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(2) ie having sufficient evidence to prove each element of the action. It is not sufficient to include only Section 498A as the punishment is relatively light. 18 Now, to the case in hand. It has been contended before us, as was also unsuccessfully argued before both the Courts below that there was a 'delay' in lodging the FIR. Burden of proof can define the duty placed upon a party to prove or disprove a disputed fact, or it can define which party bears this burden. 20 The two prosecution witnesses, on whom the entire episode is predicated, are PW4 and PW7. There can also be a minor burden, or evidential burden, which is not a burden of proof but a burden to introduce evidence of some matter sufficient to raise a triable issue. 23 We may only observe that in his examination under Section 313 Cr.P.C. Other related documents. This emerges clearly as the manner in which Parliament sought to combat the scourge and evil of rampant bride burning or dowry deaths, to which manner we unreservedly subscribe. [, 16 It has already been pointed out that both in Pathan Hussain Basha as well as in Ashok Kumar v. State of Haryana 2010 (12) SCC 350, authored by our same learned Brother, the use of word "shown" in Section 304B has palpably not been given due weightage inasmuch as it has been freely substituted by the word "proved". The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction: There are some exceptions to the normal rule that the burden of proof is upon the prosecution. "An evidential burden is not a burden of proof. The evidential burden requires that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case. On the fateful day PW4 stated that he reached the village where the deceased resided and where she had committed suicide at about 7.00 pm on 7.2.1998 and that he immediately left for that place along with several others after ascertaining facts; the following morning he lodged the report at P.S. Krishna Lal v. Government of Kerala, 1995 Supp (2) SCC 187, in which decisions spanning the globe have been mentioned and discussed. By the introduction of Section 8A of the Dowry Act the burden of proof was reversed in respect of prosecutions for taking or abetting the taking or demanding of any dowry by making the concerned person responsible for proving that he had not committed any such offence. [3]" In the United States, however, both the burden of production and the burden of persuasion are referred to as "burdens of proof. The defendant's appeal to the Court of Appeal was dismissed and he appealed to the House of Lords, the issue being: In a prosecution for murder, before the judge is obliged to leave the issue of provocation to the jury, must there be some evidence, either direct or inferential, as to what was either done or said to provoke the alleged loss of self-control? In support of this argument, learned Counsel for the Appellant has relied on the decision of this Court in. It cannot be ignored that the accused was not living with his parents and brother, and it is justified nay necessary to require stronger proof to implicate the family members of the husband. Yes both two are recognised meaning of burden of proof.The legal burden is also refered as persuasive burden,in this if a person bear the legal burden on a particular issue fail to discharge it loses.On the other part is the evidential burden also known as the burden of passing the judge which demands the judge to be satisfied that there is sufficient evidence on any particular issue to justify his allowing the trier of the facts to consider it. The marriage between the deceased, Harjinder Kaur and the accused-Appellant took place on 22.2.1997. There are two types of burdens of proof: the first is the persuasive burden which is when a party satisfies the court to the appropriate standard [] .It is possible for both parties to bear the persuasive burden depending on the case in hand [] .The second is the evidential burden which is when a party has to bring enough evidence in order for the court to at least consider the issue in hand [] . The Explanation harks back to the simultaneously added Section 304B of the IPC for the definition of dowry death, clarifying thereby that the person alluded to in this Section is her husband or any relative of her husband. Lapses in Investigation 30. "[4], An evidential burden compels a party to produce evidence in support of an issue it seeks to raise, failing which the party shall not be permitted to raise it at all. The main exceptions are as follows. Evidential but not persuasive burden on the accused. He was informed of the death of the deceased on 7.2.98 by Angrez Singh/PW4. dowry death stands defined for all purposes in Section 304B of the IPC. In such a case, a legal burden will always rest on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. However, if the perfidious harassment and cruelty by the husband is conclusively proved by him to have had no causal connection with his cruel behaviour based on a dowry demand, these provisions are not attracted as held in, 10 It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death if a young bride confines its charges to Section 304B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. The evidential onus (also called the evidential burden). The appeal was therefore dismissed. ............................................J. Surely, if the husband proved that he played no role whatsoever in the accident, he could not be deemed to have caused his wife's death. 