Standard of Proof of Rebuttal in Dowry Death Cases 

The Supreme Court recently in Sher Singh v. State of Haryana, (2015) 3 SCC 724, while interpreting Section 304B and 113B of the Indian Evidence Act, has held :

  1. The Prosecution can discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities. (By ingredients it is meant the foundational facts necessary to invoke the presumption; Elements like : Death within 7 years, unnatural character of death and some proximate link between death and cruelty);
  2. Once the presence of the concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon the accused and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. 
  3. Keeping in perspective that Parliament has employed the amorphous pronoun/noun “it” (which we think should be construed as an allusion to the prosecution), followed by the word “shown” in Section 304B, the proper manner of interpreting the Section is that “shown” has to be read up to mean “prove” and the word “deemed” has to be read down to mean “presumed”.

Comment : 

This is a rather rigorous standard of proof for an accused to discharge, especially having regard to the fact that a ‘negative’ (I did not do it!) is always more difficult to prove than a ‘positive’ (He did it!).

It is interesting to note that Section 35 of the NDPS Act had a similar provision.

It read as follows :-

Section 35 : Presumption of culpable mental state. (1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the 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.

Explanation. -In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

There are similar provisions in Customs/Income Tax Act and even POCSO.

The Supreme Court had the occasion of appreciating this provision in  Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821]. A three judge bench of the SC somehow read down the provision(as opposed to holding it unconstitutional) and diluted its rigours by holding that such a burden can be discharged by the accused by exposing infirmities and punching holes within the case of the prosecution and even without leading any defence evidence himself.

It will be interesting to note how the judgment in Sher Singh (2015) will play out in actuality in courts and how the accused persons are able to discharge this rather rigorous standard of proof, and whether the observations of the Hon’ble Supreme Court in Abdul Rashid will affect the interpretation advanced now by the Supreme Court in Sher Singh. On the

PS : The judgment in Sher Singh has been uphled by a three judge bench of the SC in V.K.Mishra v. State of Uttarakhand (2015) 9 SCC 588 and also two judge bench decisions in Nagaraj v. State (2015) 4 SCC 739 and Ramakant Mishra v. State of UP (2015) 8 SCC 299.  

Students should go through the judgment in Ramakant Mishra v. State of UP (2015) wherein the SC found fault with the accused not entering the witness box as a defence evidence and drew an inference out of it. The validity of such an approach has to be examined in view of second proviso to S.315 of the CrPC, which categorically lays down that the accused not entering the witness shall not be made subject of an adverse inference. 

PSS : In a latest development, the SC in BAIJNATH & OTHERS v. State in the latest decision on 18.11.2016 in a dowry death case, has not taken note of the above judgments and held : that the burden of the prosecution to prove the foundational facts is beyond reasonable doubts  and not preponderance of probability. Only once the same are proved on the anvil of beyond reasonable doubts, would the presumption be attracted. Students should examine the binding effect of this decision in view of previous discussion.

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