SCHOOL OF LAW,

MUMBAI

Final Project Submitted

On

The scope of Section 106 of Indian Evidence Act: Recent Developments

IN COMPLIANCE TO THE PARTAIL FULFILLMENT OF THE MARKING SCHEME, FOR
SEMESTER VI OF 2018-19, IN THE SUBJECT OF Evidence Act Law

SUBMITTED BY:-
Pratiti Shah
A055
B.B.A., LL.B. (Hons.)
(Third Year)

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 INTRODUCTION

The section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act)
deals with sifting the onus of proving a particular fact on the accused or when that particular
fact is especially within his knowledge. This section is only applicable once the prosecution
has proved the prima facie case against the accused.1 Hence, it is clear that the section is just
an exception section 101 of the Evidence Act and its applicability does not extend into taking
off the legal burden from the shoulder of the prosecution. Hence the burden which is being
talked about in this section is the evidential burden the onus of proving which can be shifted to
the accused. The researcher shall thus, be proving these various issues and the consequential
sub-issues which may arise during the course of her arguments.

AIM

The aim of this research paper is thus, to examine the scope of section 106 of the Evidence Act
especially in light of its recent developments. The thesis statement which the researcher shall
be proving through this research paper will be that section 106 of the Evidence Act only puts
the evidential burden on the accused and it is not the legal burden which shifts from the
prosecution. Further, the researcher intends to prove that section 106 is just a mere tool to assist
the prosecution rather than a loophole in the law for the prosecution to shirk their responsibility
of proving a criminal case beyond reasonable doubt.

SCHEME

Hence, the researcher shall be proving her thesis statement in light of the recent developments
by examining the nature of burden of proof as referred to under section 106 in the first segment
of the paper. Moving on to the micro level the paper examines the need for section 106 and its
correlation with section 101 of the Evidence Act. The first segment concludes by critically
analysing the role of prosecution in light of section 106. The second segment of the paper
scrutinizes the implications of the term „ especially within the knowledge‟ as mentioned in
section 106 of the Evidence Act. The analogies drawn in the paper is mainly based on the case
laws as the title of the paper suggests „recent developments‟ and case laws according to the
researcher as the best sources for the same.

1
1 K. N. Chandrasekharan Pillai, “Burden of Proof in Criminal Cases and the Supreme Court: New Trends”
25(1-4) Cochin University Law Review, 407-422 (2001) at 416.

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 EVIDENTIAL BURDEN OF PROOF

In this section of the research paper, the researcher shall be examining case laws to give her
opinion on the type of burden of proof covered under section 106 of the Evidence Act and its
implications. One must first be able to understand section 101 to be able to draw inference of
the meaning of section 106. To be able to further this discussion the meaning of „burden of
proof‟ needs to be clarified first.

The burden of proof has two distinct meanings, the first being the burden of proof on pleadings
which and the second being the burden of adducing evidence. While, the first kind of burden
remains on one side throughout the case, the second on may shift as per the need. Hence, it is
not the burden of proof which shifts rather the onus of proof which shifts.2 Thus, there lies a
distinction between the word „burden‟ and „onus‟ according to the researcher. The first kind
of burden is the legal burden while the second can be referred to as evidential burden. The legal
burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.3

Evidential burden on the other hand, is the obligation to show, if called upon to do so, that
there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in
issue with due regard being had to the standard of proof demanded by a party under such
obligation.4 The object of placing the evidential burden on the defendant can be seen as a
hidden force to make the accused go into the witness box and give evidence.

The burden of proof which has been envisaged in section 101 of the Evidence Act is the legal
burden which never shifts from the prosecution. Section 106 is not a proviso to the rule that
burden of proving the guilt of the accused is upon the prosecution but on the contrary, the
section is subject to that rule. Thus, section 106 is an exception to section 101 of the Evidence
Act.5 The 2 judge bench of Gujrat High Court in State v. Dhulaji Bavaji held that section 106
could not be used to undermine that burden never shifts from the prosecution.