17 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". Section 113B was further incorporated into the Evidence Act; [yet again ignoring the futility, if not ignominy, of retaining the withered appendage in the form of the existing Section 113, and further perpetuating an anachronism.] It cannot be confined in terms of time; the query of this Court in the context of condonation of delay in filing an appeal - why not minutes and second - remains apposite. We have the high authority of the Constitution Bench of this Court both in, 15 The width and amplitude of a provision deeming the guilt of a person in a legal system founded on a Constitution needs to be briefly reflected on. Confronted with the pestilential proliferation of incidents of married women being put to death because of avaricious and insatiable dowry demands, and/ or of brides being driven to take their own lives because of cruelty meted out to them by their husband and his family also because of dowry expectations, Parliament enacted the Dowry Prohibition Act, 1961 (for short 'the Dowry Act') in an endeavour to eradicate the social evil of giving and taking of dowry. Therefore, the burden of proof weighs on the husband to prove his innocence by dislodging his deemed culpability, and that this has to be preceded only by the prosecution proving the presence of three factors, viz. Quite palpably, unlike the Trial Court, the High Court construed even Section 304B requires the prosecution to 'prove' beyond reasonable doubt in contradistinction to 'show' the participative role of the husband's relatives as a prelude to the deemed guilt kicking in. Section 4 makes it punishable even to demand dowry and if any agreement is entered into for the giving or taking of dowry, Section 5 makes it void. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should "prove" the existence of a vital sequence of facts, despite having employed the word "shown" in Section 304B. [9], The reason for imposing an evidential burden is to ensure the prosecution does not have to disprove all imaginable defences, only those properly supported by sufficient evidence. They, thereafter, conveyed this information to their uncle- Complainant, Angrej Singh viz. Evidential burdens do not breach the presumption of innocence and are therefore compatible with Article 6(2) ECHR. Lord Morris of Borth-y-Gest said in Bratty v Attorney-General for Northern Ireland:[10]. It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted. The House of Lords held that in the absence of any evidence, emerging from whatever source, which suggested the reasonable possibility that the defendant might have lost his self-control due to provoking conduct, the question of provocation did not arise and should not be put to the jury. A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue. Parliament, however, has been tasked with the responsibility of locating myriad competing, if not conflicting, societal interests. The Constitution is the grundnorm on which the legal framework has to be erected and its plinth cannot be weakened for fear of the entire structure falling to the ground. On the facts, there was no evidence of the nature of the provocation and the jury could not, therefore, determine the relevant conditions necessary for provocation. The House of Lords held that a mere evidential burden was not contrary to the ECHR.[11]. On 7.2.1998, one Rajwant Singh informed the Complainant that the deceased had committed suicide by consuming some poisonous substance at her matrimonial house in village Danoli. This Court has repeatedly reiterated this position, including in. Section 113A, introduced into the Evidence Act by Clause 7 of Act 46 of 1983, specifies that when the question is whether the commission of suicide by a woman had been abetted by her husband or his relative and it is shown that she has committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by relatives of her husband. The newly added Section stipulates that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. He claimed his mother was injured in a fall, but the medical evidence demonstrated that the deceased died because of a sustained attack and was indicative of a possible loss of self-control from the defendant. He has also deposed about a panchayat which included Gurdeep Singh (maternal uncle) as well as Angrez Singh/PW4 who, as has already been noted, has categorically stated that no such Panchayat took place. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. This is specially so before she takes the extreme step of taking her own life. The party that has the legal burden usually has the evidential burden, ie is the burden of adducing sufficient evidence to make the issue a live one at the trial. Glanville Williams, in particular, cautioned that while this distinction might render acceptable the reversal of an evidential burden, the application of the same to the persuasive burden would severely qualify in substance, or even negate the principle in Woolmington v DPP [12] that the prosecution bears the ultimate burden to prove all elements of an offence. Admissibility of Evidence. The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. The burden of proof then falls on the prosecution to produce evidence to support their position. (1) Basically means proving the main facts in issue by calling or tendering evidence of sufficient relevance to be admissible and to make out a prima facie case. Conspicuously, this Section does not employ the word 'dowry' at all. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law. It is noteworthy that whilst Section 113A of the Evidence Act reposes discretion in the Court to draw a presumption so far as the husband's abetment in his wife's suicide, Parliament has mandated the Court to draw at least an adverse inference under Section 113B in the event of a dowry death. On learning of these demands PW4 had told her that these goods would be provided at the time of the marriage of her brothers. The first type is a tragedy and no criminal complexion is conjured up, unless statutorily so devised, as in Section 304A; but even there the culpable act is that of the person actually causing the death. In criminal cases, the burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty before a jury may convict him or her. