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The Scope of S.

106 of the Evidence Act: Recent Developments

TABLE OF CONTENTS
Contents
Table of Contents ............................................................................................................................ 1
Index of Authorities ........................................................................................................................ 2
Indian Cases ................................................................................................................................ 2
Table of Statutes ......................................................................................................................... 2
Introduction ..................................................................................................................................... 3
Aim ............................................................................................................................................. 3
Scheme ........................................................................................................................................ 3
I.

Evidential Burden of Proof ...................................................................................................... 4
Presumption of Fact .................................................................................................................... 5
Shirking off Prosecution‟s Burden.............................................................................................. 7

II.

“Especially Within Knowledge” .......................................................................................... 9
Negotiable Instruments Act, 1881 ............................................................................................ 11
Res Ipsa Loquitur ...................................................................................................................... 11
Alibi .......................................................................................................................................... 12

Conclusion .................................................................................................................................... 12
Bibliography ................................................................................................................................. 14
Articles ...................................................................................................................................... 14
Books ........................................................................................................................................ 14
Annexure: Annotated Bibliography .............................................................................................. 15
Articles ...................................................................................................................................... 15
Indian Cases .............................................................................................................................. 16

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The Scope of S. 106 of the Evidence Act: Recent Developments

INDEX OF AUTHORITIES
Indian Cases
1. Badshah and Ors. v. State of U.P., (2008) 3 SCC 681
2. Bhoora v. State of Uttar Pradesh, 2009 INDLAW ALL 145
3. Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706
4. Cholan Roadways Limited v. G. Thirugnanasambandam, AIR 2005 SC 570
5. Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
6. Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897
7. Murlidhar and Ors. v. State of Rajasthan, (2005) 11 SCC 133
8. Narendra v. State of Karnataka, AIR 2009 SC 1881
9. Nilamber v. State, AIR 1957 All 381
10. Parminder Kaur v. State of U.P., MANU/SC/1765/2009
11. Rabari Ramji Arjan v. State, 1953 INDLAW GUJ 61
12. Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842
13. Sawal Das v. State of Bihar, AIR 1974 SC 778
14. Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404
15. State of Chhatisgarh and Ors. v. Dhirjo Kumar Sengar, AIR 2009 SC 2568
16. State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199
17. State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988
18. State v. Dhulaji Bavaji, AIR 1963 Guj 234
19. Sucha Singh v. State of Punjab, 2001 CriLJ 1734
20. Vijayee Singh & Ors. v. State of U.P., AIR 1990 SC 1459
21. Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346

Table of Statutes
1. The Food Adulteration Act, 1954
2. The Indian Evidence Act, 1872
3. The Indian Penal Code, 1860
4. The Indian Railways Act, 1989
5. The Negotiable Instruments Act, 1881

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Page 3 . This section is only applicable once the prosecution has proved the prima facie case against the accused. 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 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. 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. 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. Chandrasekharan Pillai. “Burden of Proof in Criminal Cases and the Supreme Court: New Trends” 25(1-4) Cochin University Law Review. Aim The aim of this research paper is thus. Scheme Hence. 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. to examine the scope of section 106 of the Evidence Act especially in light of its recent developments. Further. 106 of the Evidence Act: Recent Developments INTRODUCTION The section 106 of the Indian Evidence Act.The Scope of S. N. 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. The researcher shall thus.1 Hence. 1 K. 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. 407-422 (2001) at 416. The first segment concludes by critically analyzing the role of prosecution in light of section 106. be proving these various issues and the consequential sub-issues which may arise during the course of her arguments. 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 first kind of burden is the legal burden while the second can be referred to as evidential burden. Sir John Woodroffe and Syed Amir Ali‟s Law of Evidence Vol. Page 4 . Oxford: Oxford University Press. 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 Scope of S.. it is not the burden of proof which shifts rather the onus of proof which shifts. the section 2 Gopi Nath.3 Evidential burden on the other hand. “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report” 17 Student Advocate . is the obligation to show. EVIDENTIAL BURDEN OF PROOF In this section of the research paper. To be able to further this discussion the meaning of „burden of proof‟ needs to be clarified first. the second on may shift as per the need. 5 Ibid. Tapper ed.. 38-58 (2005) at 42 4 Cross and Tapper on Evidence (C. Ltd. I. The burden of proof has two distinct meanings. While. the first kind of burden remains on one side throughout the case.5 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. One must first be able to understand section 101 to be able to draw inference of the meaning of section 106. 106 of the Evidence Act: Recent Developments 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.. 1996) at 2166. Hence. there lies a distinction between the word „burden‟ and „onus‟ according to the researcher. the first being the burden of proof on pleadings which and the second being the burden of adducing evidence.. Allahabad: The Law Book Company Pvt. 3 Pooja Garg. if called upon to do so. 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. 11th edn. The legal burden rests on the party which asserts the affirmative of an issue in the beginning of the trial.4 (16th edn. 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. 2 Thus. 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. 2004) at 132. at 141.