However, section 106 on the other hand, does not intend to put the burden on accused to prove
his innocence. The accused as held in the case of Wasudeo Ramchandra Kaidalwar does not
have to prove his innocence beyond all reasonable doubt but just bring out a preponderance of

2
Gopi Nath, Sir John Woodroffe and Syed Amir Ali‟s Law of Evidence Vol.4 (16th edn., Allahabad: The Law
Book Company Pvt. Ltd., 1996) at 2166.
3
Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath
Committee Report” 17 Student Advocate , 38-58 (2005) at 42
4
Cross and Tapper on Evidence (C. Tapper ed., 11th edn., Oxford: Oxford University Press, 2004) at 132.
5
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404.

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probability in the prosecution’s case.6 Moving further it is necessary to examine the necessity
of section 106 keeping in mind the theory of presumption of fact.

PRESUMPTION OF FACT

The researcher in this segment will deal with the issue of presumption of fact and its
relationship with section 106 of the Evidence Act. This shall be examined by dealing with a
series of cases which with common factual situation of kidnapping followed by murder. These
cases deal with the core issue of onus of proving murder.

The researcher after a study of a series of these cases believes that the common point where
the need for section 106 usually arises is when the deceased is kidnapped after which he is
taken away and believed to have been killed. The common thread running through most of
these cases examined involve the question of corpus delicti as a proof of murder. Thus, the two
observations which have been drawn by the researcher is that firstly, the court presumes the
existence of certain facts in such cases to fill the time gap between the kidnapping and the
murder in any said case.7 The role of section 106 in strengthening this presumption has been
seen in the case of Ram Ghulam Chaudhury and Ors. v. State of Bihar where it was held that
if the prosecution had succeeded in proving facts from which a reasonable inference could be
drawn regarding death, onus could be shifted on the accused under section 106 to fill the gaps.
However in cases such as Mir Mohammad Omar & Ors.8, where the accused remained silent
the presumed facts which were inferred were held to be true.

The second issue observed by the researcher is whether the recovery of dead body is an
important evidence which has to be proved by the prosecution for establishing a prima facie
case as a prerequisite for the onus of proof to shift to the accused to be able to give details about
the murder which would „specially be within his knowledge‟, if he is to rebut the presumption
of fact which has been established.9 This issue has been answered in the Badshah case where
it was held that in the case of murder of an abducted person, either by direct or presumptive
evidence, an inference of murder could safely be drawn without a necessity to proving the
corpus delicti.

6
Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706 at para 15.
7
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988 at para 32.
8
AIR 2000 SC 2988
9
Murlidhar and Ors. v. State of Rajasthan AIR 2005 SC 2345

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The necessity of section 106 which in the view of the researcher can be inferred by from these
cases is the fact that, if the accused was not given a right to prove the facts within his knowledge
which would include any kind of deviation, then going by the presumption of facts of the cases
the analogy that would be drawn would always be that in all kidnapping cases where the victim
was murdered the kidnapper would inevitably be charged for murder as well.10 Hence, in that
sense section 106 is a provision which is not anti-accused. The shift of onus of proof under
section 106 in the opinion of the researcher is another opportunity given to the accused to
defend himself by rebutting the presumption of fact. Since such facts would only be within the
accused’s special knowledge.

Consequently, analysing further, the researcher believes that though section 106 is a pro-
accused provision in one sense yet, it can also be seen as a spine to the concept of presumption
fact. Since, the accused when given an opportunity under section 106 if unable to create a
preponderance of probability then the presumption of fact according to the researcher would
be strengthened.

Hence, the researcher feels that section 106 is a tool in the hands of prosecution which is
promotes the idea of a fair trial. Since, the prosecution is not burdened to prove something
which is impossible as a result of which the accused will be at an advantage. Further, the
accused is given a chance to rebut the presumption of fact which has been inferred from the
series of facts. However, section 106 is not intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt which is in proving the legal burden.11

SHIRKING OFF PROSECUTION’S BURDEN

The researcher will now move on to examine whether this section has been misused by the
prosecution by trying to shirk off their responsibilities. It is well established that burden of
proving the guilt of the accused is on the prosecution and unless it relieves itself of that burden,
the courts cannot record a finding of the guilt of the accused.12

10
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988, para 39.
11
Mir Mohammad case, AIR 2000 SC 2988, para 37 and Shambu Nath Mehra v. The State of Ajmer, AIR 1956
SC 404.
12
R.V. Khelkar, Criminal Procedure, (5th edn., Lucknow: Eastern Book Company, 2008) at 337.

