Section 106 of the Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act) deals with sifting the burden of proving a certain fact on the accused when that fact is particularly within his knowledge. This section is applicable only when the prosecution has proved the prima facie case against the accused. Hence, it is clear that the section is just an exception to section 101 of the Evidence Act and it does not remove the legal burden from the shoulder of the prosecution. Thus the burden here is the evidential burden the responsibility of proving which can be shifted to the accused.
Scheme of discussion:
The aim of this research is to examine the scope of section 106 of the Evidence Act especially in light of its recent developments with the help of decided cases. The researcher shall be arguing that section 106 of the Evidence Act puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Also, the researcher intends to prove that section 106 is a tool to assist the prosecution and not a loophole in the law for the prosecution to use in getting rid of their responsibility of proving a criminal case beyond reasonable doubt. Thus first, the researcher shall be examining the nature of burden of proof under section 106. Then the discussion would revolve around the need for section 106 and its correlation with section 101 of the Evidence Act. Several cases would be referred to by the researcher to successfully elaborate on the issues at hand.
The research questions that will be answered in this research paper are whether section 106 of the Evidence act frees the prosecution of proving a criminal case beyond reasonable doubt? Is section 106 a loophole in law?
The researcher has used a doctrinal method of research in this paper and several primary sources such as the Indian Evidence Act, The Code of Criminal Procedure have been used, and also several books such as Fields Commentary on Law of Evidence Volume IV edited by G.S Chaturvedi, Gopi Nath, Sir John Woodroffe and Syed Amir Ali's Law of Evidence Vol. , Criminal Procedure by R.V. Khelkar have been referred to extensively. Apart from these, several articles and internet sources have been referred to.
CHAPTER TWO
BURDEN OF PROOF BY WAY OF EVIDENCE
The burden of proof means the proof on pleadings and the burden of producing evidence. While, the first burden remains on one side throughout the case, the second one may shift from time to time. Hence, it is not the burden of proof which shifts rather the onus of proof which shifts [1] . 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. [2]
Evidential burden however, is the obligation to show that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue. 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, and is an exception to section 101 of the Evidence Act. [3] In State v. Dhulaji Bavaji [4] the court held that section 106 can not be used to negate the fact that burden never shifts from the prosecution. In the case of Wasudeo Ramchandra Kaidalwa [5] it was held that the accused does not have to prove his innocence beyond all reasonable doubts but just bring out a probability of the same.
In such cases where presumption becomes important, the court presumes the existence of certain facts in such cases to fill a void between the happenings of any two incidents in the corroborative chain of events. Section 106 strengthens this presumption. This happened in the case of Ram Ghulam Chaudhury and Ors. v. State of Bihar [6] where it was held that if the prosecution had succeeded in proving facts from which a reasonable conclusion can be reached, onus could be shifted on the accused under section 106 to fill the gaps. Also, in Mir Mohammad Omar [7] , presumed facts which were inferred were held to be true.
The importance of section 106 can be inferred from these cases and it can be seen that section 106 is a tool in the hands of prosecution. Also, its important for the accused because he is given a chance to rebut the presumption of fact which has been corroborated by the court.
Now, 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 find the accused guilty [8] . What will be analysed here is that to what extent is the prosecution has been allowed to shun their responsibility of the burden of proving.
In this point, the case of Bhoora v. State of Uttar Pradesh [9] , 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 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.
In another case called Rabari Ramji Arjan v. State [10] it was 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 held that here, the argument of the prosecution has to be established by the prosecution in all cases.
Similarly in the case of Ram Ghulam Chaudhury [11] it was said 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."
CHAPTER THREE
"ESPECIALLY WITHIN KNOWLEDGE"
In 2009 judgment of Bimla Devi [12] , a bus driver and conductor were alleged to have caused the death of a man standing behind the bus due to their negligence. 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.
In another case called Nilamber v. State [13] it was held 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. In this case the postman was alleged of misappropriating money order which he contended that he had delivered the same to a person 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 gave a false signature.
In the case of Vijayee Singh [14] , the court said that if the accused pleaded a defence under section 19 of Food Adulteration Act, 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.
However in the case of Shambu Nath Mehra v. The State of Ajmer [15] violation of section 112 and 113 of the Indian Railways Act took place as the accused travelled without a ticket. After three years from the date of the event the case came before the court. The accused contended that it is humanly impossible to give accurate explanations for the journeys in question after such a lapse of time, and this was accepted by court which held that accused purchasing the railway ticket was not especially within the knowledge of the accused.
Res Ipsa Loquitur
It means things speak for themselves. It is a tort law principle used in cases of negligence. The maxim evolved because in cases of trial by jury the judge could not leave the case to the jury if there was no evidence of negligence. Hence, in such cases if the plaintiff raised the plea of res ipsa loquitur implying that plaintiff could raise a prima facie case by using circumstantial evidence, the defendant could not raise the defence before the judge that there was no evidence.
However the plea of res ipsa loquitur can be rebutted by the defendant if he is able to bring sufficient evidence to do so. Thus, the onus of proof shifts on the defendant in this way. Where the damage itself is the primary evidence available against the accused, the principle of res ipsa loquitur is applied, and this is when section 106 is adequately applied. In such cases the onus of proof automatically shifts on the accused because this the fact would be within the special knowledge of the accused [16] .
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 [17] 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. In this point, the case of Narendra v. State of Karnataka [18] where the husband was accused of murdering his wife it was contended that he was at the market at the time of murder. In this case the onus of proving had shifted to him instead of the prosecution.
CONCLUSION
Therefore from the above discussion it can safely be concluded that section 106 only shifts the onus of adducing evidence and not the burden of proving the case beyond reasonable doubt. As it has been pointed out before, the section is a device in the hands of the prosecution to make ensure that an innocent is not convicted. Thus, section 106 ensures that the presumption of fact is not blindly upheld but is reaffirmed by giving the accused an opportunity too. Thus it is concluded that it is a provision which is in furtherance of finding the truth which is the main purpose of a trial.
