Presumption of Innocence

Presumption of Innocence

Our laws are based on the Common Law and equality of law. One of the important and well-known principles is that a person is believed to be innocent till the guilt is proved against him. This principle is called the Presumption of Innocence. In other words, accused is entitled to take advantage of reasonable doubt in respect of his crime. This principle is being seen in countries where executorial system is prevalent. In several European countries the Inquisitorial principle or the principle based on inquiry is not being followed. But contrary to Indian Law in several countries accused is considered to be an offender till he is proved to be innocent. Since India is having executorial system, the law has accepted both these principles.

Under these provisions, Magistrate remains neutral and helps accused instead of the complainant. This means, even if accused is not aware of his legal rights, he gets necessary help from the court and the court ensures that accused are not denied their rights. Complainant in criminal cases is represented by the State and that helps in the process of finding out the truth. However, it is not the duty of the complainant to ensure that accused is convicted by any means. Their only duty is to divulge the true facts without bias before the Court.

In the case of Shivaji Saheb Rao Bobade,  the Supreme Court cautioned that though this doctrine is very much useful, this golden rule has to be used with caution and cannot be used in any type of doubt. Accused is to be given only a reasonable benefit of doubt. As such, if the principle of “even if a thousand people may get acquitted, one innocent person should not be punished” is applied in all cases and is relied upon indiscriminately, it may cause an adverse effect on the administration of justice and the society may lose faith in it. Besides, it is not desirable to acquit or convict accused wrongfully. Even if accused were given punishment wrongfully, this also would create an adverse effect on the society. If accused is punished without adequate evidence against him, it also would create a bad impression on the society and may have serious consequences on his family financially and socially.

Therefore the judiciary should be very much alert while convicting anyone. In our country it is a well-known slogan that even if ninety-nine guilty may get away one innocent person should not be punished. This doctrine is being used extensively. In other words, we observe that our country and our judiciary take a very lenient view in this respect. On the presumption of accused being innocent, large numbers of accused get acquitted and only in a few cases the conviction is awarded. Thus, this doctrine is used extensively in our country and bad elements of the society take full advantage of this principle.

There are certain notable exceptions in this presumption:

(1) In many laws mens rea or criminal minded intent is not there. While performing certain public welfare activities, a presumption arise that accused is guilty. Here accused has to prove that he was not guilty.

(2) In certain other crimes like keeping stolen goods, crimes related to prohibition, crimes related to moral turpitude, adulteration of foodstuff, dowry cases, terrorism crimes, crimes against drugs, etc., it is presumed that accused is guilty. An evidence of pre-mediation can be given against such accused, which means it cannot be believed that accused is innocent.

In our prevalent legal system, normally it is believed that accused is innocent but three sections of the Indian Evidence Act Section 111-A, 113-A and 113-8 have been added later on.

Presumption of innocence is a restatement of the rule that in criminal matters the public prosecutor has the burden of proving guilt of the accused in order to be convicted of the crime of which he is charged. Burden of proof has two elements: the first element is evidentiary burden, i.e. producing evidence in support of one’s allegation, while the second element relates to the burden of persuasion or legal burden, which is the party’s obligation to convince the court on its sides and thus the evidence must prove the party’s assertion of facts.

The most generally recognized qualification of the presumption of innocence is that it serves as a safeguard against wrongful convictions. This conception focuses on the dangers inherent in conviction as such. It is the very nature of the consequences of being found guilty of a criminal offence that is believed to necessitate the safeguarding of the defendant from wrongful convictions by, firstly, adhering to the in dubio pro reo principle and, secondly, by burdening the prosecution with proving guilt and thereby defeating the presumption of innocence.

In the common law legal doctrine the presumption of innocence is taken to be primarily a rule of evidence, setting standards for the decision on guilt. Taken in this sense, the notion dictates that the burden of proof is on the prosecution authorities, and it sets a standard with regard to the threshold of required proof: the presumption of innocence must be defeated by proof of guilt beyond a reasonable doubt before guilt can be regarded as established and a conviction can take place.