The State of Ajmer. However in cases 6 Field‟s Commentary on Law of Evidence Volume IV (G. The accused as held in the case of Wasudeo Ramchandra Kaidalwar9 does not have to prove his innocence beyond all reasonable doubt but just bring out a preponderance of probability in the prosecution‟s case... Himachal Road Transport Corporation and Ors. v.12 The role of section 106 in strengthening this presumption has been seen in the case of Ram Ghulam Chaudhury and Ors. 11 See generally. 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.11 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. 2001) at 3841. Thus. does not intend to put the burden on accused to prove his innocence. AIR 2001 SC 2842.. 12 State of West Bengal v. The common thread running through most of these cases examined involve the question of corpus delicti as a proof of murder. Murlidhar and Ors.The Scope of S. Chaturvedi ed. 10 Bimla Devi v. 2009 (5) SCALE 706 at para 15. 7 Shambu Nath Mehra v. AIR 2000 SC 2988 at para 32. Mir Mohammad Omar & Ors. v. 13 2001 CriLJ 4632. v. Badshah and Ors. State of Bihar13 where it was held that if the prosecution had succeeded in proving facts from which a reasonable inference could be drawn regarding death. Delhi: Delhi Law House. Ram Ghulam Chaudhary and Ors.P. 2001 CriLJ 1734. Sucha Singh v. However. State of Punjab. State of Bihar.. (2005) 11 SCC 133. (2008) 3 SCC 681.. Dhulaji Bavaji8 held that section 106 could not be used to undermine that burden never shifts from the prosecution. AIR 2000 SC 2988. Mir Mohammad Omar & Ors. 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. State of U. onus could be shifted on the accused under section 106 to fill the gaps. 9 AIR 1981 SC 1186 at para 15. This shall be examined by dealing with a series of cases which with common factual situation of kidnapping followed by murder. section 106 is an exception to section 101 of the Evidence Act.S. the two observations which have been drawn by the researcher is that firstly. 12th edn. 106 of the Evidence Act: Recent Developments is subject to that rule. v. State of West Bengal v.6 Thus.7 The 2 judge bench of Gujrat High Court in State v. AIR 1956 SC 404. section 106 on the other hand.. These cases deal with the core issue of onus of proving murder. 8 AIR 1963 Guj 234. State of Rajasthan. Page 5 .10 Moving further it is necessary to examine the necessity of section 106 keeping in mind the theory of presumption of fact.

in that sense section 106 is a provision which is not anti-accused.14.The Scope of S.. Since. para 17 17 State of West Bengal v. it can also be seen as a spine to the concept of presumption fact. 106 of the Evidence Act: Recent Developments such as Mir Mohammad Omar & Ors.15 This issue has been answered in the Badshah case16 where it was held that in the case of murder of an abducted person. an inference of murder could safely be drawn without a necessity to proving the corpus delicti. either by direct or presumptive evidence. the researcher believes that though section 106 is a pro-accused provision in one sense yet. where the accused remained silent the presumed facts which were inferred were held to be true.17 Hence. analyzing further. v. para 39.18 Consequently. 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. if he is to rebut the presumption of fact which has been established. 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‟. The necessity of section 106 which in the view of the researcher can be inferred by from these cases is the fact that. the accused is 14 AIR 2000 SC 2988 Murlidhar and Ors. 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. Further. Hence. 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. the prosecution is not burdened to prove something which is impossible as a result of which the accused will be at an advantage. State of Rajasthan AIR 2005 SC 2345 16 (2008) 3 SCC 681. 18 Supra note 15. if the accused was not given a right to prove the facts within his knowledge which would include any kind of deviation. Since. 15 Page 6 . AIR 2000 SC 2988. Mir Mohammad Omar & Ors. the researcher feels that section 106 is a tool in the hands of prosecution which is promotes the idea of a fair trial. Since such facts would only be within the accused‟s special knowledge.