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The Prosecution as stated earlier is only permitted to shift the onus after making out a prima
facie case.13 What needs to be examined is to what extent is the prosecution trying to get off
their responsibility and to what extent have the courts supported the prosecutors. The case of
Bhoora v. State of Uttar Pradesh, the prosecutor tried to shift the burden on the accused for the
murder of his wife and his daughter as the prosecutor believed that it was within the accused’s
special knowledge as to where they had disappeared. Also, because no satisfactory explanation
had been furnished by him either in the statement under section 313 Cr.P.C., or by way of
evidence. The court in this case, held that the accused cannot be convicted for murder because
he did file an FIR against another man and when police was unable to arrest him, the accused
instead was arrested for the murder. Hence, no adverse inference can be drawn under section
106.

According to the researcher many a times, prosecution has misused section 106 in order to
determine jurisdictional issues. This according to the researcher is a shirking off the
responsibility by the prosecution. Since, jurisdictional issues are important in establishing a
prima facie case. This can be illustrated via two case laws. The facts of both are very similar
where in the accused in both cases was found drunk and behaving in a disorderly manner in
public place, which was an offence under the Bombay Prohibition Act, 1949. The argument
put forth by the appellant was that the prosecution had not established that the accused had
consumed liquor at any place within the jurisdiction of the Magistrate’s Court. The advocate
general in Rabari Ramji Arjan v. State had argued that the fact of drinking at a particular place
was within the special knowledge of the accused and the burden would lie upon him to disclose
it. The court in this case held that positive facts giving jurisdiction to a Court had to be
established by the prosecution in all cases.

The other argument against section 106 being invoked to prove a jurisdictional fact is on the
grounds that it is the duty of the Magistrate to determine whether he has jurisdiction before he
proceeds with the trial of the case. Hence, if the prosecution leads no evidence as to the place
of the commission of the offence, it is certainly not incumbent upon the accused to prove where
he committed it.14 Thus, the Gujrat High Court in this case was of the view that “section 106
cannot be invoked to make good the lacuna in proving essential facts of an offence and more

13
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC
14
State v. Dhulaji Bavaji, AIR 1963 Guj 234

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emphatically for establishing facts necessary to give jurisdiction to the Court”. Thus, in these
two cases the court has been strict about letting the prosecutions shirk off their burden.

The other issue which comes up consequentially is whether the courts when examining the role
of the prosecution under section 106 are taking them to be a counsel for the victim or an officer
of the court who is there to bring out the truth. The role of the prosecution15 has been taken to
be as someone who is an officer of the court. His duty is to bring out the truth of the case
irrespective of whether it goes against the victim or not. Subsequently, leading to the issue of
whether it is hampering the fair trial of the victim. Further, some believe that such shift of
persuasive burdens which require the accused to prove on a balance of probabilities, a fact
which is essential in determination of guilt or innocence is violative of the presumption of
innocence.16

In answering this, the researcher has observed that the cases under section 106 usually state
what has been stated by the Supreme Court in the case of Ram Ghulam Chaudhury that “It is
held that positive facts must always be proved by the prosecution but that the same rule cannot
always apply to negative facts. It is held that when a person does not act with some intention
other than that which the character and circumstances of the act suggest, it is not for the
prosecution to eliminate all the other possible intentions.” The justification for these lines thus
lies within the words „especially within the knowledge‟. Hence, the prosecution is not expected
to know of these things and it is not possible to expect them to prove something which is almost
impossible. Hence, this shifting of onus would not be violative to the concept of fair trial as the
gist of it lies in the fact that section 106 is in search for the truth which is the purpose of a
trial.17

Thus, the researcher in the next segment of the paper would now move on to examine the phrase
“especially within the knowledge” as mentioned under section 106 of the Evidence Act.