Outside of the common law jurisdictions the presumption of innocence is related to evidential issues more loosely; general principles such as in dubio pro reo and ‘the burden of proof is on the prosecution’ are recognized as noteworthy aspects of the presumption of innocence, but the essential meaning of the principle is not pinpointed on matters of proof. Weigend, for example, considers that the presumption of innocence, on the one hand, and evidentiary standards, on the other, apply in different contexts and have different purposes; a violation of the presumption of innocence in the context of proof could only occur if the law would generally require defendants to disprove the charges against them, because such a law would imply that anyone who is charged is in effect presumed to be guilty.

For Weigend, the fact that the presumption of innocence is a rule of procedure means that it applies ‘from the initiation of a criminal process to its final conclusion’. According to him, the very aim of the presumption of innocence is to protect the suspect from overbearing situations as a consequence of state actions. Therefore it prohibits state agents from taking action that necessarily presupposes that the suspect is in fact guilty. In this context Weigend defines the presumption of innocence as a ‘counterweight’ against all the real risks involved in an individualized suspicion (it puts his social status in jeopardy, it submits him to the State’s vast powers, and it sets in motion processes possibly leading to conviction and detention).

The actual application of the notion of the presumption of innocence as a ‘shield’ against state powers causes difficulties in the face of the uncontested fact that investigation and prosecution authorities cannot do without coercive powers. In this connection, some authors argue that the presumption of innocence primarily warns against imposing irreparable measures.

It is initially necessary to bear in mind the difference between burden of proving an issue (known as the legal or persuasive burden of proof), a burden which never shifts and the burden of adducing credible evidence (known as evidential burden), which can go on shifting during the trial procedure. Several modern statutes, while maintaining the burden of proving a pleading or charge, alter the evidential burden.

The method of shifting evidential burden has been resorted to in criminal cases too particularly where an accused is found in possession of certain property which the law declares it illegal to possess.

Case Laws

Dataram Singh v. State of Uttar Pradesh & anr [i]

In this case it was held that freedom of an individual cannot be curtailed for infinite period, especially when his/her guilt is yet to be proved and must be considered innocent till found guilty.

Chandra Shekhar v. State of Himachal Pradesh

That the freedom of an individual is of utmost importance and cannot be curtailed for indefinite period, especially when guilt, if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent.

Woolmington v. DPP (1935)

The accused admitted killing his wife but claimed that the gun had gone off accidentally. The trial judge directed the jury that once the prosecution had shown that the accused had killed his wife the burden of proof shifted to the accused to show that it was accidental i.e. to prove his defence. The House of Lords held that this was incorrect. The burden of proof always lies with the prosecution and once a defence is raised the accused is entitled to be acquitted unless the prosecution disproves that defence.

DPP v. D O’T (2003)

In this case Hardiman J. stated that:-

“the presumption of innocence is a vital, constitutionally guaranteed, right of a person accused in a criminal trial and that the right has been expressly recognized in all of the major international human rights instruments currently in force” In fact Article 6(2) of the European Convention on Human Rights states that “everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”.

Comparison with other countries


In terms of section 11 (d) of the Canadian Charter any individual charged with an offence has the right to be presumed innocent until proven guilty according to law in a hearing which is fair by an independent and impartial tribunal. The presumption of innocence is also considered integral to the right to life, liberty and security of the person protected by Section 7 of the Charter. In case of R V Oakes it was observed that the what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence.

South Africa

Under South African law the presumption of innocence is entrenched in section 35(3) (h) of the Bill of Rights. Section 35(3) (h) operates at trial where the guilt or innocence of the accused is to be established.

Frequently Asked Questions (FAQs)

When was presumption of innocence established?

The presumption of innocence was established and firstly incorporated, by the United Nations in its Declaration of Human Rights in 1948 under article eleven, section one.       It is also mentioned in the European Convention for the Protection of Human Rights in 1953 [as Article 6, Section 2] and was incorporated into the United Nations International Covenant on Civil and Political Rights under Article 14, Section 2.


[i] Criminal Appeal No. 227/2018




Mohini Chaturvedi
I am Mohini Chaturvedi pursuing BA.LLB from Sharda University. The most attractive aspects of law which I like is Criminal Law and Intellectual Property law. Other activities in which I am specifically involved are reading articles, watching web series and movies as well. I am also involved in participating in moot court competitions and conferences and article writing is my passion. I always like to undertake difficult tasks in order to learn something out it which is beneficial and all must do that.