Reverse Burden A Threat To Presumption o

| i |NPA Criminal Law Review
NPA Criminal Law Review - 2016

NPA Criminal Law Review| ii|
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NPA Criminal Law Review
Mode of Citation: NPA Cr L R
Vol. 3 No.1 2016
68 RR Basic Course 2015-16
A publication of the Sardar Vallabhbhai Patel National Police Academy,

Hyderabad
NPA Criminal Law Review| iv|
ADVISORY COUNCIL
Smt. Aruna Bahuguna, IPS

Director
SVP NPA
Shri K. Pattabhi Rama Rao

Assistant Director (Law) &
Faculty Counsellor - Law Society
SVP NPA
ISBN:978 – 81 – 931249 – 0 - 4
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Vol. 3 No1 2016
Editors
Shobhit Saksena, (68 RR AGMUT Cadre)
Neeraj Kumar Jadaun (68 RR Uttar Pradesh Cadre)
Achal Tyagi (68 RR Gujarat Cadre)
Sudhanshu Verma (68 RR Jammu & Kashmir Cadre)
Sartaj Singh Chahal (68 RR Punjab Cadre)
Members of the Law Society
Shobhit Saksena (68 RR AGMUT Cadre)
Achal Tyagi (68 RR Gujarat Cadre)
Ajit Rajian (68 RR Gujarat Cadre)
Arunangshu Giri (68 RR Karnataka Cadre)
Ashok Meena (68 RR Uttar Pradesh Cadre)
Kantesh Mishra (68 RR Bihar Cadre)
Prashant Sumbe (68 RR Gujarat Cadre)

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Prianceu Pandey (68 RR A&M Cadre)
Rahul Dev Singh (68 RR Chhattisgarh Cadre)
Ravjot Grewal(68 RR Punjab Cadre)
Rishikesh Sonawane(68 RR Karnataka Cadre)
Rohit Yadav(68 RR AGMUT Cadre)
Lt. Sangey Dorji (Royal Bhutan Police)
Sartaj Singh Chahal(68 RR Punjab Cadre)
Sudhanshu Verma (68 RR Jammu & Kashmir Cadre)
Sujith Das (68 RR Kerala Cadre)
K. Vansi Krishna (68 RR Karnataka Cadre)
Rahul De (68 RR West Bengal Cadre)

| vii |NPA Criminal Law Review
Vol. 3 No.1 2016
CONTENTS ix
Director’s Foreword
1 Criminal Investigation with Special Emphasis on the Use of 1
S. 27 of the Indian Evidence Act, 1872
Justice Bhushan P. Dharmadhikari
2 People Friendly Police 18

Umesh Sharraf
3 CCTNS - Potential and Challenges 36

Rajiv Tandon and Ajit Rajian
4 Reverse Burdens: A Threat to Presumption of Innocence 47

K. Pattabhi Rama Rao and Veena Bharti
5 The Victim Acquitted Me! 75

A Study of Norus Actus Inteveniens
Sartaj Singh Chahal
6 Analysis of the Prohibition Law in Bihar 88

Mayank Kumar and Kantesh Mishra
7 Establishing the Rule of Law in Action Against Non State 99

Actors
Ragasudha R and Mohammad Sana Akhtar
8 Police Recruitment and Criminal Antecedents 107

NPA Criminal Law Review| viii|
Sudhanshu Verma
9 General Lapses in Police Investigation 111

Shobhit Saksena
10 Need for Communal Violence Prevention Law 123
Neeraj Kumar Jadaun
11 Investigating Cases of Atrocities Against Scheduled Castes 147

and Scheduled Tribes
Rahul De
12 Plea Bargaining in India –Evaluation and Challenges 169

Achal Tyagi, Shrikant Yeilwad and Akhil Patel
13 Soumya Rape & Death Case: Some Unanswered Questions 177

Chaitra Teresa John and Sujith Das
14 Can Forensic Medicine Help in Better Justice Delivery? 186

Dr. Deepak Yadav
15 An Analysis of the Offence of Sedition 203

Sandeep Kumar Malik
16 Water Rights and Legal issues 212

Atul Kulkarni
17 Beyond Borders: Extradition – History and the 223

Legal Framework in India
Barun Purkayastha, Bharat Reddy, Shwetank Mishra
18 Intermediaries under Indian Cyber Law with a Focus 230

on WhatsApp Related Regulations
Anant Mittal and Utkarsh
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REVERSE BURDENS: A THREAT TO

PRESUMPTION OF INNOCENCE
K. Pattabhi Rama Rao and Veena Bharti1
I. Introduction
Throughout the web of English criminal law, one golden thread is
always seen, that it is the duty of the prosecution to prove the prisoners
guilt, subject to........ the defence of insanity and subject also to any
statutory exception.2 The revolutionary decision of the House of Lords
of England, in Woolmington v D.P.P3 delivered by a five judge bench
headed by Viscount Sankey L.C, more than eight decades ago, set the
basic parameter for proof of guilt in the criminal cases. Principles of
burden of proof, which were vacillating till then were partly settled.
Important contribution of this judgement to English criminal
jurisprudence is two-fold.
1. Firstly, it has settled the rule of evidence that the burden of proving
the guilt of accused is always on prosecution and only under
exceptional pre recognised situations, the rule can be relaxed.
2. Secondly, as a logical deduction of the above principle, it was
recognised that in every criminal trial the accused shall be
presumed to be innocent till the guilt is proved and there cannot be
any presumption of guilt or presumption of existence of any in
criminating circumstances. Sankey’s assertion in Woolmington, for
1
The authors are Assistant Director (Law) & Assistant Director (Indoor Studies) at
Sardar Vallabhbhai Patel National Police Academy, Hyderabad respectively.
Ms.Veena Bharti is an IPS officer of the 2007 batch, borne on Himachal Pradesh
cadre.
2
[1935] A.C.462, at p. 481. Defence of insanity is specifically included in view of
equally recognised presumption that every person is presumed to be sane.
3
Ibid
NPA Criminal Law Review - 2016 | 48|
general application in all the criminal cases, was soon approved as