15
As defined under section 2(u) of the Criminal Procedure Code, 1973.
16
Peter Lewis, “The Human Rights Act 1998: Shifting the Burden” (8) Criminal Law Review, 667-673 (2000)
at
671.
17
See generally, Harish B.N., “Burden of Proof vis-à-vis General Exceptions- A Burden on the Prosecution?”
6(1)
Student Bar Review, 122-126 (1994).

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 II. “ESPECIALLY WITHIN KNOWLEDGE”

The researcher in this segment will via various illustrations in various statutes examine the
phrase “especially within the knowledge”. In Shambu Nath Mehra v. The State of Ajmer, the
Supreme Court examined the phrase microscopically further by stating that the word
„especially‟ would mean that the prosecution would not be able to know those facts even after
exercising due diligence.18

The other issue which according to the researcher which comes up is whether mens rea of the
accused would fall under his „special knowledge‟. If it is taken to fall under the special
knowledge of the accused then the burden which essentially would be shifting would be legal
burden and not the evidential burden. Since, mens rea forms an essential ingredient in any
criminal offence. Hence, according to the researcher the inability of the prosecution to prove
mens rea and shifting of the burden on the accused under section 106 would clearly be wrong
as the prerequisite of establishment of prima facie case would not have been satisfied. Hence,
when similar issue came up before Supreme Court in Parminder Kaur v. State of U.P., it was
held that the inability of the prosecution to prove even one element of an offence would amount
to no crime.

In 2009 judgment of Bimla Devi, a bus driver and conductor were alleged to have caused the
death of a man standing behind the bus due to their negligence of not checking at the back
before reversing. The accused contented that the deceased had died the previous evening and
they had found the dead body wrapped in a blanket at a close distance from the bus. In this
case, since the post mortem report also showed that the deceased had died of a brain injury and
the body was found near the bus, it was therefore difficult for the Supreme Court to believe the
version of the accused. Hence, the Court in this case shifted the onus on the accused under
section 106 of the Evidence Act on the accused to create a preponderance of probability by
bringing out facts which were within the special knowledge of the accused.19

It can be inferred from the Allahabad High Court decision of Nilamber v. State that, for section
106 to apply the facts must be of such a nature which could only be within the knowledge of
the accused and no one else. For instance, in this case the postman was alleged of
misappropriating money order which he contended that he had delivered the same to a person

18
AIR 1956 SC 404
19
See generally, Priyadershini Narayanan, “The Burden of Proof on the Prosecution: An Excuse for Acquittal”
14(4) Central India Law Quarterly, 548-553 (2001).

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in the same house who had also got the authorized signature. Thus, in this case, it was only
within the special knowledge of the postman as to who the boy would have been who collected
the money order and got a false signature.

Other illustration which can be taken is in cases of Food Adulteration Act, 1954. In Vijayee

Singh‟s case, the court made a reference to this example to show the applicability of section

106. Court stated that if the accused pleaded a defence under section 19 of FAA, 1954, the
burden is on him to establish the same since the warranty on which he would be relying would
be a circumstance only within his knowledge.

A subsequent issue according to the researcher which needs examination is whether it is

reasonable for a court to expect the accused to remember the facts which are especially within
his knowledge if a long span of time has passed from the happening of those events. This can
specially be taken as an important issue in India where there are a large number of back log of
cases and thus, it takes a lot of time before a case comes up for hearing. This issue can be
further be enlarged in light of less serious offences for instance the one which has statutorily
been covered under section 106 illustration (b). The case of Shambu Nath Mehra v. The State
of Ajmer, is the best illustration in this regard. The case dealt with the violation of section 112
and 113 of the Indian Railways Act for travelling without a ticket. When the case came before
the court it was already three years from the date of the event. Hence, when the onus was put
on the accused he contended that “It is humanly impossible to give accurate explanations for
the journeys in question after such a lapse of time”. This argument was accepted by court.
Hence, the court held that the prosecution on the date of hearing had as much information as
the accused. Thus, the fact of the accused purchasing the railway ticket was not „especially
within the knowledge of the accused.

