India Criminal Defense Manual - Various Defense Strategies

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INTRODUCTION

In the process of developing a theory of the case, a legal aid lawyer shall decide whether it is possible to exonerate the client from guilt. If so, the lawyer shall further consider how to prove the innocence of the client at trial. The following are possible defenses for exonerating an accused from criminal liability under the Indian legal framework and applicable circumstances to raise such defenses.

Has the prosecution borne the burden of proof?

Remember that your client is entitled to the right of being innocent until proven guilty. No person shall be found guilty without being judged as such by the Court according to law. It is the prosecution's duty to prove that the client is guilty of the charges against him. It means the prosecution must prove that the facts are clear and the evidence is sufficient.

Before forming other defenses, the counsel should critically scrutinize the bill of prosecution to confirm whether the alleged crime has really occurred or not. If it has occurred, further consider whether the prosecution has presented evidence sufficient enough to support the charge. Consider whether another charge (a lighter charge) fits better with the case evidence.

The following are necessary questions for your consideration:

  • What are the elements of the accused offense? For example:

Self-driven act: Did the client act from his own free will? What evidence has the prosecution presented to prove that the client acted of his own accord?

State of mind: Under what state of mind would the client's act constitute a crime (for example: intentionality, disregard of the outcome, negligence)?

Is the crime a strict liability crime (the prosecutor has no burden to present evidence concerning the accused's intent)? What evidence has the prosecution presented to prove that the client in his actions had the requisite criminal intent, had specific knowledge or skill necessary for committing the act, or was criminally negligent?