Report No. 242

6. Burden of proof

6.1 Further, shifting the burden of proof on the basis of mere accusations of involvement in the serious offence of murder etc or abetment thereof is not desirable. Such a move will be against the cardinal principles of jurisprudence accepted and absorbed into our criminal justice system. If burden of proof has to be shifted in such a case, logically, it will have to be done in a large number of other heinous crimes.

We find neither logic nor rationale in treating the accused in the so-called honour killing cases as a separate class in the matter of application of doctrine of burden of proof. The difficulties in proof before a court of law may not by itself be a legitimate ground to deviate from the well established canons of criminal jurisprudence. The evidence may not be forthcoming in many cases of ghastly murders and barbaric killings or the witnesses may be scared to speak against notorious criminals.

A holistic approach is called for and any attempt to drastically expand the rigour of criminal procedure to cope up with ad hoc situations may be counter-productive. The introduction of such a drastic provision will be out of tune with the criminal justice system and the salutary principles we have accepted as part of it. As an alternative to this, the Commission is of the view that an appropriate presumption of intention to commit the prohibited acts in clauses 3 and 4 of the proposed Bill, can be legitimately drawn against a member of an unlawful assembly.

Having regard to the natural course of human conduct and the authoritarian mindset of Panchayatdars, it is reasonable to think that they would not be content with merely taking a decision condemning the so-called objectionable marriage, but they would like to go further and give effect to the decision by acts of coercion and harassment if necessary. The offensive acts done in the aftermath of the decision cannot be dissociated from their role and hegemony.

The presumption to some extent solves the problem arising from the difficulty in the identification of actual role that may be played by one or more members of the assembly and in securing evidence to implicate the guilty. In such a situation, the presumption as envisaged by clause 6 will assume a significant role.

6.2 Penal law handles proof of facts by direct and circumstantial evidence. Principles of inference and logic are involved in both modes of proof. Statutes relating to evidence have engaged themselves in grappling with problems of natural non-availability or paucity of evidence in certain offence situations. Presumptions have usually emerged as a tool of logic to fill these gaps. Presumptions state cause-effect relationships in such circumstances.

Care must, however, be taken to ensure that the causal link is not too remote or too thin. Presumptions generally do not affect the position of burden of proof but only shift the burden of evidence or the burden of persuasion. The presumption which is eminently suitable in the context of the present problem is the one incorporated in Section 6 of the proposed Bill.

It raises a presumption to the effect that the participants in unlawful assembly intended to commit and abet the offences punishable under Section 3 and 4 of the Bill in order to carry out the illegal decision taken by them. Such presumption will supply an important link in the chain of evidence. The presumption proposed to be introduced is as follows:

Every person participating in an unlawful assembly, shall be presumed to have also intended to commit or abet the commission of offences under Section 3 and 4 of the Act.

6.3 Thus, in respect of the overt acts under Sections 3 and 4, this presumption would be attracted. On a fair balance of various conflicting considerations, we feel that the presumption as above would be appropriate and effective.

6.4 In the matter of burden of proof, the Commission feels that the analogy sought to be drawn from the provisions of the Commission of Sati (Prevention) Act, 1987 is not appropriate for more than one reason. 'Sati' is a barbaric, deeply entrenched social evil which was prevalent in certain parts of the country. The magnitude and seriousness of that evil cannot be compared to the problem on hand. More important, the offence of 'Sati' always remained an open affair with all the rituals and ceremonies attached to it and the persons actively participating therein could be identified without difficulty. The accusations in such cases are based on solid evidence.