a precedent of great importance.4
The above two rules are intrinsically connected and inescably
related to the adduction of evidence in criminal cases. Presuming either
guilt or innocence of the accused, before commencement of trial of a
criminal case, has its own effect on trial and its outcome. History of
criminal jurisprudence has witnessed the presumption on both sides of
fencing - Sometime for presumption of guilt and for some time for
presumption of innocence. In Common Law criminal justice system
growth of liberal political values and pro democratic movements
influenced the recognition of principle of presumption of innocence of
the accused, as against the presumption of guilt. Transcendence of the
principle across the continents did not take much time. It found favour in
all political systems, following either adversarial or inquisitorial criminal
justice systems, albeit it is believed that in the latter, there are liberal
relaxations to this rule than in the former. This belief is not totally
correct as in both the systems, there is equal treatment to the rule of
presumption of innocence and exceptions to the rule.
Apart from recognising the principle of presumption of

innocence of the accused, legal systems have also recognised the
presumptions which operate against the accused and they found place in
the substantial criminal law and law of evidence. They are classified as
presumptions of fact and presumptions of law. Presumptions of fact are
the kind of presumptions supported by logic and common sense and the
facts that fall in this category are those that “are likely to have
happened.” Presumptions of law on the other hand are arbitrary
inferences which the law directs the court to draw from particular facts
without regard to the logical inclination of the mind as influenced by the
facts.5 Presumpstions of law are further divided in to “rebuttable” and
4
Manicini v D.P.P [1942] A.C. 1
5
J.V. Ryan, The Law of Criminal Evidence in India and its Application, (Calcutta,
1912) at p.197
“irrebuttable Presumptions.” The doctrine of presumption of innocence,

placing the burden of proof on prosecution, guarantees that the accused
shall enjoy the “status of being innocent” till the proof of guilt. Burden
on prosecution being the normal rule of evidence, the function of
presumption “is to place the burden of proof on a party on which the
burden would not lie under the normal rule of burden of proof.”6 Any
presumption created by law in which the entire burden of proof is shifted
to the accused in derogation of the doctrine of presumption of innocence
is called reverse burden. Many recent criminal statutes in our country
have reverse burden clauses. This article is concerned with the situation
in which the prescribed reverse burdens may lead to gross injustice of
conviction of innocents. Some of the reverse burden clauses are not only
incompatible with the doctrine of presumptions of innocence, but also
may result in violation of some other rights of the accused.
Normative structure of the doctrine of presumption of innocence

and reverse burdens is briefly introduced in Part-I of the Article. Here
under, in Part-II, the authors have examined nature of presumption of
innocence, status of this doctrine in Indian criminal justice system and
recognition of the rights based on this doctrine by the legal systems in
other countries. Part-III of the article is dedicated to nature of reverse
burden clauses and justifications for operation of the reverse burdens in
criminal justice system. The argument of the authors is that the
excessive and heavy reverse burdens tilt the scales of justice and the
growth of reverse burdens is a threat to the right of accused to be
presumed innocent till the guilt is proved. It is argued by the authors that
the right of accused based on that doctrine of presumption of innocence
shall be sustained and safeguarded. This is the bone of contention of the
authors and it is discussed in Part-IV of this paper. Summation of the
ideas and conclusions of the authors are incorporated in Part-V. The
authors make it clear that the scope of the article is restricted to study of
6
Dr. V. Nageswara Rao, The Indian Evidence Act (LexisNexis Butterworths,
Wadhwa, Nagpur (2012)) at p.33
operation of the reverse burdens in the arena of criminal law, since the
focus is on the interplay between reverse burdens and presumptions of
innocence, which is or at least is considered as an important right of the
accused facing criminal charges. The authors also make it clear that they
are not advocating for absolute presumption of innocence nor that there
cannot be any legal presumptions. The focus is on such reverse burden
clauses which have the effect of erosion of the right of the accused to be
presumed innocent and other constitutional rights.
II. Presumption of Innocence: As a Value and a Right
Though criminal justice during British Indian period was

administered in accordance with the common law of England,
codification of principles of common law for application to Indian sub
continent by British Parliament, raised curtains for statutory regime in
the country. By enacting the Indian Penal Code, 1860, the Indian
Evidence Act, 1872 and the Criminal Procedure Code, 1861,7 the foreign
rulers have provided for rule of law and uniform application of laws to
all the subjects of this country.
Indian Evidence Act, 1872, (hereafter Evidence Act) often

described as a master piece of draftsmanship, despite having specific
rules on presumptions and burden of proof8 of a number of facts, did not
provide for presumption of innocence of the accused in criminal cases.
The Evidence Act recognised the general principle that the burden of
proof lies on the person who would fail if no evidence at all were given
on either side.9 Evidence Act made a clear provision in section 105 that
the burden of proving existence of circumstances bringing the case
within any of the general exceptions or within any special exceptions is
7
The British Parliament replaced Code of 1861 with Code of 1872 and again with
Code of 1882 and 1898. At present the Code of Criminal Procedure, 1973 is in force.
8
Sections 79 to 90 A (18 sections), Sections 111-4 to 114 A (7 sections) of the
Evidence Act are on presumptions where as sections 105 to 110 (6 sections) of the
Evidence Act deal with burden of proving specific facts, and they also create
presumptions of certain facts.
9
Section 102 of the Evidence Act
on the accused and the court shall presume the absence of such
circumstances. A number of presumptions of facts and presumptions of
law were incorporated into the Evidence Act by its authors. The
conspicuous absence of the presumption of innocence in the Evidence
Act, reflects the jurisprudence and values existing at the relevant time.
However it can be noticed that the courts in India have recognised the
doctrine of presumption of innocence, much before the judgment in
Woolmington.
In Queen- Empress v Ramana,10 a judgment dated 20th February

1889, Madras High Court has categorically laid down that in criminal
cases the presumption of innocence must be displaced by positive
evidence. In Ashraf Ali v Emperor11 a judgment dated 5th July 1917,
Calcutta High Court held that “where in a criminal case, there is a
conflict between presumption of innocence and any other presumption,
the presumption of innocence prevails.” However, Woolmington
decided in the year 1934, was acknowledged by the courts in India, in
the year 193712and soon there evolved a jurisprudence on the right of the
accused to be presumed as innocent till the guilt is proved. When India
adopted its own constitution, some of the rights of the accused are
recognised as fundamental rights,13 but again there was conspicuous and
deliberate omission of the right of the accused to be presumed to be
innocent.14
10
Queen- Empress v Ramana MANU/TN/0035/1889
11
Ashraf Ali v Emperor MANU/WB/0218/1917
12
In Emperor v Damapala, (37) 24 AIR 1937 Rangoon 83 it was held that the decision
of Woolmington is not inconsistent with the law in British India. In an interesting
judgment by a full Bench of Allahabad High Court, in Parbhoo vs. Emperor dated 16 th
September, 1941, seven judges on Bench divided and majority of them have approved
that the then existing law in India was similar to the law declared in Woolmington and
the dissenting judges have refused to apply Woolmington to Indian cases, because in
their opinion it is the Evidence Act, that has to be applied but not the judgments of
English courts. However in due course of time Woolmington was completely
endorsed by Indian Courts. The Supreme Court has categorically recognised the
principle in Woolmington in V.D. Jhingan v State of U.P, AIR 1966 S.C.1762.
13 Articles 20 & 22 of the Indian Constitution
14
It is considered as deliberate since the Constituent Assembly discussed this right
several times, but did not include it in the Constitution of India.
Thus, in India the right of accused to be presumed innocent until

