Benefit of doubt

 

BENEFIT OF DOUBT

 

1) The cardinal Principle of criminal law is that the prosecution has to prove its case, beyond all reasonable doubts. So, heavy duty is cast upon the prosecution to prove the charges leveled against the accused beyond all reasonable doubts. No doubt, even though the charges are grave, still the duty to prove the charges is not shifted from the prosecution to the accused. The prosecution is heavily burdened, but special provision for presumption has been coined in some Special Acts like, The Protection of Children from Sexual Offences Act, 2012, The Prevention of Corruption Act, 1988 and Negotiable Instruments Act, 1881. Consequently, there is a confusion whether the general and cardinal Principle of Criminal Law regarding the burden of proof is shifted to the accused or remains as such. Incidentally another question also arises that, whether the accused has to prove his innocence or he has to simply rebut the presumption.

2) The presumption in criminal law in general is the presumption of innocence of the accused. The accused is presumed to be an innocent, till the guilt is proved.

3) Hence, an attempt is made to discuss “Benefit of Doubt” and Legal presumptions, by listing out the penal provisions which speak about the presumption in the Indian Penal Code and

 

BENEFIT OF DOUBT Vs PRESUMPTION

AM I NOT ENTITLED TO BENEFIT OF DOUBT? - VOICE OF AN ACCUSED

I.INTRODUCTION:-

This topic can be approached on the following sub-headings;

1) History of Theory of Benefit of Doubt.

2) Principle of appreciation of evidence

3) Legal Presumption

4) Discussion on special laws

5) conclusion

 

1) HISTORY OF THEORY OF BENEFIT OF DOUBT.

APPLICATION OF ARTICLE 21 OF CONSTITUTION OF INDIA

For easy reference Article 21 is extracted hereunder;

Art.21.Protection of life and personal liberty.

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The famous Tamil couplet saying;

That is what ever seen by you, need not be truth and what ever heard by you, need not be truth. What is elicited through proper enquiry shall only be truth.

  

 

To discern the truth in everything, by whom so ever spoken, is wisdom.It is needless to say that 100 criminals may escape from the clutches of law, but not a single innocent be punished.

(i) The right guaranteed under the Article 21 of the Constitution of India is the fundamental right. The right to life and personal liberty can be curtailed only by the procedure established by law.

(ii) The criminal prosecution is not said to be violative of Article 21 of the Constitution of India, because the liberty of an individual can be curtailed under the procedure established by law. So, the prosecution has to prove the charges leveled against accused beyond all reasonable doubt. Hence, the prosecution is expected to adduce legal evidence in order to prove the charges. It is not the duty of the defence simply to elicit doubts, but the doubts must be reasonable one in order to reject the evidences adduced by the prosecution and to get the benefit arising out of said benefit of doubt.

(iii) A fact can be proved before the Court of law either by oral evidence or by documentary evidence but strictly the evidence must be relevant to “Facts in Issue” or ‘Relevant Fact” and no other evidence can be admitted into evidence.

(iv) The accused is summoned by the criminal Court only to answer a charge. What has to be proved by the prosecution is the charges framed against the accused. The prosecution is expected to prove the disputed facts through oral and documentary evidence. Section 3 of Indian Evidence Act, 1872 speaks about fact. The oral and documentary evidence has been dealtwith in Section 4 of Indian Evidence Act, 1872.

(v) The prosecution has to adduce evidence in order to prove a fact. Evidence can be given strictly in terms of Sec.5 of Indian Evidence Act. “Sec.5. Evidence may be given of facts in issue and relevant facts- Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”

(vi) The investigation in a criminal case will begin as soon as First Information Report is registered. FIR will logically end with final report U/s. 173 (2) of Cr.P.C. The Learned Judge/The Judicial Magistrate has to take cognizance of offences U/s. 190 of Cr.P.C when the final report is placed before him. The Trial in a criminal case will begin as soon as charges are framed. After the recording of evidences on the side of the prosecution is completed, the accused has to be questioned U/s. 313 (1) (b) of Cr.P.C, 1973.

All the incriminating evidences have to be put to the notice of the accused U/s. 313 (1) (b) Cr.P.C, 1973. Thereafter accused has to enter his defence. The questioning U/s. 313 (1) (b) Cr.P.C, 1973 is mandatory and not a mere formality. The violation will be taken as a serious concern by the appellate court, since the same is not an empty formality.

