is in the
police custody except by the police personnel themselves. Such a power has been given to the
court which is to distinguish the various aspects of the case while zeroing upon if a
presumption can be taken with regards to the custodial death or not. This is an important step
and if such a presumption is taken upon by the court it is to be noted that such a presumption
reverses the already accepted placement of Burden of Proof upon the Prosecution side to that
of the accused’s or in other terms, the court rather assumes the fact that the prosecution was
caused an unjust injury in the due course of his/her stay in the police custody or any
administrative custody as a matter of fact.
With such a reasoning the Law Commission Report advocated for the introduction of Section
114B to the Indian Evidence Act 1872, which states that-
In very simple terms the provision gives power to the court to presume that any injury that so
was caused while the victim was there in the police custody should be deemed as the one
caused by that police officer who has to custody of the victim. The Court has the power to
use its discretion In order to decide the applicability of the burden of proof and such a
discretion is dependent upon the facts of the case, the statement made by the victim adding on
to the presumption, Evidence of the Medical Examination, Evidence of the magistrate who
might have attempted to or had already taken a statement which also involves dying
declaration. The Law Commission Report also tried to make it clear such that the custody that
so is taken into account might be legal or an illegal arrest and the scope of the liability that so
is conferred upon the Police Personnel is unchanged.