The argument put forth by the appellant was that the prosecution had not established that the accused had 19 Mir Mohammad case. AIR 1956 SC 404. Rabari Ramji Arjan v.P. prosecution has misused section 106 in order to determine jurisdictional issues. However. Criminal Procedure. because no satisfactory explanation had been furnished by him either in the statement under section 313 Cr. AIR 1963 Guj 234 Page 7 . This can be illustrated via two case laws.20 The Prosecution as stated earlier is only permitted to shift the onus after making out a prima facie case. 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.The Scope of S. 1953 INDLAW GUJ 61 and State v. the courts cannot record a finding of the guilt of the accused. Dhulaji Bavaji. Lucknow: Eastern Book Company.21 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. 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. 21 Shambu Nath Mehra v. AIR 2000 SC 2988. State of Uttar Pradesh22. This according to the researcher is a shirking off the responsibility by the prosecution. 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. jurisdictional issues are important in establishing a prima facie case.. Hence.C. Khelkar. The court in this case. 1949. The State of Ajmer.23 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.19 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. which was an offence under the Bombay Prohibition Act.. The case of Bhoora v. para 37 and Shambu Nath Mehra v. (5th edn. the accused instead was arrested for the murder. State. 106 of the Evidence Act: Recent Developments given a chance to rebut the presumption of fact which has been inferred from the series of facts. 2008) at 337. no adverse inference can be drawn under section 106. Also. 20 R.V. The State of Ajmer. AIR 1956 SC 22 2009 INDLAW ALL 145 23 See generally. Since. 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. or by way of evidence. According to the researcher many a times.

State24 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 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. His duty is to bring out the truth of the case irrespective of whether it goes against the victim or not. para 21. some believe that such shift of persuasive burdens which require the accused to prove on a balance of probabilities. The advocate general in Rabari Ramji Arjan v.25 Thus. v. if the prosecution leads no evidence as to the place of the commission of the offence. v. it is certainly not incumbent upon the accused to prove where he committed it. 667-673 (2000) at 671. Sheikh and Anr.27 Subsequently. 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 emphatically for establishing facts necessary to give jurisdiction to the Court”. 1973. Thus. 29 Ram Ghulam Chaudhary and Ors. 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. 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 Human Rights Act 1998: Shifting the Burden” (8) Criminal Law Review. 106 of the Evidence Act: Recent Developments consumed liquor at any place within the jurisdiction of the Magistrate‟s Court. 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 Chaudhury29that “It is held that positive facts must always be proved by the prosecution but that the same rule cannot always apply to negative facts. AIR 1963 Guj 234 26 As defined under section 2(u) of the Criminal Procedure Code. Further. Hence.The Scope of S. AIR 2001 SC 2842. a fact which is essential in determination of guilt or innocence is violative of the presumption of innocence. Dhulaji Bavaji.28 In answering this. 25 Page 8 . It is held that when a person does not act with some intention 24 1953 INDLAW GUJ 61 State v. State of Gujrat. 27 Zahira Habibulla H. State of Bihar. in these two cases the court has been strict about letting the prosecutions shirk off their burden. The role of the prosecution26 has been taken to be as someone who is an officer of the court. leading to the issue of whether it is hampering the fair trial of the victim. AIR 2004 SC 346 28 Peter Lewis.

