About 304b
Querist :
Anonymous
(Querist) 18 September 2011
This query is : Resolved
the burden of proof lies on who's side?
is it one defence or prosecution?
Guest
(Expert) 18 September 2011
it is always on the defence side to disprove the case beyond the doubts and it always lies on the defence side as u/s 105 of indian Evidence Act
Raj Kumar Makkad
(Expert) 18 September 2011
I completely disagree with Bishnoi. It is prosecution side which has to prove its case against the accused as everyone facing trial is innocent until alleged crime is proved by prosecution beyond any reasonable ground.
If the reply of Bishnoi becomes the base of criminal jurisprudence in India, there is no need for any trial of any case and pendancy of all criminal cases may be eliminated within a week.
Guest
(Expert) 18 September 2011
Dear Shri Makkad,
No doubt, Sec.101 of IE Act stresses for the burden of proof on the prosecution, but Sec.113B of the same Act specifies in dowry cases that the Court has necessarily to presume that accused has caused the dowry death. The said section lays down as under:
"113-B. PRSUMPTION AS TO DOWRY DEATH.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
FURTHER, Comments below section 304B provide explanation on the burden of proof, as follows:
"The prosecution under section 304B of Indian Penal Code cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon before her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act, 1961. Thus, there are three occasions related to dowry, i.e., before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within ambit of “dowry”; Satvir Singh v. State of Punjab, AIR 2001 SC 2828: (2001) 8 SCC 633."
SO, SPECIALLY IN THE CASE OF SEC.304B (Dowry Death), THE BURDEN OF PROOF SHIFTS ON THE ACCUSED.
I would like to have your valuable opinion on the aforesaid views of mine.
Guest
(Expert) 18 September 2011
Dear Sachdev,
I am afraid, case under sec. 304B does not fall within the purview of proof about exception under sec.105 of the IE Act. You may therefore like to review your reply in the light of my point of view, as addressed to Shri Makkad above.
Devajyoti Barman
(Expert) 18 September 2011
In criminal case the onus of proof is first upon the prosecution to prove the guilt and once that is done then it is shifted to the defence to prove its innocence.
So both has the onus of proof but initial onus is upon the prosecution only.
kuldeep kumar
(Expert) 18 September 2011
accused has just to make a partial defence the ball shifts to prosecution side save all just exceptions
prabhakar singh
(Expert) 18 September 2011
The edifice of the Indian Criminal justice administration system is based on certain fundamental maxims and beliefs. These maxims have been indoctrinated in the system to such depth that they have in fact led to the emergence of various presumptions which envelop to a criminal trial even before it initiates. One of these is the presumption of innocence of the accused, requirement of proof beyond reasonable doubt in order to establish the guilt of the accused etc.
Of course exceptions are every where so here also they may be found.
Guest
(Expert) 18 September 2011
i am sorry experts and queriest. it is the side of prosecution which will prove its case beyond the reasonable grounds i agree with Mr. Makkad and thanks Mr. Makkad for teaching me i am sorry again
prabhakar singh
(Expert) 18 September 2011
we know it was your typographical error and now a generousness.
SAANJAAY GUPTAA
(Expert) 19 September 2011
Its duty of prosecution to prove the case with the help of investigation and witnesses produced before the court and no court presumed an accused guilty before the judgement, accused may also bring witnesses and or relevant evidence before the court to prove his innocence but its burden of prosecution to prove its case beyond all doubts.
Koumarish Bhattacharya
(Expert) 21 September 2011
With certain exceptions, the Indian Legal system provides that the accused is innocent till he is proved guilty by the prosecution. The defence may adduce its evidence, but it is primarily the prosecution who is to prove its story.
