The Common Law in India - College of Social Sciences and ...

46 The Common Law in Indiadoctrine. It is for the two adversaries to questiontheir witnesses, the opposing side having a right totest their testimony by questioning them. Throughoutthe trial the judge is supposed to perform the dutyof impartially holding the balance between the twoadversaries and ensuring that the proper procedureis being followed. His eventual duty is to render hisdecision at the end of the trial.Equally rigorous is the application in India of therule of common law which is said to put justice beforetruth. The decision, whether in a civil or a criminaltrial, has to be rendered solely on the evidence putforward by the tribunal. It is not open to the judgeor the jury to consider matters extraneous to theevidence or let their personal knowledge come intoplay. In a criminal trial the question always is: Hasthe prosecution proved its case on the evidence recordedby the tribunal? The presumption of theinnocence of the accused, a memorable doctrine of thecommon law, has been accepted by the Indian courtsto its fullest extent. In a criminal trial the personcharged is not obliged to open his mouth or subjecthimself to questions by the prosecution. The burdenof establishing him to be guilty rests all the time onthe prosecutor and never shifts to the person charged.Similarly, the question in civil matters is whether theperson bringing the claim before the tribunal hasestablished it by legal evidence. The Indian judgeshave repeatedly insisted upon the observance of theserules, even though on occasions justice administeredin accordance with law may tend to obscure thetruth.