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. 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. MANU/SC/1765/2009 Page 9 . 122-126 (1994)... v.A Burden on the Prosecution?” 6(1) Student Bar Review.P. and punish the guilty. In Shambu Nath Mehra v.30 Hence. it was 30 See generally. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence. State of Gujrat. Sheikh and Anr. Parminder Kaur v. and must be conducted under such rules as will protect the innocent. Justice Pasayat in para 38 of the judgment: “Since the object of the criminal trial is to mete out justice and to convict the guilty and protect the innocent. “ESPECIALLY WITHIN KNOWLEDGE” The researcher in this segment will via various illustrations in various statutes examine the phrase “especially within the 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. Hence. 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.34 Hence.The Scope of S.P. AIR 2004 SC 346.” The justification for these lines thus lies within the words „especially within the knowledge‟. 31 Zahira Habibulla H. mens rea forms an essential ingredient in any criminal offence.N.33 The other issue which according to the researcher which comes up is whether mens rea of the accused would fall under his „special knowledge‟. State of U.31 Thus.” 32 AIR 1956 SC 404 33 AIR 1956 SC 404 34 See generally. State of U. it is not for the prosecution to eliminate all the other possible intentions. “Burden of Proof vis-à-vis General Exceptions. 106 of the Evidence Act: Recent Developments other than that which the character and circumstances of the act suggest. oral and circumstantial and not by an isolated scrutiny. the trial should be a search for the truth and not a bout over technicalities. Harish B. Since. 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. when similar issue came up before Supreme Court in Parminder Kaur v.. II. The State of Ajmer32. 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. 1954. 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. 37 AIR 1957 All 381. See generally. Court stated that if the accused pleaded a defence under section 19 of FAA. Other illustration which can be taken is in cases of Food Adulteration Act. 36 Page 10 . 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. 548-553 (2001). Priyadershini Narayanan. Thus. 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. 38 AIR 1990 SC 1459. 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. Himachal Road Transport Corporation and Ors. 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. State37 that. in this case. 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 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. In this case. In Vijayee Singh‟s case38..The Scope of S. the court made a reference to this example to show the applicability of section 106. since the post mortem report also showed that the deceased had died of a brain injury and the body was found near the bus. 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 in the same house who had also got the authorized signature.36 It can be inferred from the Allahabad High Court decision of Nilamber v. 2009 (5) SCALE 706. it was therefore difficult for the Supreme Court to believe the version of the accused. “The Burden of Proof on the Prosecution: An Excuse for Acquittal” 14(4) Central India Law Quarterly. 1954. 106 of the Evidence Act: Recent Developments held that the inability of the prosecution to prove even one element of an offence would amount to no crime. This can 35 Bimla Devi v. In 2009 judgment of Bimla Devi35.

42 Hiten P. Bratindranath Banerjee.41 Hence. 106 of the Evidence Act: Recent Developments specially be taken as an important issue in India where there are a large number of back log of cases and thus. AIR 2001 SC 3897 43 Supra note 6.44 In such cases section 106 provides an efficient aid.. Dalal v. The State of Ajmer. Veluswami and Ors. 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. 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”40. 39 Shambu Nath Mehra v. Hence. When the case came before the court it was already three years from the date of the event.43 or sometimes it may be difficult for the plaintiff to prove defendant‟s negligence as the true cause of accident. New Delhi: Bharat Law House.42 Res Ipsa Loquitur Where the loss itself is prima facie evidence of negligence. the fact of the accused purchasing the railway ticket was not „especially within the knowledge of the accused. Negotiable Instruments Act. v. The case of Shambu Nath Mehra v. at para 17. In these cases where the information would only be within the knowledge of the defendant the principle of res ipsa loquitur is applied.The Scope of S. 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). 1881. The case dealt with the violation of section 112 and 113 of the Indian Railways Act for travelling without a ticket. [1962] 1 SCR 929 44 Pushpabai Parshottam Udeshi and Ors. Ranjit Ginning & Pressing Co.. R. at 3863 and Gobald Motor Service Ltd. 2006) at 766. Hence.M. is the best illustration in this regard.K. 41 Bhashyam and Adiga. [1977] 3 SCR 372 para 6. 40 Page 11 . The State of Ajmer39. 1881 The other illustration in this regard is section 138 and 139 of the Negotiable Instruments Act. This argument was accepted by court. v. The Negotiable Instruments Act with Exhaustive Case Law on Dishonour of Cheques Including Specimen Notices and Complaints (17th edn. Ltd.. Section 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. AIR 1956 SC 404 Ibid. and Anr. Pvt. the court held that the prosecution on the date of hearing had as much information as the accused. 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. it takes a lot of time before a case comes up for hearing. Thus. and Anr.

