The soul of criminal justice system is Adverserial system which provides with a prospect for the parties to case, advance and present their arguments, gather and submit evidence, call and question witness and control the information presented conferring to the law and legal procedure.
“It is better that several guilty person should escape punishment than one innocent person should suffer”
Founded on this criminal policy India follows Accusatory criminal justice system which presumes “A man is to be innocent until proven guilty” for that reason it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence. Sections 101-104 of the Indian Evidence Act, 1872 areestablished on Roman law maxim, “ei qui affirmat, non ei qui negat,incumbit probation,” which clearly states that the burden of proof lies upon the party who substantially asserts the affirmative of the issue.Therefore if a suit is advancedagainst a person i.e. accused than it is the prosecution who has the Onus Probandi. It was well recognized in the case of Woolmingnton v. DPP  A.C. 462, that “At the end of the evidence it is not for the prisoner to establish his innocenece, but for the prosecution to establish his guilt”.In GandapBhimanna v. The State of Hyderabad,  Hyd. 636, it was held that it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence; it is not for the court to speculate that as to how the crime has been committed.
but what happened in rape case or divorce case or the case of mental cruelty to women? the woman don't have to prove the accused guilty but the accused has to prove his innocense. the court presumed that the woman is telling truth. is the court following law?
Another speculation of these sections is, Ifthe evidence is of such nature that conclusion cannot be arrived the benefit of doubt should be given to the accused therefore in case of Rama v. The State of Hyderabad,  Hyd. 354, as the evidence was not conclusive enough to conclude who started the fight or how the quarrel began the benefit of doubt was provided to the accused.
this practice also is not followed in marriage related case or woman related case.
However there are some exceptions to this rule of Presumption of innocence. One of the important category is statutory offences requiring no mensrea for the completion as these offences mere non-compliance with the duty imposed by the statute raises presumption of guilt of the accused. Another can be proof of previous conviction of the accused may be given as evidence against him. And lastly with regard to receiver of stolen goods, the law relating to presumption of innocence in Section 114 of the Indian Evidence Act which states that the court may presume the person in possession of the stolen goods soon after the theft is either the thief or the received the goods knowing them to be stolen.
how many public servant are presumed guilty in practice? police breaks law in broad daylight and still they can get go. nobody is presumed guilty.
Fairness to the accused further extends to Section 24, 25 and 26 of the Indian Evidence Act which talks about the confessions made by the accused.Confessions are accepted as evidence on a sole basis that a person will not make any untrue statement against his own interest.It is a well-accepted rule that the confession should be accepted as a whole or rejected as a whole. A confession is a good piece of evidence unless it is caused by inducement, threat or promise having reference to the charge against the accused; it was held in Kuruma v. The Queen,  A.C. 197 that a confession can only be admitted if it is voluntary, and one obtained by inducement, threat or promise held out by a person in authority is not admitted.Section 25 and 26 emphasises on the irrelevancy of the confession made to the police officer and in police custody respectively. The object of these two sections is to prevent the practice of torture by the police for the purpose of extracting confessions from accused persons. It was held in Imperatrix v. Pandharinath (1881) 6 Bom, 34, that any incriminating statement made by the accused to a police officer is inadmissible as evidence. The concept of fairness is not only restricted in this piece of law but also extends to The Constitution of India, The Code of criminal procedure, 1973 and the Indian Penal Code, 1860.
in most of the cases, in practice, judge relies on confession made by accused in police custody. no judge, i think would ever disbelieve the confession. are the trials then fair in india?
In accordance with Section 164(2) of CrPCthe magistrate explains the person making the statement that he is not bound to make any confession. This right is encrypted as the Right to silence guaranteed under Article 20(3) of the Constitution which says “No person accused of an offence shall be compelled to be a witness against himself” and if he does so it may be used as an evidence against him, and magistrate should not record any such statement unless he has a reason to believe that statement is being made voluntarily. Section 164(3) also lies on the parallel grounds that if the person appearing before the magistrate is not willing to give confession, the magistrate should not authorise the detention of that person in the police custody.
in how many cases a person can remain silent? police will do all sort of brutal torture to make the accused confess the crime and judge believe them. in cases of terrorist attacks or women related cases, judge often believe in confession made by accused. how many of those confessions are voluntary?
The accused has also been granted with the Right to Legal Aid which is a part of an important principle of Criminal Jurisprudence that is Right to Fair Trial. This right is being highlighted in the Constitution of the country as well as the Code of Criminal Procedure, Article 22(1) of the Constitution of India grants the right to the accused to consult and to be represented by a lawyer of his own choice similar right is being mentioned in Section 303 of CrPc but the ultimate fairness is being shadowed in Section 304(1) of the CrPc which says when the accused has not got sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the state.
when nalini, the alleged killer of rajiv gandhi, the late prime minister of india was arrested and taken to court, no lawyers are willing to represent her. how many lawyers are willing to represent ajmal aamir kasav or afjal guru? only cheap lawyers are appointed in their defence. how FAIR those trials are?
There lies a Rule of Prudence in The Indian Evidence Act, 1872 in Section 114…illustration (b) That an accomplice is unworthy of credit, unless he is corroborated with material facts. It is called a rule of prudence because it can well understood that a person who has given statements against his/her own friend in the crime in unworthy of trust so his statements cannot be considered as a good piece of evidence, which is again seems to be tilted on the side of the accused.
i don't know how many courts follow this rule?
Fairness needs to flow from every corner, this seems to be the agenda of The Indian Evidence Act, 1872 as Section 22 and 26 also talks about communication during marriage and professional communication respectively now these two sections clearly focuses on the communication done or exchange of information based on trust. Therefore in accordance with Section 22 of Indian Evidence Act, No person who is or has been married shall be permitted to disclose any such communication made to him during marriage by any person to whom he or she is or has been married unless the there is an consent from him/her or representative of the same or if the proceedings is against one married person prosecuted for the crime against other. This protects the accused from flowing of any information made by him to the married counterpart on the bond of trust.
does the police not force any person to disclose information he told to his wife or she told to her husband? i don't know if courts follow this rule of trust.
Similarly Section 26 states that no barrister, attorney or vakilshall at any time disclose any information made to him by his/her client unless there is an express consent on the side of the person. This section is based upon the principle that if communication to legal adviser were not privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid in a matter which he is likely to be thrown into litigation. So for instance, anaccused made any statement to his pleader that he has committed the murder now he wants the pleader to defend him so this communication will be protected from disclosure.
please offer money to a lawyer and then ask him to disclose the facts of his client. see if he disclose or not?
According to my analysis I believe Section 151 and 152 of the Indian Evidence Act are also very important when it comes to fair trial of the accused as these two sections focuses on the questions that are being asked during a case proceeding and they prohibit any indecent, scandalous or any question that is been put to annoy or insult, unless it is necessary to ask or is very related to the fact in issue because as the decision of case is unstable so any such kind of question put to the accused can be harmful the dignity of that person if the decision stand in his acquittal,so this will violate the Right to Life with human dignity of that person granted by Article 21 of the Constitution of India. Therefore these two sections are essential when it comes to the fairness of trial of the accused or the protection of the accused. So the Criminal Justice System prevailing in India is to its extent pro-accused with some restrictions limiting the concept of fairness.
is it necessary to ask indecent,scandalous question to husband in the cases of mental cruelty ? i know it is a necessity in rape case or cases of s*xual harassment.
so my dear readers do you think that trials are fair in india? courts do justice with people in india? or do you think innocent people are behind the bar in india? please give your comment. it matters.
Student, National Law Institute University, Orissa
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]