the proof of guilt is neither a constitutional right nor is it expressly
recognised as a statutory right. However, the inherent value that this
right contains made it to acquire a higher status in administration of
criminal justice system by the courts. Within less than a decade of its
assertion by highest court of a country, very far away from this land, the
courts have started recognising the right as absolute right of the accused.
Due to such recognition, the courts have been consistently insisting on
proof of the accusation beyond reasonable doubt and at times beyond the
“shadow of reasonable doubt.” 15 The requirement of proof of guilt
beyond reasonable doubt by prosecution led to the principle that if two
views of an incident are possible on the evidence adduced in a criminal
trial, the view which is favourable to the accused shall be accepted by
the court.16 Thus, several rights of accused have been derived from the
doctrine of presumption of innocence.
It can be noticed that members of the Constituent Assembly of

India have taken it for granted that presumption of innocence as a right
of the accused exists in the legal system of the country. There was
discussion on presumption of innocence in the Constituent Assembly
debates. Dr. Bakshi Tekchand, member of the Constituent Assembly
from East Punjab, referred to the Charter of Human Rights, then under
consideration by the United Nations Organisation, and mentioned
Article 9 of the Charter which provides that everyone charged with a
penal offence has the right to be presumed innocent until proved guilty
according to the right to law.17 Pandit Das Bhargara, while discussing on
preventive detention remarked that “After all every accused person
before trial is presumed to be innocent, and similarly a detainee who is
15
See for e.g, Bhaba Nanda Sharma v State of Assam MANU/SC/0078/1977
16
See for e.g. State of U.P v Sammandas, MANU/SC/0268/1972 Bhubaneshwara
Mandal v State of Bihar MANU/SC/0094/1972
17
C.A.D. vol IX Part II (15th September, 1949), www. Parliament of
Inida.nic.in/Is/debates/vol 9 p 35b.htm
not even tried is presumed to be innocent. 18 Mr. Raj Bahadure, a

member of the Constituent Assembly from United State of Matsya,
speaking on the provisions relating to criminal appeals, has remarked- “I
also recognise the soundness of the healthy principle that the innocence
of accused person must be taken for granted as a presumption unless it is
rebutted by solid evidence.” Dr. Bakshi Tekchand, also took it for
granted that such a right of presumption of innocence exists. Arguing for
providing appeal from reversal of acquittal and convicting of the
accused by the first appellate court, he opined that “Here in the first
place there is the initial presumption of law that every person is
presumed to be innocent until he is proved to be guilty. This
presumption is further strengthened by the fact that the trial judge has
found him innocent.”19
Thus there was enough discussion on the doctrine of

presumption of innocence in the Constituent Assembly, but no reason
was cited by it for not including this right specifically as a Constitutional
right. Nevertheless, the above discussion by members makes it clear that
the Constituent Assembly had taken it for granted that such a right
indeed exists and it is a recognised one. By the time of independence of
the country and drafting of our constitution, the principle of
“presumption of innocence” became cardinal principle of our criminal
jurisprudence.
Presumption of Innocence: As a Human Right and

Constitutional Right
Presumption of innocence was recognised as “Human Right.”

Article 11(1) of the Universal Declaration of Human Rights, 1948,
18
C.A.D. vol IX Part I (15th September, 1949), www. parliament of indian.nic.in/Is
/debates/vol 9 p 35a.htm
19
C.A.D. vol IX Part I (14th June, 1949), www. parliament of india.nic.in/Is/debates/
vol 8 p 21a b.htm
Article 14(2) of the International Covenant on Civil and Political Rights,

1966, Article 6(2) of the European Convention on Protection of Human
Right and Fundamental Freedoms Article 7 (b) of the African Chater on
Human and People’s Rights and Section 11(d) of the Canadian Charter
of Rights and Freedoms mandate that the accused shall be presumed to
be innocent till he is proved guilty. The above instruments declare the
basic human rights and fundamental freedoms every person shall enjoy
and it is the duty of the States (governments) to facilitate such
enjoyment. Many countries have accorded presumption of innocence a
status of constitutional right. Here is a brief mention of provisions
relating to the presumption of innocence in different constitutions.
France
Article 9 of The Declaration of the Rights of Man and of the Citizens of
1789, France, which has the force of Constitutional law, mentions “Any
man being presumed innocent until he has been declared guilty. The
French Code of Criminal Procedure states in its preliminary article that
“Any person suspected or prosecuted is presumed innocent for as long
as their guilt has not been established” and the Juror’s Oath also
reiterates this assertion (Article 304)
Canada
The Canadian Charter of Rights and the Freedoms (La Charte
Canadienne Des Droits Et Libertes), simply called the Charter, is a Bill
of Rights entrenched in the Constitution of Canada. Section 11(d) of the
Charter States “Any person charged with an offence has the right to be
presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal. This right has
led to some case laws, as the courts have given decisions which strike
down reverse burden clauses as violating the presumption of innocence.
The first of these was in R.v Oakes20 in respect of Narcotics Control
Act. The Court found that a reverse burden clause is not rational on
20
R.v Oakes [1986] 1 SCR 103 (Canada)
fighting narcotic traffic since one could not assume a person found with
narcotics means to traffic it. In R.v Hill21 the Ontario Superior Court of
Justice found that the principle of presumption of innocence applies not
only to a trial on the facts, but also to sentencing in circumstances where
the crown alleges that the accused is a “dangerous offender.”
Columbia
In the Constitution of Columbia Article 20 of Chapter 1 lays down that
‘every person is presumed innocent until proven guilty according to
law.”
Italy
The Constitution of Italy recognises this presumption of innocence,
under the Rights and Duties of Citizens (Articles 13-54).
Iran
The Constitution of the Islamic Republic of Iran, Chapter III, Article 37
provides for the presumption of innocence stating, “Innocence is to be
presumed, and no one is to be held guilty of a charge unless his or her
guilt has been established by a competent court.”
Romania
The Constitution of Romania, which was adopted on 21 November,
1991, and amended on 29 October 2003, states in Article 23, that “any
person shall be presumed innocent until found guilty by a final decision
of the court.”
South Africa
In the Constitution of the Republic of South Africa, 1996 – Chapter 2,
Bill of Rights, under Article 35 (Arrested, Detained and Accused
persons) Clause 3 (h) states that “every accused person has a right to a
21
R.v Hill 2012 ONSC 5050 (Ontario Superior Court)
fair trial, which includes the right to be presumed innocent, to remain