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions. In our opinion, it would not be appropriate to lessen the husband's onus to that of preponderance of probability as that would annihilate the deemed guilt expressed in Section 304B, and such a curial interpretation would defeat and neutralise the intentions and purposes of Parliament. The term burden of proof should strictly be reserved for the legal or persuasive burden which is determined at the end of the trial when the jury decides whether to convict or not. If the defendant does discharge the evidential burden, the persuasive burden will rest with the prosecution. Whether trespasser can claim injunction against true owner of property? Evidential burden has been described as the obligation "to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation". provocation, self defence, duress & defences [other than insanity]) Accused bears legal burden of proof re. Whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer ? If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. the father of the deceased, had already died. The "Evidential" burden of proof is the obligation of a party faced with a legal burden to adduce evidence in order to discharge that legal burden. Whether suit for injunction by co-owner for restraining construction is maintainable without claiming partition. The logical consequence of both these conclusions would lead to the striking down of Section 8A of the Dowry Act, Section 113B of the Evidence Act, and possibly Section 304B of the IPC, but neither decision does so. Examples can be legion, and hence we shall abjure from going any further. Evidential burden means the obligation to show that there is sufficient evidence to properly raise an issue at trial and to show the existence or non-existence of a fact in issue. A scenario which readily comes to mind is where dowry demands have indubitably been made by the accused husband, where in an agitated state of mind, the wife had decided to leave her matrimonial home, and where while travelling by bus to her parents' home she sustained fatal burn injuries in an accident/collision which that bus encountered. In criminal legislation, however, it is unpalatable to adopt this approach by rote. pertaining to the suicide or death of a woman within seven years of her marriage; it mandated the examination by the nearest Civil Surgeon of the body of the unfortunate woman. Evidential burden or "production burden"[1] is the obligation to produce evidence to properly raise an issue at trial. However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304B "deemed" the guilt of the husband and the members of his family. The fact remains that she did so. In Jayasena, Lord Devlin said that the prosecution discharges the evidential burden “”. Sub-section (2) thereof understandably makes an exclusion in respect of presents given at the time of marriage provided they are of a customary nature and the value thereof is not excessive having regard to the financial status of the concerned parties. Even though there may not be any Constitutional protection to the concept of presumption of innocence, this is so deeply ingrained in all Common Law legal systems so as to render it ineradicable even in India, such that the departure or deviation from this presumption demands statutory sanction. (3) No person accused of any offence shall be compelled to be a witness against himself. It is for these reasons that we are of the opinion that the prosecution has not shown/presented and or proved even by preponderance of probabilities that the deceased had been treated with cruelty emanating from or founded on dowry demands. 15. It seems to us that the presumption of innocence is one such legal principle which strides the legal framework of several countries owing allegiance to the Common Law; even International Law bestows its imprimatur thereto. We have already noted that Article 20 of our Constitution while not affirming the presumption of innocence does not prohibit it, thereby, leaving it to Parliament to ignore it whenever found by it to be necessary or expedient. What is important from his deposition is that he has deposed of only one alleged demand of dowry. It does exclude death in normal circumstances. In cross-examination even this witness has admitted that no dowry demands were made prior to or at the time of marriage. 14 As is already noted above, Section 113B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. Sher Singh @ Partapa vs State Of Haryana on 9 January, 2015. In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and erudite judgment of this Court in P.N. Inferences form Silence Inferences from silence - tutorial Burden of Proof - notes - Skeleton Argument - Bad character Evidence sexual behaviour lecture notes 2. This burden can rest on either party, although it usually relates to matters of defence raised by the accused. It is quite apparent that troubled by the exponential increase in the incidents of bride burning, Parliament thought it prudent, expedient and imperative to shift the burden of proof in contradistinction to the onus of proof on to the husband and his relatives in the cases where it has been shown that a dowry death has occurred. An ‘evidential’ burden requires only that the accused must adduce sufficient evidence to raise an issue before it has to be determined as …

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