Burden of Proof
joe
(Querist) 10 July 2011
This query is : Resolved
While noting that child abuse is a horrendous crime, my queries are of academic interest.
The Goa Children's Act 2005 s 32(l) places the burden of proof on the accused. 'He' has to prove that he did not commit the crime.
The queries: (a)In the absence of DNA, trace element and video other evidence, How does the accused prove that he did not commit the crime? (b) Will this conviction not be considered 'unsafe' on appeal, IF there is NO supportive material evidence?
It is my view (as a person who deals with such cases) that a law which requires the accused to prove his innocence will eventually hamper the efforts to deal with the perpetrators of child abuse and land a few innocent persons behind bars
SANJAY GUPTA
(Expert) 10 July 2011
Can a child lodge a false case against you, if is it so then you will get benefit at the time of trial by adducing your evidence and absence of any medical report will also help you in the case.
joe
(Querist) 10 July 2011
I probably should have prefaced my query thus: I am dual (Med/Law) qualified individual who (also)deals with such cases. I live, teach and practice in a common law jurisdiction in which a man is innocent until proven guilty. My hypothetical question is based on the provisions of the Goa Children's Act 2005 which says just the opposite.
My concern is that IF a conviction based on this law is overturned upon appeal, genuine cases will be lost too. This could not be good for the cause of the hapless children.
How do my learned ones feel?
Guest
(Expert) 11 July 2011
Dear Joe,
Section 32(l) of the Goa Children's Act, as substituted by by Goa Children’s (Amendment) Act, 2005 [Act No. 20 of 2005], states, as follows:
Sec. 32(l):
"Burden of Proof: Whenever any offence is alleged to have been committed against a child, the burden of proving that such offence has not been committed by the accused [shall lie on the accused if the child was in his custody at the time of his arrest or at the time of committal of offence or at the time of rescue or removal of the child victim, as the case may be.]"
Although the said Sec. 32(l) of the Goa Children's Act 2003 clearly contravenes section 101 of the Indian Evidence Act, according to which the burden of proof lies on the prosecution, but from your question and the subsequent supplementary post, it seems you also have some confusion about the crime, criminal, and offence in relation to a child.
The Act deals with crime against a child made by some one (NOT BY A CHILD), the child being under the custody of that person at the time of commitment of crime before his rescue from the custody. if the child has been in the custody of a person and a crime is evident to have been committed against that child, from where you can get evidence to prove that the crime was committed by the custodian or some one else against the child under his custody and rescrued from his custody?
The question does not arise that he is being treaded as guilty straight away and being sentenced without proving his guilt. The only thing is that the burden of proof has shifted upon him to prove himself as innocent.
Naturally, a child is not considered as so mature to provide sufficient evidence to prove the crime committed against him. So, where the question arises in not being treated him as innocent before the crime is proved to have been committed or not committed by him against a child and an innocent is being put behind bar?
