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V.D.Jhangan vs State Of Uttar Pradesh on 3 March, 1966
Showing the contexts in which preponderance of probability appears in the document
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The next question arising in this case is as to what is the burden of proof placed upon the accused person against whom the presumption is drawn under S. 4(1) of the Prevention of Corruption Act. It is well-established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, (1) A.I.R. 1960 S.C. 548.


of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under s. 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. It was observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions(1) that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained". This principle is a fundamental part of the English Common Law and the same position prevails in the Criminal Law of India. That does not mean that if the statute places the burden of proof on an accused person, he is not required to establish his plea; but the degree and character of proof which the. accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case. In Rex v. Carr-Briant(2) a somewhat similar question arose before the English Court of Appeal. In that case, the appellant was charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to show, or as a reward for showing, favour to him. The charge was laid under the Prevention of Corruption Act, 1916, and in respect of such a charge, s. 2 of the Prevention of Corruption Act, 1916, had provided that a consideration shall be deemed to be given corruptly unless the contrary is proved. The question which arose before the Court. was: what is the accused required to prove if he wants to claim the benefit of the exception? At the trial, the Judge had directed the jury that the onus of proving his innocence lay on the accused and that the burden of proof resting on him to negative corruption was as heavy as that ordinarily resting on the prosecution. The Court of Criminal Appeal held that this direction did not correctly represent the true position in law. It was held by the Court of Appeal that where, either by statute or at Common Law, some matter is resumed against an accused person "unless the contrary is proved," the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the (1) [1935]A.C. 462.

(2) [1943] 1 K.B. 607.


probability of that which the accused is called on to establish. The ratio of this case was referred to with approval by this Court in Harbhajan Singh v. The State of Punjab.(1) We are accordingly of the opinion that the burden of proof lying upon the accused under s. 4(1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the' plea made by the accused is proved if a preponderance of probability is established by the evidence led by him.

It is against this background of principle that we must proceed to examine the contention of the appellant that the charges under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act have not been proved against him. It was argued by Mr. Sethi that the circumstances found by the High Court in their totality do not establish that the appellant accepted the amount of Rs. 10,000 as illegal gratification and not as a loan. It was also argued -for the appellant that he had adduced sufficient evidence to show that the amount was really given to him as a loan by Ram Lal Kapoor. Having examined the findings of both the lower courts, we are satisfied that the appellant has not proved his case by the test of preponderance of probability and the lower courts rightly reached the conclusion that the amount was taken by the appellant not as a loan but as illegal gratification. It has been found by the High Court that Ram. Lal Kapoor was not likely to lend a sum of Rs. 10,000 to the appellant without getting a formal document executed. It is not suggested by the appellant that he executed a hand-note in favour of Ram Lal Kapoor. There was a suggestion that he granted a receipt for Rs. 10,000 to Ram Lal Kapoor but the High Court rejected the case of the appellant on this point. The High Court has observed that, in the first instance, the appellant did not make a statement with regard to the receipt as soon as the amount was recovered from him. It was only after he was taken to Marden Singh's place that he made a belated statement that the amount was advanced to him by Ram Lal Kapoor as a loan and he had granted a receipt. Mr. Sethi contended that it was the duty of the District Magistrate 'and the Senior Superintendent of Police to have made a search of the whole bungalow of Ram Lal Kapoor for the alleged receipt and the failure of these two officers to make the search should be taken to prove the appellant's case regarding the grant of the alleged receipt. (1) [1965] 3 S.C.R. 235.