silent and not to testify during the proceedings.”
Russia
In the Constitution of Russia, Article 49 states that “Everyone charged
with a crime shall be considered not guilty until his or her guilt has been
proven in conformity with the federal law and has been established by
the valid sentence of a court of law”. It also states that “The defendant
shall not be obliged to prove his or her innocence, and any reasonable
doubt shall be interpreted in favour of the defendant.”
New Zealand
The New Zealand Bill of Rights Act 1990 (NZBORA) is a statute of the
Parliament of New Zealand setting out the rights and fundamental
freedoms of anyone subject to New Zealand Law as a ‘Bill of Rights.” It
is part of New Zealand’s uncodified Constitution. The Bill of Rights
provides for fair trial – under section 25(c), which states that everyone
who is charged with an offence has the “the right to be presumed
innocent until proved guilty according to law.”
United States
In the Constitution of the United States, presumption of innocence is
widely held to follow from the 5th, 6th and 14th amendments although
not cited explicitly. In Coffin v United States22 which was an appellate
case before the United States Supreme Court right presumption of
innocence of persons accused of crimes, was established.
Kenya
An accused person enjoys the right to be presumed innocent until the
contrary is proved, Art. 50 (2) (a) of the Constitution of Kenya places
22
Coffin v United States 156 U.S. 432 (1895)
upon the government the burden of proving each element of the offence
beyond a reasonable doubt.
Cambodia
The presumption of innocence finds expression in Article 38 of the
Cambodian Constitution, which states that “Accused persons shall be
considered innocent until the court has finally decided upon the case.”
Rwanda
As stated in Article 19 of the Constitution of Rwanda, “every person
accused of a crime shall be presumed innocent until his or her guilt has
been conclusively proven in accordance with the law in a public and fair
hearing in which all the necessary guarantees for defence have been
made available.”
Tanzania
Set 13(6) (b) of the Tanzania Constitution stated that “No person
charged with a criminal offence shall be treated as guilty of the offence
until proved guilty of that offence.
Uganda
Article 3 (a) of the Constitution of Uganda, mandates that every person
who is charged in a criminal offence shall be presumed to be innocent
until proved guilty or until that person has pleaded guilty.
Zimbabwe
Every person who is charged with a criminal offence shall be presumed
to be innocent until he is proved or has pleaded guilty as per Act 18(3)
of constitution of Zimbabwe. The authors are of the opinion that
presumption of innocence in India also should be accorded the status of
the constitutional right. In this back drop it is profitable to find out the
rationale and necessity of the doctrine of presumption of innocence.
Presumption of innocence can be justified mainly on the following

grounds.
1. State has rightly assumed its role as a protector of its citizens and
guardian of their rights. The wrong doer shall be punished. The
accusation is to be made against the wrong doer at the behest of
victims and the prosecution relies in all usual cases, on the evidence
given by the victims or witnesses. Punishing a criminal thus is
censuring a person by the State on a complaint made by private
persons. Right of the State to punish the wrong doer cannot be
doubted on any ground and at the same time right of the innocent not
be punished is more fundamental. There cannot be more injustice
than convicting an innocent person.23 In order to safeguard against
such injustice and to ensure fair trial of the accused, it is necessary to
adhere to the long cherished right of the accused to be presumed
innocent till his guilt is proved.
2. Number of cases in which the evidence of witnesses is not believed
by the court is not less. There is no guarantee that witnesses speak
the whole truth. Privy Council in Bhuboni Sahu,24 cautioned that
“the tendency to include the innocent with the guilty is peculiarly
prevalent in India, as judges have noted on innumerable occasions,
and it is very difficult for the court to guard against the danger.” This
caution was reiterated by the Supreme Court in Kashmira Singh.25 In
such circumstance, the courts are bound to commit errors in fact
finding in view of acknowledged practice of concoctions and
fabrications of the evidence by the parties. Thus presumption of
innocence of the accused acts as a safeguard provided by the legal
system against such fabrication of evidence by the complainant as
this doctrine requires proof of the facts beyond reasonable doubt.
23
R.M. Dworkin, Principle, Policy and Procedure, C. Tapper (ed.), Crime Proof and
Punishment (Butterworths; London 1981)
24
Bhuboni Sahu v The King, MANU/PR/0142/1949
25
Kashmira Singh v State MANU/SC/0031/1952
3. The arms of the State are strong and its hands are too long. Society
as a group of several individuals is more powerful than an
individual. The resources of the accused are weak. Even the richest
person may not be able to procure the powers and status enjoyed by
the State. When there is huge disparity of resources between State
and the accused, presumption of innocence shall be recognised as
political and legal principle, so that it rationalises the procedure
under which the State exercises the power to punish. Author of the
Evidence Act, though did not expressly include the presumption of
innocence in the law of evidence that he gave to this country, has
expressed his highest regard for the doctrine. He wrote thus:
“In the present day the rule that a man is presumed to be
innocent till he is proved to be guilty is carried out in all its
consequence.... if it be asked why an accused person is presumed
innocent.... The true answer is not that the presumption is
probably true, but that society in the present day is so much
stronger than the individual, and is capable of inflicting so very
much more harm on the individual than the individual as a rule
can inflict upon society, that it can afford to be generous.”26
Thus, one justification for favouring the doctrine of presumption
of innocence is strength of the society qua individual accused
coupled with the strong arm of the State and its rich resources.
4. Citizens cannot be punished without required degree of proof and

the society which values freedom shall not punish the citizens for
commission of crime where there is reasonable doubt about his guilt.
Absolute proof of high standards however, cannot be required as it is
impossible to provide such proof of all facts in all the cases.
Precisely this is the reason why the courts shall be allowed to have
the freedom to infer certain facts and to allow such a freedom, the
26
Sir James Fitzjames Stephen, History of the Criminal Law of England (London:
Macmillans co 1883, vol. 1) at p. 384
basic requirement is operation of doctrine of presumption of

