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

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
analyzing 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.

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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The Scope of S. 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.

I.

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.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. 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

Gopi Nath, Sir John Woodroffe and Syed Amir Alis 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
Ibid, at 141.

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

is subject to that rule.6 Thus, section 106 is an exception to section 101 of the Evidence Act.7 The
2 judge bench of Gujrat High Court in State v. Dhulaji Bavaji8 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 Kaidalwar9 does not
have to prove his innocence beyond all reasonable doubt but just bring out a preponderance of
probability in the prosecutions case.10 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.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. 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.12 The role of section 106 in strengthening this presumption has been seen in the case of
Ram Ghulam Chaudhury and Ors. v. 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, onus could be shifted on the accused under section 106 to fill the gaps. However in cases
6

Fields Commentary on Law of Evidence Volume IV (G.S. Chaturvedi ed., 12th edn., Delhi: Delhi Law House,
2001) at 3841.
7
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404.
8
AIR 1963 Guj 234.
9
AIR 1981 SC 1186 at para 15.
10
Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706 at para 15.
11
See generally, State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988; Sucha Singh v. State of
Punjab, 2001 CriLJ 1734; Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842; Murlidhar and
Ors. v. State of Rajasthan, (2005) 11 SCC 133; Badshah and Ors. v. State of U.P., (2008) 3 SCC 681.
12
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988 at para 32.
13
2001 CriLJ 4632.

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

such as Mir Mohammad Omar & Ors.14, 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.15 This issue has been answered in the Badshah case16 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.
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.17 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 accuseds
special knowledge.18
Consequently, analyzing 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
14

AIR 2000 SC 2988

Murlidhar and Ors. v. State of Rajasthan AIR 2005 SC 2345
16
(2008) 3 SCC 681, para 17
17
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988, para 39.
18
Supra note 15.
15

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The Scope of S. 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.
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.19

Shirking off Prosecutions 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.20
The Prosecution as stated earlier is only permitted to shift the onus after making out a prima
facie case.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. The case of Bhoora
v. State of Uttar Pradesh22, 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 accuseds 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.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, 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

19

Mir Mohammad case, AIR 2000 SC 2988, para 37 and Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC
404.
20
R.V. Khelkar, Criminal Procedure, (5th edn., Lucknow: Eastern Book Company, 2008) at 337.
21
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC
22
2009 INDLAW ALL 145
23
See generally, Rabari Ramji Arjan v. State, 1953 INDLAW GUJ 61 and State v. Dhulaji Bavaji, AIR 1963 Guj
234

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

consumed liquor at any place within the jurisdiction of the Magistrates Court. The advocate
general in Rabari Ramji Arjan v. 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 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.25 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
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 prosecution26 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.27 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.28
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 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. It is held that when a person does not act with some intention
24

1953 INDLAW GUJ 61

State v. Dhulaji Bavaji, AIR 1963 Guj 234
26
As defined under section 2(u) of the Criminal Procedure Code, 1973.
27
Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346
28
Peter Lewis, The Human Rights Act 1998: Shifting the Burden (8) Criminal Law Review, 667-673 (2000) at
671.
29
Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842, para 21.
25

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

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.30 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.31
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.

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 Ajmer32, 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.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. 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.34 Hence,
when similar issue came up before Supreme Court in Parminder Kaur v. State of U.P., it was
30

See generally, Harish B.N., Burden of Proof vis--vis General Exceptions- A Burden on the Prosecution? 6(1)
Student Bar Review, 122-126 (1994).
31
Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, AIR 2004 SC 346. 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, the trial should be a search for the truth and not a bout over technicalities, and must be conducted
under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond
reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and
not by an isolated scrutiny.
32
AIR 1956 SC 404
33
AIR 1956 SC 404
34
See generally, Parminder Kaur v. State of U.P., MANU/SC/1765/2009

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The Scope of S. 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.
In 2009 judgment of Bimla Devi35, 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.36
It can be inferred from the Allahabad High Court decision of Nilamber v. State37 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 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
Singhs case38, 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
35

Bimla Devi v. Himachal Road Transport Corporation and Ors., 2009 (5) SCALE 706.
See generally, Priyadershini Narayanan, The Burden of Proof on the Prosecution: An Excuse for Acquittal
14(4) Central India Law Quarterly, 548-553 (2001).
37
AIR 1957 All 381.
38
AIR 1990 SC 1459.
36

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The Scope of S. 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, 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
Ajmer39, 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 time40. 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.41 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 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.42

Res Ipsa Loquitur

Where the loss itself is prima facie evidence of negligence,43 or sometimes it may be difficult for
the plaintiff to prove defendants 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.44 In such cases section 106 provides an efficient aid.