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 onus of proof shifts on the defendant in this way. at 3872 49 Vijayee Singh & Ors. Thus. 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. However the plea of res ipsa loquitur can be rebutted by the defendant if he is able to bring sufficient evidence to do so. AIR 2009 SC 1881 Page 12 . State of Karnataka.48 Circumstances leading to alibi are believed to be within the knowledge of the accused.M. 46 Gobald Motor Service Ltd. [1962] 1 SCR 929 47 Cholan Roadways Limited. 106 of the Evidence Act: Recent Developments It is an established principle that once the court affirms the applicability of the principle res ipsa loquitur45 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 part46 or the intention which may be conferred from an act was not the one with which an act was done. Ltd. Thus. The onus of proof under section 106 is on him to prove the same.. Veluswami and Ors. and Anr. 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. Section 106 is just a device in the hands of the prosecution to make ensure that an innocent is not convicted.49 In the case of Narendra50 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.. As per Winfield and Jolowicz on Tort (9th edn. para 21 48 Supra note 6. Delhi: Eastern Law House Pvt. 47 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..The Scope of S. v. AIR 1990 SC 1459 50 Narendra v. It is a tort law principle used in cases of negligence. Hence. he has to prove the same satisfactorily under section 106. 45 It means things speak for themselves. Hence. section 106 would be applicable.. Since. CONCLUSION In conclusion. AIR 2005 SC 570. R. v. his act of being outside the house at that time is only within his special knowledge. the defendant could not raise the defence before the judge that there was no evidence. 1984) at 113. 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. State of U. 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.P.K.

106 of the Evidence Act: Recent Developments Section 106 has thus. the researcher concludes that it is a provision which is in furtherance of seeking the truth which is the main purpose of a trial. Hence. 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. Therefore.The Scope of S. The thesis statement has been hence proved. section 106 ensures that the presumption of fact is not blindly upheld but is reaffirmed by giving the accused also an opportunity. 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. Page 13 . Thus.

.S. “The Human Rights Act 1998: Shifting the Burden” (8) Criminal Law Review 667-673 (2000). “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report” 17 Student Advocate 38-58 (2005). “The Burden of Proof on the Prosecution: An Excuse for Acquittal” 14(4) Central India Law Quarterly 548-553 (2001). N.. 5. Books 1.V. “Burden of Proof in Criminal Cases and the Supreme Court: New Trends” 25(1-4) Cochin University Law Review 407-422 (2001). New Delhi: Bharat Law House. “Burden of Proof vis-à-vis General Exceptions. Field‟s Commentary on Law of Evidence Volume IV (G. 3. 2006). Lucknow: Eastern Book Company. Bhashyam and Adiga.. Sir John Woodroffe and Syed Amir Ali‟s Law of Evidence Vol.N. Harish B.. Page 14 .A Burden on the Prosecution?” 6(1) Student Bar Review 122-126 (1994). Ltd.. K.. Khelkar. 12th edn. Ltd. Tapper ed. Delhi: Eastern Law House Pvt. 2001). 11th edn. Chaturvedi ed.. Criminal Procedure.The Scope of S. Gopi Nath.4 (16th edn. Cross and Tapper on Evidence (C. 4. Delhi: Delhi Law House. The Negotiable Instruments Act with Exhaustive Case Law on Dishonour of Cheques Including Specimen Notices and Complaints (17th edn. 6.. (5th edn. Peter Lewis. 2. R. 1996) 5. 1984). 106 of the Evidence Act: Recent Developments BIBLIOGRAPHY Articles 1.. Winfield and Jolowicz on Tort (9th edn. 2008). 4. Oxford: Oxford University Press... 2. 2004). 3. Pooja Garg. Priyadershini Narayanan. Chandrasekharan Pillai. Allahabad: The Law Book Company Pvt.

38-58 (2005). “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report” 17 Student Advocate. The article examines the shifting of onus of proof as the evidential burden. in certain cases where there may be lacunae in the chain of events certain presumption of facts may be relied upon. To which the author has cited various case laws to show that even when the onus of proof shifts on the accused the prosecution still has the burden of proving a prima facie case. The article has been cited to bring up this issue and keep in mind of the researcher before making her arguments in favour of the shifting onus of proof provided under section 106. “Burden of Proof vis-à-vis General Exceptions. This article has been cited to understand the implications of the legal and the evidential burden of proof and its implications therein. This article highlights the common law remnants in the Indian legal system with respect to burden of proof vis-à-vis general exceptions. “Burden of Proof in Criminal Cases and the Supreme Court: New Trends” 25(1-4) Cochin University Law Review. 548-553 (2001). The article examines the place of general exceptions in criminal jurisprudence. It examines how the burden on the prosecution is an onerous task hence.  Peter Lewis. The author has based his arguments with his prime focus on the case of Woolmington v. The author believes that such a shift in onus makes people „presumptive criminals‟.A Burden on the Prosecution?” 6(1) Student Bar Review. Director of Public Prosecutions. The article critiques the shifting of the onus of proof on the prosecution.  K.N. The article has been used to examine the burden put on the prosecution. This has been pointed out as a violation of presumption of innocence by the author.  Priyadershini Narayanan.The Scope of S. 106 of the Evidence Act: Recent Developments ANNEXURE: ANNOTATED BIBLIOGRAPHY Articles  Harish B.  Pooja Garg.. This article is a critique of the burden of proof and the standard of proof as discussed by the Malimath Committee Report. “The Burden of Proof on the Prosecution: An Excuse for Acquittal” 14(4) Central India Law Quarterly. This article examines various case laws to infer that the legal burden is always on the prosecution and cannot be shirked off. the prosecution also requires assistance in various forms one such being that the prosecution need not prove that a case falls under general exceptions to that particular offence. The article also examines the standard of proof needed when the burden is on prosecution vis-à-vis when the onus is on the accused. 407-422 (2001). N. 667-673 (2000). Page 15 . In that context section 106 of the Evidence Act has been examined. Chandrasekharan Pillai. It examines the Human Rights perspective of the shifting onus. 122-126 (1994). “The Human Rights Act 1998: Shifting the Burden” (8) Criminal Law Review. The article has been cited in this regard. However.

