Re-writing the Concept of Burden of Proof; Supreme Court Judgment in Sher Singh @ Partapa Vs. State of Haryana requires re-consideration

The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the charged offence. A Two Judge Bench of the Supreme Court in Sher Singh @ Partapa Vs. State of Haryana while dealing with S.304B IPC and S.113B Evidence Act interalia held as follows; The Prosecution can discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities Once the presence of the concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. Most recently in Karan Singh vs. State of Haryana it was held as follows; "It has been held times without number that, "To establish the offence of dowry death under Section 304-B IPC the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. In Rajeev Kumar v State of Haryana it is held as follows; "One of the essential ingredients of the offence of dowry death under S.304B, IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Indian Evidence Act." Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail" Legislative Intention In Para-14 of the Judgment it is held as follows; "It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt" But the following provisions will make it clear that if the Parliament intends the accused to discharge his burden/part of burden/or to prove any ingredient beyond reasonable doubt, it would have expressed in clear terms 35 of NDPS Act 138A of Customs Act 278E of Income Tax Act 9C of Central Excise Act 1944 30 of POCSO Act 2012 Section 35 of NDPS Act is extracted below; Presumption of culpable mental state.