39

Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404

Ibid, at para 17.
41
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.
42
Hiten P. Dalal v. Bratindranath Banerjee, AIR 2001 SC 3897
43
Supra note 6, at 3863 and Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
44
Pushpabai Parshottam Udeshi and Ors. v. Ranjit Ginning & Pressing Co. Pvt. Ltd. and Anr., [1977] 3 SCR 372
para 6.
40

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The Scope of S. 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. 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. 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.48 Circumstances leading to alibi are believed
to be within the knowledge of the accused. Thus, he has to prove the same satisfactorily under
section 106.49
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. 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.

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.

45

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. As per Winfield and Jolowicz on Tort
(9th edn., Delhi: Eastern Law House Pvt. Ltd., 1984) at 113.
46
Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
47
Cholan Roadways Limited, AIR 2005 SC 570, para 21
48
Supra note 6, at 3872
49
Vijayee Singh & Ors. v. State of U.P., AIR 1990 SC 1459
50
Narendra v. State of Karnataka, AIR 2009 SC 1881

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

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

BIBLIOGRAPHY
Articles
1. Harish B.N., Burden of Proof vis--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).
5. Priyadershini Narayanan, The Burden of Proof on the Prosecution: An Excuse for
Acquittal 14(4) Central India Law Quarterly 548-553 (2001).

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. Fields Commentary on Law of Evidence Volume IV (G.S. Chaturvedi ed., 12th edn.,
Delhi: Delhi Law House, 2001).
4. Gopi Nath, Sir John Woodroffe and Syed Amir Alis Law of Evidence Vol.4 (16th edn.,
Allahabad: The Law Book Company Pvt. Ltd., 1996)
5. R.V. Khelkar, Criminal Procedure, (5th edn., Lucknow: Eastern Book Company, 2008).
6. Winfield and Jolowicz on Tort (9th edn., Delhi: Eastern Law House Pvt. Ltd., 1984).

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

ANNEXURE: ANNOTATED BIBLIOGRAPHY

Articles
Harish B.N., Burden of Proof vis--vis General Exceptions- A Burden on the
Prosecution? 6(1) Student Bar Review, 122-126 (1994).
This article highlights the common law remnants in the Indian legal system with respect to
burden of proof vis--vis general exceptions. The author has based his arguments with his
prime focus on the case of Woolmington v. Director of Public Prosecutions. The article
examines the place of general exceptions in criminal jurisprudence. It examines how the
burden on the prosecution is an onerous task hence, 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 has been used to examine the burden
put on the prosecution.
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).
This article examines various case laws to infer that the legal burden is always on the
prosecution and cannot be shirked off. However, in certain cases where there may be lacunae
in the chain of events certain presumption of facts may be relied upon. In that context section
106 of the Evidence Act has been examined. 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 in this regard.
Peter Lewis, The Human Rights Act 1998: Shifting the Burden (8) Criminal Law
Review, 667-673 (2000).
The article critiques the shifting of the onus of proof on the prosecution. It examines the
Human Rights perspective of the shifting onus. The author believes that such a shift in onus
makes people presumptive criminals. This has been pointed out as a violation of
presumption of innocence by the author. 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.
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).
This article is a critique of the burden of proof and the standard of proof as discussed by the
Malimath Committee Report. The article examines the shifting of onus of proof as the
evidential burden. The article also examines the standard of proof needed when the burden is
on prosecution vis--vis when the onus is on the accused. This article has been cited to
understand the implications of the legal and the evidential burden of proof and its
implications therein.
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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The Scope of S. 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. This article emphasizes on the need and
importance of placing burden of proof on the prosecution. The author examines the superior
resources of the state in proving any given case, hence is of the view that burden of proof
beyond reasonable doubt is justified. 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. This article has been cited with reference to
preponderance of probability to be established by accused under section 106.