However. Hence. oral and circumstantial and not by an isolated scrutiny. Since. 106 of the Evidence Act: Recent Developments This article examines the justification of burden of proof on the prosecution in correlation with the needs of the Indian legal system. the element of mens rea showing the objective of the accused for such offence cannot be concluded by the respondent. v. AIR 2004 SC 346 This case has been used to illustrate the fact that purpose of criminal trial is to bring out the truth and must be conducted under such rules as will protect the innocent and punish the guilty as per Pasayat J. MANU/SC/1765/2009 This case has been cited in this paper to bring up and examine the issue as to whether section 106 of the Evidence Act can be used by a party to put the burden on the accused to prove the element of mens rea. The issue in this was of improper conduct of trial by the public prosecutor by not examining the crucial witnesses and acting like a counsel for the accused and the wrong statement being taken as the FIR. Hence.. This case has been cited in the paper to draw a link between alibi and „special knowledge‟ as mentioned in section 106 of Evidence Act. the accused had filed an appeal stating his alibi that he had gone to purchase milk and was not in anyway involved with the crime. Various case laws have been examined in that context to show how only the preponderance of probabilities is sufficient standard for an accused in proving the onus which is cast upon him. Indian Cases  Zahira Habibulla H. in this case held that it is very difficult for the prosecution to prove guilt of the accused with regard to offences taking place inside the private household if they go by the strict principle of circumstantial evidence. State of Karnataka. hence is of the view that burden of proof beyond reasonable doubt is justified. Pasayat J. The issue was with regard to property dispute between two family members. The deceased in this case was the wife of the accused who was found dead in the bedroom of the matrimonial home. The author examines the superior resources of the state in proving any given case. of which one of them is under section 464 IPC created a false document to acquire the said property. AIR 2009 SC 1881 The appeal before Supreme Court lies on the judgment of High Court holding the accused guilty of murder under section 498A and 302 IPC. in such cases section 106 of the Evidence Act can be invoked. This article emphasizes on the need and importance of placing burden of proof on the prosecution. it was also held that the proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence. This case came up before Supreme Court as a special leave petition. State of Gujrat.  Parminder Kaur v.  Narendra v. v. On the statements given by the family members it was inferred that the couple were not on very good terms.P. AIR 2009 SC 2568 Page 16 . Sheikh and Anr.The Scope of S. Thus. This article has been cited with reference to preponderance of probability to be established by accused under section 106. Dhirjo Kumar Sengar. the respondent in his submission has put the onus of proving such objective on the accused Parminder Kaur under section 106. State of U.  State of Chhatisgarh and Ors.