NEGOTIABLE INSTRUMENTS ACT, 1881

The other illustration in this regard is section 138 and 139 of the Negotiable Instruments Act,

1881. The link which can be is that the presumption is against the drawer that he was aware of
the insufficiency of funds in his account.20 Hence, in order to prove the contrary the onus can
be put on the accused under section 106 of the Evidence Act to rebut the presumption. Section

20
Bhashyam and Adiga, The Negotiable Instruments Act with Exhaustive Case Law on Dishonour of Cheques
Including Specimen Notices and Complaints (17th edn., New Delhi: Bharat Law House, 2006) at 766.

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139 also puts the evidential burden on the accused of proving that the cheque was not received
by bank towards the discharge of any liability.21

RES IPSA LOQUITUR

Where the loss itself is prima facie evidence of negligence, or sometimes it may be difficult for
the plaintiff to prove defendant’s negligence as the true cause of accident. In these cases where
the information would only be within the knowledge of the defendant the principle of res ipsa
loquitur is applied. In such cases section 106 provides an efficient aid. It is an established
principle that once the court affirms the applicability of the principle res ipsa loquitur the onus
of proof automatically shifts on the accused to prove in his defence that he the act complained
of could reasonably happen without negligence on his part or the intention which may be
conferred from an act was not the one with which an act was done. This is because this intention
or the fact other than the one which can be inferred would be within the special knowledge of
the accused. Hence, section 106 would be applicable.

ALIBI

The plea of alibi means the physical impossibility of presence of the accused at the scene of
offence by reason of his presence at another place. Circumstances leading to alibi are believed
to be within the knowledge of the accused. Thus, he has to prove the same satisfactorily under
section 106.22

In the case of Narendra where the husband was accused of murdering his wife he contended
that he had gone to buy milk at the time the murder was committed. The onus of proof under
section 106 is on him to prove the same. Since, his act of being outside the house at that time
is only within his special knowledge.

21
Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897
22
Vijayee Singh & Ors. v. State of U.P., AIR 1990 SC 1459

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 CONCLUSION

In conclusion, it is submitted that section 106 is not to shift the burden of proving the case but
the shift is only of onus to prove evidence. Section 106 is just a device in the hands of the
prosecution to make ensure that an innocent is not convicted. It may have been tried to be used
by the prosecution to shirk their responsibility is some form but this has not been encouraged
by the courts.

Section 106 has thus, been seen as an exception to section 101 rather than an overriding
provision. The various case laws used in this paper have so far not shown any misuse of the
provision by the prosecution. Hence, according to the researcher the provision is an essential
one for fair trial to enable the accused to come forth to prove facts which could be used in self
defence. Thus, section 106 ensures that the presumption of fact is not blindly upheld but is
reaffirmed by giving the accused also an opportunity.

Therefore, the researcher concludes that it is a provision which is in furtherance of seeking the
truth which is the main purpose of a trial. The thesis statement has been hence proved.

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 BIBLIOGRAPHY

ARTICLES
1. Harish B.N., “Burden of Proof vis-à-vis General Exceptions- A Burden on the
Prosecution?” 6(1) Student Bar Review 122-126 (1994).
2. K. N. Chandrasekharan Pillai, “Burden of Proof in Criminal Cases and the Supreme
Court: New Trends” 25(1-4) Cochin University Law Review 407-422 (2001).
3. Peter Lewis, “The Human Rights Act 1998: Shifting the Burden” (8) Criminal Law
Review 667-673 (2000).
4. Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of
the Malimath Committee Report” 17 Student Advocate 38-58 (2005).

BOOKS
1. Bhashyam and Adiga, The Negotiable Instruments Act with Exhaustive Case Law on
Dishonour of Cheques Including Specimen Notices and Complaints (17th edn., New
Delhi: Bharat Law House, 2006).
2. Cross and Tapper on Evidence (C. Tapper ed., 11th edn., Oxford: Oxford University
Press, 2004).
3. Field‟s Commentary on Law of Evidence Volume IV (G.S. Chaturvedi ed., 12th edn.,
Delhi: Delhi Law House, 2001).

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