Report No. 185

Section 105

The section deals with 'Burden of proving that case of accused comes within exception'. It reads as follows:

"105. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

There are three illustrations below section 105. They read as follows:

"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control.

The burden of proof is on A.

(c) Section 325 of the Indian Penal Code (XLV of 1860) provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.

A is charged with voluntarily causing grievous hurt under Section 325. The burden of proving the circumstances bringing the case under Section 335 lies on A".

Case law lays down the following principles.

(1) The law under Section 105 settled by the decision of the Supreme Court in Dahyabhai v. State of Gujarat: AIR 1964 SC 1563. The decision points out that the burden of proof is on the prosecution to prove the guilt of the accused (Woolmington v. D.P.P. 1935 AC 462);

(2) But, where the accused pleads any special defences open to him, the burden lies on the accused and he can prove the defence by 'preponderance of probabilities' (as in civil cases) and need not prove his defence beyond reasonable doubt;

(3) 459 he can rely on oral or documentary evidence, presumption or admissions or even on prosecution evidence if it satisfies the tests of a 'prudent man';

(4) the evidence so placed by the accused even if it is not sufficient to discharge the burden placed on him under Section 105, if it raises a reasonable doubt in the mind of the Judge as regards one or other of the necessary ingredients of the offence itself, it is sufficient for him. The proposition (4) was reiterated in Yogendra Morarji v. State of Gujarat: AIR 1980 SC 660 and in Periasami v. State of T.N.: 1996(6) SCC 457 where the above rulings were followed.

While on the question of burden of proof in criminal matters, cases of pleas of 'insanity' have received special consideration. In the 69th Report (see paras 46.14 to 46.17) reference was made to McNaughten's case (1843) 10 cl. & Fn 200 and the McNaughten Rules which came to be formulated on the basis of that case and from latter cases.

While the English law is that the burden to prove insanity would remain on the defence on basis of balance of probabilities, reference was made in the 69th Report to the law in most States in the United States, to place the burden on the prosecution to prove 'absence of insanity', quoting Glueck, Mental disorder as a Defence in Criminal Law p.41. That was also adopted in a draft Model Penal Code in 1948 (See Grunhut, p. 436). That too is the rule on the Continent (See Peter Clark, 'The Insanity Defence in Pennsylvania (Fall 1971) 45. Temple Law Quarterly, 63).

It is stated (see para 46.10) in the 69th Report that in one half of the States in USA, the burden is placed on the prosecution to prove defendant's 'sanity', beyond reasonable doubt, while the other half (including Pennsylvania), require the defendant to prove 'insanity'. It is said the recent trend is in favour of the former (Quoting, Weihofenon Mental Disorder as a Criminal Defence, 1954, pp 212-13, 238 and McCormick, Evidence, Section 321). Reference was made to Davis v. United States: (1959) US 469 & other cases and In re Winship (1970) 397 US 358.

In para 46.18, the 69th Report noticed that in Australia the burden of proving insanity is on the accused and he can do so by establishing a balance of probability and the view of the Australian High Court in Sodeman v. R (1936) 55. C.L.R. 192 (228) was affirmed by the Privy Council in R v. Sodeman 1936 (2) All ER 1138 (PC).

English law continues also to be the sam.- see R v. Carr-Briant: 1943 KB 607; R v. Brown (1971) 55 Cr. App/ Re[ 478 (CA); R v. Swaysland: The Times: April 15, 1987 CCA) (see Phipson, 15th Ed., para 4.33).

We may refer to more literature on the subject:

(i) P. Roberts: 'Taking the Burden of Proof Seriously (1995) Crl. Rev. 783 (785-7)

(ii) T.H. Jones: 'Insanity, Automatism, and the Burden of Proof on the accused' (1995) 111 L.Q.R. 475.

(iii) T.H. Jones: 'Insanity and the Burden of Proof on the accused: A Human Rights Approach' in the book 'Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (1997).

The above articles are referred in the book on Evidence (Texts and Materials) by Andrew Choo, 1998 (pp. 42-43).

The author also states as follows: "The Supreme Court of Canada has been confronted with the issue of whether the presumption of sanity embodied in the Canadian Criminal Code violated the presumption of innocence guaranteed in the Canadian Charter of Freedom. The majority of the Supreme Court held that it did, but that the placing of the legal burden on the accused constituted a reasonable limit within the meaning of Section 1 of the Charter."

The author also states (p.43) that 'where an accused charged with the murder raises the defence either of insanity or of diminished responsibility, Section 6 of the Criminal Procedure (Insanity) Act, 1964 of UK permits the prosecutor to adduce evidence to prove the other evidence. In this situation the legal burden of proof falls on the prosecutor. In a similar vein, Section 4 of the same Act allows the issue of unfitness to plead and stand trial to be raised by the defence or by the prosecutor, and where raised by the prosecutor, the legal burden of proving the issue falls on the prosecution. (R v. Robertson) 1968(1) WLR 1767.

The author also refers to 'The Presumption of Innocence in English Criminal Law' by A. Ashworth and M. Blake 1(1996) Criminal Law Review 306 (315).

Phipson (1999, 15th Ed., para 4.07) says that where the accused raises a plea of insanity in defence, the persuasive burden lies on him to prove insanity. (refer to McNaughten's case, Woolmington case, Sodeman v. R and R v. Carr-Briant already referred to by us)

The author says (para 4.08) that there are cases in which both insanity and the defences such as diminished responsibility are raised (Bratty v. A.G. (Northern Ireland) 1963. A.C. 386 (Automatism). Thus when the defendant raises the issue of either insanity or diminished responsibility on a charge of murder, the prosecution is allowed to adduce evidence to prove the other of those issues." (R v. Grant (1960) Crl.L. R 424.

Whatever be the position elsewhere, the law in India continues to be what the Supreme Court laid down in 1964 in Dahyabhai's case and it continues to be good law today as declared in Periasami v. State of TN 1996(6) SCC 457. Dahyabhai was applied in State of HP v. Gian Chand 2001(6) SCC 71 at p 83; Laxman v. State of Karnataka.

The 69th Report drafted a special provision in regard to insanity defence (see para 46.35) not to reverse the law in Dahyabai but only to reaffirm that the burden lies on the accused and he could discharge it "if there is evidence of any fact creating a reasonable doubt about the sanity of the accused". But, later in para 46.36, the Commission did not proceed further as some of the then Members felt that even this limited relaxation may affect the operation of Section 105 in case of other defences.

Having examined the matter in depth, we agree that it is not desirable to make any relaxation so far as the defence of insanity is concerned and we agree with the 69th Report that no amendment is called for.