v. Himachal Road Transport Corporation and Ors. the driver of the bus contended that before he started the bus only he found the deceased wrapped dead in a blanket. However. Hence. State of Rajasthan. there was no proof that the victim had actually died. the issue was whether the bus which is said to have killed the deceased constable was indeed involved in the accident or not. v. The issue here is with regard to the succession certificate obtained by an adopted son. This case has been used to show the true applicability of section 106 lies in the words „within special knowledge of the accused‟ and cannot just be used to fill the gap in the chain of events. Ram Ghulam Chaudhary and Ors. Mir Mohammad Omar & Ors. The appellant in this case had brutally assaulted the victim and given chhura blow on the chest after which he carried him away. The Supreme Court in this appeal has critiqued the decision of High Court for the misuse of section 106 of the Evidence Act in reaching its decision. the appellant was convicted for murder under section 302. The state then consequentially used section 106 of the Evidence Act as an argument to contend that no body knew what happened to the victim after they took him away. Badshah and Ors. State of West Bengal v. State of Bihar. thus inferring that it was within appellant‟s special knowledge. (2005) 11 SCC 133 This appeal deals with the issue of abduction and murder. The appellants contended that there was no sufficient evidence to prove murder as the corpus delicti had not been found as a result.. AIR 2009 SC 2819 In this appeal from the High Court of Himachal Pradesh. (2008) 3 SCC 681 The accused in this case was charged for commission of kidnapping and murder under section 364 IPC. v. this case has been used in the paper to reflect upon the necessity for section 106 of the Evidence Act in light of presumption of fact. There existed old enmity between the accused and the victim and the deceased while taking the victim away had stated that he would kill him. section 106 of the Evidence Act was examined. 106 of the Evidence Act: Recent Developments      This is a civil appeal. This case has been used to show that the burden of proving the fact that he was adopted was on the respondent as the records were contrary to it. Since.. Hence.The Scope of S. The issue before the court was on whom the onus lies to prove the murder as a result. AIR 2000 SC 2988 Page 17 . Bimla Devi v. The appellants have been convicted of charges under section 364 and 302 read with 34 of the Indian Penal Code. this case is one of the cases used by the researcher to examine what refers to „special knowledge‟ under section 106 of Evidence Act.. the state argued that dead body of an individual was not an essential prerequisite to prove murder. the court put the onus on the driver and the conductor under section 106 to prove the same. Thus. Murlidhar and Ors.P. State of U. AIR 2001 SC 2842 In this case. Since there were no dead body found the court was of the view that an inference of a murder of the abducted person could be drawn without having to prove the murder with the corpus delicti This case has been cited to show the line of recent developments of cases with regard to use of section 106 of Evidence Act in cases of kidnapping along with murder.

(1981) 3 SCC 199 The issue in this case is regarding disproportionate assets under section 5(2) read with section 5(1)(e). Hence the only point was whether the appellant was one of the murderers. This case has been cited to examine the distinction between legal and evidential burden in light of section 106 of Evidence Act. this case has been used to show the burden on the accused to prove who that boy was since it was within his „special knowledge‟. Hence.. PCA. This case has been used to examine the scope and ambit of section 106 as an exception to section 101 of the Evidence Act as well as link the same with Railway‟s Act.A. State of Maharashtra v.12 from the Government as T. Further. The State preferred an appeal against the acquittal of the accused by the Bombay High Court.The Scope of S. State of Punjab. G. the postman stated that he had given the money order to a boy in the house who had gone inside and got the form duly signed. The abductors were given an opportunity to fill the gap however. for two journeys. Also. AIR 2005 SC 570 Page 18 . the case has been used to examine the extent of burden on the accused which is to only bring out the preponderance of probability. This case has been used in the paper to examine the issue of presumption of fact under section 114 along with section 106 of the Evidence Act. Since the High Court in this case had misinterpreted the burden on prosecution. AIR 1956 SC 404 The accused in this case had obtained Rs. 1947. The prosecution in this case had proved before the Allahabad High Court that the money order was not given to Mohan Singh or to the other tenants living with him. There was no dispute that the deceased were shot dead by somebody on that particular night with AK-47 rifles. 30. Cholan Roadways Limited v. 106 of the Evidence Act: Recent Developments      The issue in this case was of abduction followed by murder. Sucha Singh v. Shambu Nath Mehra v.32. AIR 1957 All 381 The postman in this case was convicted under section 409 IPC for dishonestly misappropriating Rs. The State of Ajmer. for travelling without a railway ticket for two journeys. 2001 CriLJ 1734 The issue in this case is of kidnapping followed by murder of two boys by a 4 people. He was charged for not travelling at all or if he did. State. it has been used to examine the burden of proof on the prosecution in that light. However. Nilamber v. The payee in this case denied the delivery of the amount. The case also brings forth the issue of time lapse when examining „special knowledge‟ under section 106 of the Evidence Act. Thirugnanasambandam. The court in this case examined section 106 illustration (b) as the state contended that the burden of proving the payment for ticket was on the accused. on failing to do so. The court thus drew inference to cover the gap. The case has been used to examine the role of section 106 of the Evidence Act in filling up the gap in prosecution evidence. Wasudeo Ram Chandra Kaidalwar. the court finally did uphold the accused‟s argument regarding the impossibility to remember due to lapse of time. There arose a small gap in the chain of events. which he was supposed to disburse. However.