innocence in the criminal justice system. If the presumption of
innocence is recognised as the right of the accused, at the
commencement of trial, the courts can be allowed to infer certain
facts after the trial, basing on the facts, which were adequately
proved.
5. Police working culture is another reason why in a country like India,
presumption of innocence shall be recognised as fundamental in
criminal justice administration. The law enforcing agencies are too
often resort to easy way of proving the guilt and possibility of
fabrication of evidence is more. Sir James Fitzjames Stephen, the
author of the Evidence Act, commenting on the laziness of Indian
Police Officers, quoted the opinion of an experienced civil officer, in
the following words
“There is a great deal of laziness in it. It is far pleasanter to sit
comfortably in the shade rubbing red pepper into poor devils eyes
than to go about in the sun hunting up evidence.”27
Though Stephen made the above comment justifying the exclusion
of confessions from admissible evidence, it makes clear that Indian
Police take recourse to short cut methods in investigation of cases.
The notoriety of such police practices could not be effaced with the
passage of time. The Law Commission of India while commenting
on such police practices after more than one and half century after
the Evidence Act came into force has observed that “what the First
Report of Law Commission said more than 150 years ago holds
good today and in fact, the situation has vastly deteriorated.”28 Thus
in a country where the crime investigation agency could not score
27
Ibid, at p. 442. One of the authors Ms. Veena Bharti, slightly differs with this view
on police functioning.
28
Law Commission of India, 185th Report on Review of Indian Evidence Act, 1872
(Part-II) at p.132
any credibility points, attempts to disregard the principle of

presumption of innocence may lead to lot of injustice and wrongful
convictions.
6. It is not inappropriate to mention the provisions of 144 years old

Evidence Act of pre constitutional era reflecting Victorian values of
justice. Section 101 of the Evidence Act, mandates that the person
who desires to give any judgment to any legal right or liability
dependent on the existence of facts which he asserts must prove the
said facts.29 And illustration (a) clearly indicates how the principle
works in criminal cases. 30 Section 103 of the said Act says that
burden of proof lies on the person who wishes the court to believe in
its existence. Thus the Stephenian approach as to the burden of proof
of guilt of the accused is clear. In pre constitutional era, he could not
have dared to include presumption of innocence, in the Evidence
Act, as by that time even in England, the right of the accused based
on that principle was under conception. It was only more than six
decades after enactment of the Evidence Act, such right was finally
shaped in Woolmington. The inclined intention of authors of the
Evidence Act is to be inferred in favour of presumption of
innocence. Law making bodies of independent India have failed to
recognise this hidden, but on proper appreciation, a clear intention of
the authors of the Evidence Act. This argument also fortifies the
contention in favour of presumption of innocence.
III. Reverse Burdens: Rules of Necessity
Though the courts in India have recognised presumption of
innocence as a higher value which shall be maintained in criminal justice
administration, one can notice the growing prominence of reverse
burdens in the legislations in recent past containing presumptions that
can be inferred against the accused. Whenever there is public resentment
29
Section 101 of the Evidence Act
30
Illustration (a): A desires a Court to give judgment that B shall be punished for a
crime which A says B has committed. A must prove that B has committed the crime.
in increase of crime rate or protests against sensational incidents of

crime, the response of the government usually is either to increase
punishment prescribed to the offence (including prescribing of minimum
punishment) or adding presumptions against the accused in such crimes
or doing both. By doing so governments claim that the law has been
strengthened. As a sequel to the protest of intellectuals against the
judgment of the Supreme Court of India in Tukaram vs State of
Maharashtra,31 (popular as “Madhura Rape” case), Section 114 A was
introduced in the Evidence Act, in the year 1983, was again amended
after protests post Nirbhaya incident all over the country.32 Similarly to
check the increasing dowry deaths of women, law was amended to
include sections 113 A and 113 B in the Evidence Act, creating
presumptions in cases of suicides by women and dowry deaths in the
year 1983.33 There is no point in multiplications of examples of such
presumptions in special laws enacted by the parliament. They are too
many and the injustice that occur because of them are discussed in the
later part of this article.
There are presumptions which shift the onus of proof of certain

facts to the accused and it can be argued that even in such circumstances
the presumption of innocence is not completely withdrawn and burden
of proof (being different from onus of proof) is not shifted. Reverse
burden clauses on the other hand shift the burden of proof from the
prosecution to the accused. The presumptions associated with onus of
proof provided in the law are to be distinguished from “reverse
burdens.” Unlike presumption which shifts the onus of proof, reverse
burden is a considerable departure from the operation of presumption of
innocence and as David Hammer rightly observed, “the persuasive
reverse burden requires the defendant to prove his innocence on the
31
Tukaram vs State of Maharashtra AIR 1979 SC 185
32
By Act 13 of 2013 w.e.f 3.2.2013, which amended criminal law relating to the rape
and other offences. against women, after serious protests against the gang rape of
young girl in New Delhi in December 2012.
33
By Act no 46 of 1983.
balance of probabilities. 34 Reverse burden of proof where the law

withdraws the presumption of innocence of the accused, albeit
temporarily, and replaces it with presumption of guilt. Withdrawal takes
place at the very commencement of trial on proof of certain facts.35 On
the other hand presumption which shifts only onus of proof does not
cause any damage to the right of presumption of innocence of the
accused and it does not relieve the prosecution from its initial burden of
proving all the facts. Such a presumption requires the accused to prove
what he pleads as defence or bars him from pleading certain defences
after proof of certain facts by the prosecution and in no case it has effect
of erosion of the presumption of innocence. To put it more succinctly,
even if the onus of proof is not discharged, the accused cannot be found
guilty and convicted unless the prosecution proves the facts constituting
the offence, whereas in case of reverse burden of proof, if the accused
fails to discharge the burden, the verdict of the court shall favour the
prosecution.
Reverse burdens are different from strict liability cases. Strict

liability is an exception to the requirement of proof of “mensrea” by the
prosecution and it is nothing to do with presumption of innocence. Even
in the prosecution of strict liability offences, the burden is on the
prosecution to prove all the facts relating to the “actus reus” and the only
relaxation is that no specific evidence need to be adduced to prove
“mens rea” part of the crime. This argument is not free from attack.
British legal scholars have been arguing that strict liability offences
infringe the presumption of innocence guaranteed under Article 6(2) of
the European Convention. Their argument is that strict liability offences
may offend the principle of presumption of innocence because once the
34
David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing
Act, 66 Cambridge L.J. (2007), 142 at p. 143
35
Dr. V. Nageswara Rao, The Indian Evidence Act (LexisNexis Butterworths,
Wadhwa, Nagpur (2012)) at p. 456.
prohibited act is proved the accused is presumed to be liable. 36 It is

