Burden of Proof / Ei Incumbit Probatio Qui Dicit Non Qui Negat /

The presumption of innocence is the cornerstone of criminal procedure: every accused person is presumed innocent until proven guilty by the prosecution to the standard of proof beyond reasonable doubt. The burden of proof in criminal trials rests on the prosecution throughout — it never shifts to the accused. If the prosecution fails to prove guilt beyond reasonable doubt, the accused must be acquitted, regardless of whether the accused offered any evidence in their defence. The 'golden thread' of English (and Indian) criminal justice — as articulated in Woolmington v. DPP [1935] — is that the prosecution must prove guilt.

Sections 94-97 of the BSA, 2023 (formerly Sections 101-106 IEA) deal with the burden of proof: Section 94 — whoever asserts a fact must prove it (general rule); Section 95 — burden lies on the party who would fail if no evidence were adduced; Section 96 — burden of proving fact especially within knowledge; Section 97 — burden on person claiming exception under criminal law. Together these provisions implement the adversarial system's allocation of the burden of proof.

Shifting of burden by specific statutory presumptions: while the legal burden in criminal cases rests on the prosecution, Parliament has enacted specific statutory presumptions in serious offences that shift the evidential burden to the accused: (1) NDPS Act, 1985, Section 35 — where the accused is found in possession of a commercial quantity of a controlled substance, the court shall presume guilt until the accused provides evidence to the contrary; (2) Arms Act, 1959, Section 29 — presumption against the licence holder for possession of unlicensed arms; and (3) Prevention of Corruption Act, 1988, Section 20 — presumption against a public servant who is found in possession of unexplained wealth or accepts a gratification. These are rebuttable presumptions — the accused can rebut them by bringing evidence, but the burden is on the accused to rebut rather than on the prosecution to negate from the outset.

For advocates, the presumption of innocence is fundamental to: (1) no-case-to-answer submissions — where the prosecution fails to adduce sufficient evidence of each ingredient of the offence, the accused can submit there is no case to answer; (2) addressing statutory presumptions — in NDPS, Arms Act, and PC Act cases, the defence must rebut the statutory presumption; (3) bail hearings — the presumption of innocence supports the right to bail, though serious offences attract non-bail provisions; and (4) the standard of proof in judicial inquiries and departmental proceedings — these are civil standards (balance of probabilities), not beyond reasonable doubt.