it would be covered by section 106 of the Evidence Act. which is „preponderance of probability‟ and applied the standard of proof required for a criminal trial. the driver had rebutted the presumption stating that the accident was due to the breakage of the rear central bolt of the bus. This case has been cited to show how onus of proof shifts on the defendant in the cases of res ipsa loquitur. The High Court‟s decision in this case that the accident was not caused by the break in the bolt was upheld by the Supreme Court. The court in this case. regard being had to the common course of natural events.P. The accused when examined under section 313 Cr. [1962] 1 SCR 929 The bus accident was caused in this case was presumed to be caused due to the negligence of the driver. the dead body of the wife and daughter of the accused were found in his fields. State v. could not provide a satisfactory explanation as to his not informing the police on the disappearance of his wife. As a result. Bhoora v. In this case thus. It was contended that they presume under section 114 of the Evidence Act that the accused must have consumed liquor at the very place where he was found by the police. This case has been cited to show the possible misuse of section 106 and prosecution‟s attempt to fill lacunae with it. The accused contended that the prosecution had not established that the accused had consumed liquor at any place within the jurisdiction of the Magistrate‟s Court. the principle of res ipsa loquitur was held to be applicable which was not correctly applied by the Industrial Tribunal. Dhulaji Bavaji. 1953 INDLAW GUJ 61 The case which has come before the Gujrat High Court is that the accused was found drunk and was alleged of behaving in a disorderly manner at Rajkot for which he had been sentenced to 3 months rigorous imprisonment and a fine of Rs. R. argued that the jurisdictional issue need not be proved by the prosecution since it was within the special knowledge of the accused thus. Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry.M. Rabari Ramji Arjan v. State. 500.K. held that the Prohibition Act under which he was charged did not put any burden on the accused to show that he was Page 19 . Veluswami and Ors. This case has been cited to draw an automatic shift in the burden of proof on the accused on the applicability of res ipsa loquitur. Hence.The Scope of S. Gobald Motor Service Ltd. The researcher has cited this case to examine the contentions raised by the state with regard to section 106 of the Evidence Act.. In this case.C. State of Uttar Pradesh. AIR 1963 Guj 234 The accused in this case was found drunk on the road unable to take care of himself. 106 of the Evidence Act: Recent Developments     The respondent in this case who was a bus driver met with an accident resulting in the death of 7 passengers. This case has been used to examine the shirking of the responsibility by the prosecution due to insufficient evidence and only circumstantial evidence. the state on the other hand. 2009 INDLAW ALL 145 This case came before the Allahabad High Court as an appeal from the additional Sessions judge court. and Anr. v. But in this case. The appellants contended that the bus was being driven in a rash and negligent manner.

Hence. 1954 as an example of section 106 and second to determine the onus of proof in case of alibi. 106 of the Evidence Act: Recent Developments drunk elsewhere from the place where he was found intoxicated. State of U. Bratindranath Banerjee.  Hiten P.” As the appellant had failed to do this. In this case. Negotiable Instruments Act. Page 20 . This case has been cited to show the shift in the onus of proof on the appellant. the appellant had issued four cheques to the Respondent. AIR 1990 SC 1459 This case been cited in two context. the SC upheld the decision of the Special Court and dismissed the appeal. Dalal v. v. this case has been cited to show the possible misuse of section 106 and prosecution‟s attempt to fill lacunae with it. it held that the presumptions had “to be rebutted by „proof‟ and not by bare explanations which are merely plausible. The court also.The Scope of S. Relying on precedent. 1881. that these had been dishonored. First to show section 19 of Food Adulteration Act. rejected the contention raised using section 106 Evidence Act on the grounds that the prosecution has to prove a prima facie case and a mere suspicion is not sufficient..  Vijayee Singh & Ors. The Supreme Court rejected the appellant‟s contention that he had disproved the existence of a „legally enforceable debt‟. AIR 2001 SC 3897 The Special Court had found the appellant guilty and sentenced him for offences under section 138. and that he had been served notice and had still failed to pay the amounts specified.P.