pointed out by some commentators that the effect of presumption and
the imposition of strict liability is the same.37 Such commentators equate
imposing of strict liability with reverse burdens and argue that though
the theoretically strict liability is different from reverse burdens, in
effect, both have similar effect in the trial. The authors of the paper
however differ with the above view. Even on pragmatic assessment, in
strict liability offences, courts need not enquire whether there is “mens
rea” where as in cases of reverse burdens the accused is under an
obligation to prove that he does not have “mens rea” and in some cases
he requires to prove that he is innocent. Therefore, there is difference
between strict liability offences and reverse burdens in theory and
practice as well.
When the doctrine of presumption of innocence is held in reverence,

the assumption is that reverse burdens are the rules of necessity. Though
a number of justifications are advanced in support of reverse burdens, all
of them fall under “Necessity” justification and rules on reverse burdens
are rules of necessity. No specific value can be attached to reverse
burdens, except justifying their existence in law on the ground of
necessity. Enumerated below are vital justifications for creating reverse
burdens. Each argument favouring such justifications reasons out the
need for exception to the rule of presumption of innocence.
1. The important argument in support of reverse burdens or

presumption against the innocence of accused is the difficulty in
proving certain facts. Section 113-B of the Evidence Act is an
example to such a presumption regarding dowry death. According to
it if death of a married woman takes place within seven years of
marriage and it is proved that soon before death the woman was
36
See V. Tadros and S Tierney, The Presumption of Innocence and the Human Rights
Act (2004) 67 MLR 402
37
See R.A. Duff, Strict liability, Legal Presumptions and Presumptions of Innocence,
A semester (ed), Appraising Strict Liability at p. 125
subjected to harassment in connection with the dowry it shall be

presumed that the husband or relatives of the husband are
responsible for her death. The law makers perceived that it would be
difficult to prove what had happened within the four walls of the
house and thus, created a law for such presumption. Section 114 A
of the Evidence Act, is another example of such a need, according to
which a presumption in case of offence of rape, shall be drawn by
the court that the woman did not give consent to the sexual
intercourse, if she states in her evidence that she did not give
consent. Though it has been argued that this presumption is created
on the reasoning that Indian woman do not give such evidence in the
court unless the rape is true, 38 in fact the more convincing
justification for such presumption lies in the fact that there might not
be any evidence except the statement of the victim woman regarding
absence of consent. Therefore, if there is no such presumption, it
becomes difficult for prosecution to prove that the woman did not
give consent. To put in one line, the point here is that since it is
difficult to prove certain facts, there is necessity to have such legal
presumptions.
2. Proof of facts especially within the knowledge of the accused
becomes difficult unless the burden of proof is on the person who
has knowledge. Section 106 of the Evidence Act says that when any
fact is especially within the knowledge of any person, the burden of
proving that casts is upon him. This is also based on the principle of
necessity.
3. Seriousness of offence is another strong reason advocated in favour
of reverse burdens. Quite often it is argued that the unmeritorious
acquittals in serious crimes are due to technical rules of evidence and
therefore proof beyond reasonable doubt shall be done away with in
such cases. Andrew Ashworth, points out that
38
See Omprakash v State of U.P MANU/SC/8150/2006, State of U.P. v Chhoteylal
MANU/SC/0053/2011, Bharwada Bhoginibai Hirjibhai v State of Gujarat
MANU/SC/0090/1983
“In the present day there is bound to be pressure to sacrifice or

modify the presumption of innocence in the face of terrorism,
drug trafficking organised crime and so forth.”39
In an English case, 40 Lord Hope said that in determining the
justification for exceptions to the presumption of innocence one
factor was the “nature of threat faced by the society which the
provision is designed to combat and that a fair balance must be
struck between the demands of the general interest of the community
and the protection of the fundamental rights of the individual.41
4. Another justification in support of reverse burdens is threat to
society. There are certain acts which are opposed by majority of the
public since such acts are dangerous to one and all. Acts of terrorism
fall in this category. Protection of society is considered to be prime
duty of the State Life of a person is undoubtedly to be highly valued
than any other values. On this ground reverse burdens are imposed
on person accused of terrorist activities in several jurisdictions.
5. Difficulty of proving negative facts is another justification offered to
have reverse burdens in the criminal statutes. Andrew Ashworth
gives the examples of interesting English cases.42 In an old English
case, the accused was charged with possessing a pheasant without
proper qualification. There were ten grounds of qualification and
hence rather than requiring the prosecution to prove in negative that
none of ten were present, the burden of proving the existence of a
qualification was imposed on the accused.43 R vs Halton Division
Magistrates Court44 is another example cited by Ashworth, in which
the accused was charged with felling the trees in the forest without
licence and the law allows several circumstances in which unlawful
39
Andhrew Ashworth, Four Threats to the Presumption of Innocence, 10 Int’l J.
Evidence & Proof 241 (2006) p. 260
40
R v D P P ex. P Kebilene [2000] 2 AC. 326
41
Ibid, at p.384
42
David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing
Act, 66 Cambridge L.J. (2007), 142 at p. 143
43
Turner, 105 E.R. 1026, quoted by David Hamer in the Article at F.N.40, at p. 160
44
[2003] EWHC 272
felling of trees is permissible. In this case it was held that it is for the
accused to prove under which circumstance he caused felling of
trees, than asking the prosecution to prove that none of such
circumstances of proving negative facts. It is intended, that reverse
burdens can be imposed.
The above are justifications that have been argued by various scholars in
supports of reverse burdens.
IV. Reverse Burdens: Undue burden on accused