(vii) The accused cannot file written statement as in Civil case stating his defence in writing before the Learned Trial Judge. It is pertinent to point out here that the defence can be read from the cross examination of the witnesses, since there is no rule of pleadings in criminal law. The accused may examine witnesses on his side and also produce documentary evidences in support of his defence. The accused can also examine himself as a witness after getting the permission from the Learned Trial Judge U/s. 315 Cr.P.C. An accused is a competent witness to give evidence on oath in disproof of the charges made against him.

(viii) A vital duty on the part of the Learned Trial Judge is appreciation of evidence. The Learned Trial Judge has to weigh the evidence in a golden scale adduced by both the parties before pronouncing the judgment. The Learned Judge has to determine whether the accused is guilty or not. Sec. 239 and 248 of Cr.P.C speak about the judgment of acquittal or conviction.

(ix) It is relevant to state that neither the principles of appreciation nor the principle of benefit of doubt has been defined in the code of Criminal Procedure, 1973. The theory of benefit of doubt has been followed in English Law and we have imported the same from English law. We followed the said Principle as settled by English Court Reported in

Woolmington Vs Director of Public Prosecutor - 1935 AC 462 = (1936) 25 Crl. PPR 72

Miller Vs. Minister of Pensions - (1947) 2 All. E.R 372.

“…. the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to determine conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; “We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not”.

K. Gopal Reddy Vs. State of Andhra Pradesh - AIR 1979 SC 387

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt….. if, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”

Khem Karan and Others Vs The State of U.P and another – AIR 1974 SC 1567 = 1974 SCR (3) 863;

“Neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of Justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.”

So, as decided by the Hon’ble Apex Court in the above case in order to get the benefit of reasonable doubt the doubt elicited by the defence should be reasonable cutting the very root of the case and not on all doubts.

(x) It is needless to say that the parameter or principle for appreciation of evidence by the criminal court in India is the reasonable benefit of doubt. Thus, the prosecution has to prove the charges leveled against the accused beyond all reasonable doubts. There is no straight jocket formula for the principle reasonable doubt. There must be a balance to accept the evidence of particular witness.

(xi) The prosecution is expected to adduce legal evidence and the Trial Court can presume a fact when the law permits i.e., court can act upon (1) Legal Evidence & (2) Legal Presumption.

2) PRINCIPLES OF APPRECIATION OF EVIDENCE – BY CRIMINAL COURTS;

There are two types of Criminal cases in institution of cases.

i               (i) Institution of cases on police report – 2(r) Cr.P.C

 

i               (ii) Institution of cases otherwise than on police report 2(d) Cr.P.C

 

Sec.2(h) of Cr.P.C – “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (Other than a magistrate) who is authorized by a magistrate in this behalf;

Sec.161 (3) Cr.P.C – The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records;

Sec.162 Statements to police not to be signed – use of statements in evidence – (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

According to Sec. 2(h) Cr.P.C investigation means collection of all evidences. So a doubt arises that, whether the statement of witnesses and confession of an accused recorded by the investigation officer can be called as evidence. Yes, they can be classified as evidence for the purpose of taking cognizance of offences and how to use the same has been given in Sec. 162 Cr.P.C and Sec. 27 of Indian Evidence Act.

It is to be noted that though the materials collected by the investigating officer during investigation are evidences but the same cannot be admitted in evidence during trial. The bar created U/s. 162 of Cr.P.C to use the statement of witnesses recorded U/s.161(3) of Cr.P.C is only for criminal Trial and there is no bar to use the same in an inquiry by the criminal court for the purpose of disposal of property and there is no bar for the civil court and writ court to use the same. The following judgment is on the point.

Dr. R. Muthukumaran and another Vs. Rameshbabu and others DB – 2017(3) CTC 603 -

Use of statement given to police officers – bar U/s. 162 – no bar for civil court or writ court to rely upon statement – bar under Cr.P.C would apply only for criminal proceedings.

“Khatri and others V. State of Bihar and others, 1981 (2) SCC 493 –

“Section 162 has been enacted for the benefit of the accused. The bar created by this section is a limited one and has no application if the statement made before a police officer in the course of an investigation under chapter XII is sought to be used in any proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an offence other than that which was under investigation at the time when such statement was made. Thus, the section does not apply to a civil proceeding or a proceeding under Articles 32 or 226 and as such a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Article 32 or 226 provided it is relevant under the Evidnce Act.”

It is pertinent to point out that statement recorded under section 161(3) Cr.P.C confession of an accused and in sometimes statement of witnesses may be considered under section 32 of Indian Evidence Act. All the above three are collected during investigation by the police. Hence, the admissibility of the above documents is to be discussed here.