The law of evidence requires the person who alleges a fact to prove the fact, and quiet rightly so. After all if one needs to obtain a particular relief from a court of law, he is required to affirmatively state his case with conviction and on the basis of the material evidence which can be led in to support such a claim. Given the adversarial system, a common law court is a judge of the evidence being brought before it and is not an investigator obliged to determine the respective claims of the parties on its own. The things are quiet different, however, when the circumstances relate to the evidence being available with the adversary. To provide for such circumstances, Section 106 of the Indian Evidence Act, 1872 provides separately. The law on the issue, has recently been explained by the Delhi High Court in the following terms;
47. What is the scope and purport of Section 106 of the Evidence Act?
48. Section 106 of the Evidence Act and the illustrations appended thereto reads as under:- “106. Burden of proving fact especially within knowledge- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.”
49. The earliest cases on the point are decisions of Privy Council reported as Attygalle v Emperor (1936) 38 Bom LR 700 and Stephen Seneviratne v The King (1937) 39 Bom LR 1. In the said decisions, the Lordships of Privy Council were dealing with Section 108 of Ceylon Evidence Act which corresponded to Section 106 of Indian Evidence Act. It was held that Section 106 of Evidence Act does not affect the onus of proof and throw upon the accused the burden of establishing his innocence.
50. The aforesaid decisions of Privy Council came to be considered by Supreme Court in the decision reported as Shambhu Nath Mehra v State of Ajmer AIR 1956 SC 404 wherein it was observed as under:- “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor A.I.R. 1936 P.C. 169 and Seneviratne v. R. [1936] 3 All E.R. 36, 49. ... We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.”
51. The decision of Shambhu's case (supra) was noticed by Supreme Court in the decision reported as State of WB v Mir Mohammad Omar AIR 2000 SC 2988. The relevant portion contained therein is being quoted herein under:-
“The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.
In this case, when prosecution succeeded in establishing the aforenarrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in condition such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody. .... In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.” (Emphasis Supplied)
52. It would be most apposite to quote following observations made by Supreme Court in the decision reported as Trimukh Maroti Kirkan v State of Maharashtra (2006) 10 SCC 681:-
“If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2003CriLJ3892 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”53. In the decision reported as Sarojini v State of M.P. 1993 Supp (4) SCC 632 accused Vinod and Sarojini, the husband and mother-in-law of the deceased, were charged with the offence of committing the murder of the deceased. The death of the deceased took place in a house which was in possession and the occupation of the appellants. Accused Vinod was employed in a bank and it used to take two hours to travel the distance between the house where the deceased had died and the place of work of accused Vinod. The Sessions Court convicted both the accused while High Court acquitted them. High Court acquitted accused Vinod on the ground that there is no evidence to establish that he was present in the house in question at the time of the death of the deceased while accused Sarojini was acquitted on the ground that murder was committed in such a manner that she alone could not have committed the same and that there is no clinching evidence to show that who had murdered the deceased. In appeal, Supreme Court convicted accused Sarojini on the grounds that she was occupant of the house where the deceased had died; that she had a motive to murder the deceased as she had demanded dowry from the family members of the deceased; that her conduct was suspicious and that she had taken a false defence. Even though there was evidence to show that accused Vinod was present in the house where the deceased died at the time of the death of the deceased, Supreme Court convicted him on the grounds that he was occupant of the house where the deceased died; that his conduct was suspicious; that he had taken a false defence; that he had not given an explanation in his statement under Section 313 Cr.P.C. and that accused Sarojini alone could not have murdered the deceased. The relevant discussion contained in the said decision is being quoted herein under:-“The question then is whether the husband and mother-in-law alone have committed the offence. Photography of the scene and the situation of the house disclose that the house consists of ground floor and the first floor. In the first floor, a bed room and another store room was found as per Panchanama. The dead body was found in the store room. There is no other way of ingress or egress to the first floor, except through the staircase lying in the ground floor of the house. As such it is impossible for any other persons to enter into the house except the inmates. Admittedly, the deceased and Sarojini alone were living in the house while Vinod was working at Sidhi, obviously he was coming and going to his place of duty. The distance between Rewa and Sidhi is 90 km. The High Court also accepted the possibility of the Vinod's coming to Rewa and after committing the offence leaving Rewa as the journey on the high-way would take hardly two hours to reach Sidhi. The murder was committed within hardly three months from the date of marriage and two to three hours after night meal. As per the evidence of DW-4 the deceased was happy in the marital home. It would, therefore, conclusively exclude the theory of suicide as pleaded by Sarojini and death was in the morning at 8.00 or 8.30 a.m. Within a short period of three months, there is no possibility of anyone developing such deep enimity with Rajini to put to end to the life of an young married woman. It must, therefore, be none other than the inmates of the matrimonial home.... When the deceased was done to death by asphyxia and thereafter the dead body was burnt soaking kerosene on a naked body, it would be obvious that more than one participated in committing the murder. The High Court also found that Sarojini had an associate to screen the evidence of murder. Who would be the other person? Here the presence of Vinod is called into picture. We are surprised to note that PW-10, the investigating officer, not only conducted perfunctory investigation but also gave evidence in a most unsatisfactory manner. He did not make any attempt during investigation to collect the evidence of the presence of Vinod at Rewa during the night or thereafter. The fact that more than one participated in the commission of the crime and the fact that there is no other person inimical to Rajini to commit the crime and the fact that it is not impossible for Vinod to immediately leave Rewa for Sidhi after committing the crime, would clearly connect him to be a participate criminal in committing homicide of his wife Rajini. Without his cooperation and participation in committing the crime, on the facts and circumstances, it is impossible for Sarojini alone to commit the crime. Except denial he offerred no explanation in his Section 313 statement. The false theory of suicide is also a circumstance to be taken into account. The remorseless conduct of Sarojini is a relevant fact, conduct of Vinod also is inculpatory. The normal human conduct would be that on hearing the news of the death of his wife he was expected to immediately reach home; to make enquiry for the cause of death and to take further actions which are absent in this case. Under these circumstances we have no hesitation to agree with the Sessions Court and disagree with the High Court that Vinod also was a participis criminal in committing the crime.”
54. The legal norm in respect of the application of Section 106 in a given case is contained in the following observations of Supreme Court in Mir Mohammad‟s case (supra):-
“The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference
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