Endeavour of the authors of this paper is to advocate for
safeguarding right of presumption of innocence by reducing the rigour
of reverse burdens. Those who support crime control model of justice
administration do not hesitate having as many reverse burdens as
required by the laws, but those who adhere to the values of justice
system based on due process model in which protection of the right of
the accused is also given paramount importance, find it difficult to a
justify the rigorous reverse burdens which militate against time tested
and widely honoured cardinal principles of criminal law. Law
commission of India, in its 180th Report, submitted to the then law
minister Arun Jaitley expressed its concern:
“In recent times, the basic principle that the prosecution has to
prove the charge of guilt against the accused beyond reasonable
doubt is being diluted by the legislatures in several statutes.”45
Where it is said that a defendant to a criminal charge is presumed

to be innocent, what is really meant is that the burden of proving his
guilt is up on the prosecution....... Unhappily, Parliament regards the
principle with indifference, one might almost say, with contempt. The
Statute Book contains many offences in which the burden of proving
innocence is cast on the accused..... The sad thing is that there has never
45
Law Commission of India, 180th Report on Article 20(3) of the Constitution of India
and the Right to silence,(May, 2002) p.7
been any reason or expediency for these departures from the cherished
principle; it has been done through carelessness and lack of subtleties.46
Prevention of Corruption Act, 1988, Narcotic Drugs Act, and

Psychotropic Substances Act, 1985, Schedule Castes and Schedule
Tribes (Prevention of Atrocities) Act, 1989 Protection of Children from
Sexual Offences Act, 2012, (hereafter P.O.C.S.O Act) Negotiable
Instruments Act, 1881 and Customs Act 1962 are some of the
legislations which provides for reverse burdens. In order to prove rigour
of the reverse burdens, I cite the example of the presumptions in the
P.O.C.S.O Act. Sections 29 and 30 of the said Act read as follows:
Section 29: Presumption as to certain offence: 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: Presumption of culpable mental state: (i) 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 had no such mental state with respect to
the act charged as an offence in that prosecution.
(ii) 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.
46
See Glanville Williams, The Proof of Guilt (1963), 3rd Ed. Sterans), pp. 184-185.
A simple analysis of section 29 reveals that the prosecution need

not adduce to prove any fact to presume that the accused has committed
the offence. If a person is “prosecuted” for any of the offences
mentioned there in, the court shall presume that the person has
committed the offence. One cannot give any extended meaning than
filing of challan/charge sheet to the word “prosecuted” occurring in the
above section. Section 30 of the Act mandates a presumption regarding
culpable state of mind. Thus, the combined effect of sections 29 and 30
of the P.O.C.S.O Act is that the court shall on filing of the charge sheet,
presume the “actus reus” and “mens rea” of the offence and the burden
is on the accused to prove that he has not committed the offence.
Theoretically if no evidence is adduced, on either side, in terms of
Section 102 of the Evidence Act, court is bound to convict the accused
for the offence under the P.O.C.S.O Act for which the accused is
prosecuted or charged. Another aspect that is to be considered is, to
discharge the burden under section 30 of the P.O.C.S.O Act, the accused
shall adduce the evidence to prove his case beyond reasonable doubt and
not merely by preponderance of probability.
The presumptions of the above kind are found in several statutes.

Such presumptions are unjust because of the draconian nature and
requirement of higher degree of proof of innocence by the accused.
Unmistaken rule of the common law is that when the accused is
burdened to prove any fact the degree of proof is always on
preponderance of probabilities and it is not beyond reasonable doubt.
Requiring the accused to meet the high standards of degree of proof is
contrary to the values of criminal justice system of democratic country
and a clear threat to doctrine of presumption of innocence. The
presumptions in the Statute books, in the form similar to sections 29 and
30 of the P.O.C.S.O Act violate the constitutional and human rights of
the accused. The situation created by such presumptions coerce the
accused to give evidence in the court and the cardinal principle of
evidence in criminal cases is that the accused is a competent witness and
cannot be a compelled witness, Section 315 of the Code of Criminal

Procedure, 1973, (hereafter Cr.P.C) which declares the accused as
competent witness has specific riders that he shall not be called as
witness except on his request in writing and his failure to give evidence
shall not be a subject of any comment by any parties or the court. Once
the accused chooses to be a witness, in view of section 132 of the
Evidence Act, he is not excused from answering any question on the
ground that the answer will criminate him though it was provided that
such answer shall not be proved against him in any criminal
proceedings. The reverse burden clauses in the modern statutes are not
compatible with the constitutional right against compelling a person to
self incrimination guaranteed under Article 20(3) and statutory right
guaranteed in the proviso to section 315 of the Cr.P.C and section 132 of
the Evidence Act. Inevitable conclusion that follows is that reverse
burden clauses seriously impair the substantial rights of the accused.
It is appropriate to quote the 180th Report of Law Commission of

India here. The commission said thus:
“The right to silence has various facets. One is that the burden is
on the State or rather the prosecution to prove that the accused
is guilty. Another is that an accused is presumed to be innocent
till he is proved to be guilty”47
Law Commission of India has recognised presumption of innocence

as one of the facts of the right of the accused to be silent, a derivative of
Article 20(3) of the constitution. Though, the apex court in India more
than once held that right to be silent is not an absolute right,48 the status
of this right in Indian jurisprudence is on par with a constitutional right.
Therefore reverse burden clauses which compel and coerce the accused
to lead substantial evidence to prove his innocence are a serious threat to
fair trial rights of the accused.
47
Law Commission of India, 180th Report on Article 20(3) of the Constitution of India
and the Right to silence, (May, 2002) p. 5
48
See Noor Aga v State of Punjab, 2008 Crl. J 1172
The other justifications for reverse burden clauses in the criminal

statutes stated in Part-III of this article are also not indisputable. It may
be true that in certain circumstances it is difficult to prove certain facts
and a presumption of certain facts by the court is needed. But in all such
cases the initial burden shall be on the prosecution to prove the
important facts and there shall be severance of facts which can be
proved and those which cannot be proved. This can be demonstrated by
the presumption under section 113 B of the Evidence Act. Law relating
to “dowry death” requires that presumption can be drawn only when the
marriage, unnatural death and subjection of the woman to cruelty are
proved with sufficient evidence. In Shamlal v State of Haryana,49 the
Supreme Court has laid down the rules as to when presumption under
section 113 B of the Evidence Act can be drawn, thereby slightly
restricting the scope and the strength of the presumption. Though it is
not expressly stated, the apex court has read down the rigour of the
mandatory presumption under section 113 B of the Evidence Act.
Therefore, even with regard to the facts, proof of which is difficult, there
is no need of reverse burden clause and perhaps it is enough if the law
allows drawing of presumption only when all other relevant facts are
proved.
Often Section 106 of the Evidence Act is highlighted to support the

