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Reverse Proof of Burden: Necessary Evils of the Law of Evidence

We have grown up hearing the well known adage – innocent until proven guilty. But what does it actually mean? It simply means that if you accuse someone of an offence; it’s the prosecution’s duty to prove it. The accused doesn’t have to prove his innocence. It is the foundation of the criminal justice system.

But there are few exceptions to this fundamental tenet of criminal law – the Reverse Burden clauses. Reverse burden clauses are a 180-degree departure from the well known saying – innocent until proven guilty, and they put the burden of proof on the accused, instead of the prosecution. For example, section 304-B of the Indian Penal Code, 1860 and section 35 and 54 of the Narcotic Drugs & Psychotropic Substances Act, 1985 contain reverse burden clauses.

Need for reverse burden clauses is felt where crimes gravely affect and harm society at large. They are such peculiar crimes which can not be proven in an ordinary way. Therefore, in such special cases, it becomes necessary to release the burden of proof of the prosecution. The Supreme Court of India in P.N.Krishanlal v. Govt. of Kerela-1995 SCC Crl. 466 declared that presumption of innocence is not a constitutional guarantee. Therefore, it can be dispensed with by legislative imperatives. However, such clauses are onerous on the accused and may also lead to unrealistic high rate of conviction.

In practical litigation, in case of reverse burden clauses, the defense lawyer has an uphill task of proving the accused innocent. But in case of a dowry-death, a silver lining for the defense lawyer is that the initial burden of proof rests on the prosecution. Therefore, the prosecution would have to prove the following – a) death of woman was caused by burns, bodily injury or otherwise than under normal circumstances b) death was caused within seven years of marriage c) soon before death she was subjected to cruelty/harassment by her husband or relative of her husband d) death was caused in connection with demand of dowry and cruelty. If the prosecution is not able to discharge this initial burden of proof, the defense lawyer can build a good defense for his client. But, on the contrary, if prosecution is able to prove its initial burden of proof, Section 113-B of the Indian Evidence Act, 1872 comes into play and there is a presumption of law against the accused/husband for having caused dowry-death. Now, it is for the accused to prove that he is innocent beyond reasonable doubt.

A practical question is that in the real world settings, what should a defense lawyer of dowry death accused do to build his defense and prove his innocence. He must check the fact whether the first allegation of the wife mentioned any cruelty against the husband or other relatives or not. For example, if the allegations have been levelled in a subsequent dying declaration, it may suggest a possibility of false accusation due to strained relationship. Similarly, if the husband also received burn injuries while trying to save his wife from burning, it may render doubt on the case of the prosecution. But such facts and circumstances would vary from case to case.

Undoubtedly, the reverse burden clauses curtail the liberty of the accused and cause huge burden on him to prove his innocence beyond reasonable doubt. But for certain offences the legislature in its wisdom has carved an exception where the accused has to rebut the presumption of law against him.

*The author is a practicing lawyer at the High Court of Delhi and can be contacted at

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