Report No. 185
In the 69th Report, in Chapter 45, the Commission considered section 101 and came to the conclusion that no amendments are called for so far as section 101 is concerned (see para 45.18).
But, the Commission referred to the broad principle in civil cases relating to the burden of 'establishing a case' or the 'legal burden (or persuasive burden', which never shifts and the 'evidentiary burden' which shifts during the trial from one side to the other. In a criminal case, the burden is always on the prosecution to from that the accused is guilty, though there may be special statutes requiring the accused to prove certain facts whenever the prosecution has proved certain facts.
These principles being well known and basic, the Commission does not suggest any amendment.
The section again lays down an elementary proposition and we agree with 69th Report (see para 45.19) that section 101 does not require any amendment.
The section does not require any amendment. But in the illustration, the brackets and letter "(a)", can be dropped.
In the 69th Report, in para 45.22, it was recommended that no change is necessary in section 104 and we agree with that recommendation.
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.
We further agree with para 47.28 of the 69th Report that section 106 does not require any amendment.
The 69th Report also pointed out in para 48.6 and 48.7 that there is no need to reduce the period. The longer the period, the lesser the strength of the presumption.
But in para 48.10, the Commission recommended addition of a proviso giving a discretion to the Court where it appeared to the Court likely that the person concerned was involved in an accident or calamity. The proviso below section 107 as recommended in para 48.11 of the 69th Report reads as follows:
"Provided that where it appears to the Court from the evidence that the person concerned had been involved in an accident or calamity in circumstance which render it highly 902 probable that the accident or calamity caused his death, the Court may, for reasons to be recorded, direct that the provisions of this section shall not apply."
We agree that a proviso in the manner referred to in para 48.11 of the 69th Report as extracted above can be added below section 107 as it now stands.