reverse burden clauses. The rule in the above section was explained with
the help of an illustration50 of a person travelling on a railway without a
ticket. According to this section the burden is on the person to prove that
he had a ticket. This illustration simplifies the problem. The person had
he purchased the ticket, can show the ticket or he can even adduce the
evidence of the ticket vendor to prove that he purchased the ticket. If the
vendor deposes that he does not remember, the accused as purchaser of
the ticket, it is difficult for him to prove that he purchased a ticket and it
49
AIR 1997 SC 1830
50
Illustration: (b) A is charged with travelling on a railway without a ticket. The
burden of proving that he had a ticket is on him.
was lost. Since it is a simple case of ticket less travelling the person
accused has the ease of payment of fine. Assume that while A and B
were travelling together in car on a highway and B accidentally
consumed an odourless poisonous liquid and suffered instantaneous
death. When A is prosecuted for murder of B by poisoning him to death,
the fact of accidental consumption of poison is especially within the
knowledge of A. What are the means open for him to prove that he is not
responsible for the death of B? In such circumstances it will be alright if
the prosecution is required to prove that there is enmity between A and
B and A had a motive to kill him. But if the burden of proof is on A to
prove that the he had no enmity with B and the death of B is due to
accidental consumption of poison, it is almost a task impossible.
Supreme Court has considered the purport of section 106 of the

Evidence Act in Shambunath Mehra vs. State of Ajmer,51 and observed
as follows:
“Section 106 is certainly not intended to relieve it of that duty.
On the contrary, it is designed to meet certain exceptional cases
in which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish facts
which are “especially” within the knowledge of the accused and
which he could prove without difficulty or inconvenience. The
word “especially” stresses that. It means facts that are pre-
eminently or exceptionally within his knowledge. If the section
were to be interpreted otherwise, it would lead to the very
startling conclusion that in a murder case, burden lies on the
accused to prove that he did not commit the murder because who
could know better than he whether he did or did not.”
Therefore there cannot be any absolute principle to require a person to

prove something which the other party alleges to be in his special
knowledge.
51
AIR 1956 SC 404
Seriousness of offence and threat to the society, have been

advocated as sufficient reasons to do away with presumption of
innocence. An offence is considered serious only when it becomes a
threat to the society and once the offence was committed, loss suffered
by society because of the commission of crime cannot be recouped. In
many cases threat is only perceived and on perceived threats accused
cannot be denied fair trial rights. The argument based on threat
perception is imaginary and cannot be accepted. It can be noticed that
reverse burdens are created not only in respect of serious offences but
also for regulatory breaches and non serious offences like dishonour of
cheque cases punishable under section 138 of Negotiable Instruments
Act, 1881.
Indian Supreme Court has considered the threat posed by the

reverse burdens in criminal justice administration. In Krishna Janardhan
Bhat v Dattatreya G. Hedge 52 the Supreme Court has asserted that
presumption of innocence is a human right and therefore, reverse burden
clauses shall be delicately balanced. In Noor Aga v State of Punjab53 the
Supreme Court, reading the provisions of international instruments into
Indian Law held that “Placing persuasive burden on the accused persons
must justify the loss of protection which will be suffered by the accused.
Fairness and reasonableness of trial as also maintenance of the
individual dignity of the accused must be uppermost in the courts.”54
Thus presumption of innocence needs to be safeguarded and sustained

and shall be recognised as a fundamental right with just exceptions.
V.Conclusion
Doctrine of presumption of innocence is a value of criminal
justice system, sustenance of which is necessary for protecting
52
Krishna Janardhan Bhat v Dattatreya G. Hedge 2008 Crl Lj 1172, See Vishnu Dutt
Sharma v Smt. Daya Sapra MANU/SC/1101/2009
53
Noor Aga v State of Punjab 2008(9) SCALE 68.
54
Ibid
democratic values in our country. Reverse burden clauses are only

rules of necessity. In case of conflict between a cherished value and
necessity, the former shall be given precedence. However, it became
routine for legislations to pass laws containing reverse burden clauses,
ignoring the importance of doctrine of presumption of innocence.
Adding fuel to it, the degree of proof required to prove defence of the
accused is stepped up from preponderance of probabilities to proof
beyond reasonable doubt. Reverse burdens are not restricted to serious
offences and it is extended to most trivial offences as well as regulatory
breaches. This trend is to be arrested and the reverse burden clauses
which threat the presumption of innocence and the other rights of the
accused shall be reversed at the earliest. The Supreme Court of India
may require seizing the earliest opportunity to declare that presumption
of innocence is part and parcel of Article 20 (3) of the Indian
Constitution.

Reverse Burden A Threat To Presumption o

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| i |NPA Criminal Law Review

NPA Criminal Law Review - 2016

NPA Criminal Law Review

Mode of Citation: NPA Cr L R

Vol. 3 No.1 2016

68 RR Basic Course 2015-16

A publication of the Sardar Vallabhbhai Patel National Police Academy,

Smt. Aruna Bahuguna, IPS

Shri K. Pattabhi Rama Rao

NPA Criminal Law Review

Vol. 3 No1 2016

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NPA Criminal Law Review

Vol. 3 No.1 2016

2 People Friendly Police 18

3 CCTNS - Potential and Challenges 36

4 Reverse Burdens: A Threat to Presumption of Innocence 47

5 The Victim Acquitted Me! 75

6 Analysis of the Prohibition Law in Bihar 88

7 Establishing the Rule of Law in Action Against Non State 99

8 Police Recruitment and Criminal Antecedents 107

9 General Lapses in Police Investigation 111

11 Investigating Cases of Atrocities Against Scheduled Castes 147

12 Plea Bargaining in India –Evaluation and Challenges 169

13 Soumya Rape & Death Case: Some Unanswered Questions 177

14 Can Forensic Medicine Help in Better Justice Delivery? 186

15 An Analysis of the Offence of Sedition 203

16 Water Rights and Legal issues 212

17 Beyond Borders: Extradition – History and the 223

Barun Purkayastha, Bharat Reddy, Shwetank Mishra

18 Intermediaries under Indian Cyber Law with a Focus 230

REVERSE BURDENS: A THREAT TO

K. Pattabhi Rama Rao and Veena Bharti1

general application in all the criminal cases, was soon approved as

Apart from recognising the principle of presumption of

“irrebuttable Presumptions.” The doctrine of presumption of innocence,

Normative structure of the doctrine of presumption of innocence

II. Presumption of Innocence: As a Value and a Right

Though criminal justice during British Indian period was

Indian Evidence Act, 1872, (hereafter Evidence Act) often

In Queen- Empress v Ramana,10 a judgment dated 20th February