Indian Cases
Zahira Habibulla H. Sheikh and Anr. v. State of Gujrat, 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. 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, 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, oral and circumstantial and not by an isolated scrutiny.
Parminder Kaur v. State of U.P., 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. This case came up before Supreme Court as a special leave petition.
The issue was with regard to property dispute between two family members, of which one of
them is under section 464 IPC created a false document to acquire the said property.
However, the element of mens rea showing the objective of the accused for such offence
cannot be concluded by the respondent. Thus, the respondent in his submission has put the
onus of proving such objective on the accused Parminder Kaur under section 106.
Narendra v. State of Karnataka, 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. The deceased in this case was the wife of
the accused who was found dead in the bedroom of the matrimonial home. On the statements
given by the family members it was inferred that the couple were not on very good terms.
Pasayat J. 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. Hence, in such cases section 106 of the Evidence
Act can be invoked. Since, 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. 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.
State of Chhatisgarh and Ors. v. Dhirjo Kumar Sengar, AIR 2009 SC 2568
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The Scope of S. 106 of the Evidence Act: Recent Developments

This is a civil appeal. The issue here is with regard to the succession certificate obtained by
an adopted son. 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.
Bimla Devi v. Himachal Road Transport Corporation and Ors., AIR 2009 SC 2819
In this appeal from the High Court of Himachal Pradesh, the issue was whether the bus
which is said to have killed the deceased constable was indeed involved in the accident or
not. Since, the driver of the bus contended that before he started the bus only he found the
deceased wrapped dead in a blanket. Hence, the court put the onus on the driver and the
conductor under section 106 to prove the same. Thus, this case is one of the cases used by the
researcher to examine what refers to special knowledge under section 106 of Evidence Act.
Badshah and Ors. v. State of U.P., (2008) 3 SCC 681
The accused in this case was charged for commission of kidnapping and murder under
section 364 IPC. 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. The issue before the
court was on whom the onus lies to prove the murder as a result, section 106 of the Evidence
Act was examined. 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.
Ram Ghulam Chaudhary and Ors. v. State of Bihar, AIR 2001 SC 2842
In this case, the appellant was convicted for murder under section 302. The appellant in this
case had brutally assaulted the victim and given chhura blow on the chest after which he
carried him away. The appellants contended that there was no sufficient evidence to prove
murder as the corpus delicti had not been found as a result, there was no proof that the victim
had actually died. However, the state argued that dead body of an individual was not an
essential prerequisite to prove murder. 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, thus inferring that it was within appellants special knowledge. Hence,
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.
Murlidhar and Ors. v. State of Rajasthan, (2005) 11 SCC 133
This appeal deals with the issue of abduction and murder. The appellants have been
convicted of charges under section 364 and 302 read with 34 of the Indian Penal Code. 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. 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.
State of West Bengal v. Mir Mohammad Omar & Ors., AIR 2000 SC 2988

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

The issue in this case was of abduction followed by murder. There arose a small gap in the
chain of events.. The abductors were given an opportunity to fill the gap however, on failing
to do so. The court thus drew inference to cover the gap. 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.
Sucha Singh v. State of Punjab, 2001 CriLJ 1734
The issue in this case is of kidnapping followed by murder of two boys by a 4 people. There
was no dispute that the deceased were shot dead by somebody on that particular night with
AK-47 rifles. Hence the only point was whether the appellant was one of the murderers. The
case has been used to examine the role of section 106 of the Evidence Act in filling up the
gap in prosecution evidence. Also, it has been used to examine the burden of proof on the
prosecution in that light.
Shambu Nath Mehra v. The State of Ajmer, AIR 1956 SC 404
The accused in this case had obtained Rs.32.12 from the Government as T.A. for two
journeys. He was charged for not travelling at all or if he did, for travelling without a railway
ticket for two journeys. 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.
However, the court finally did uphold the accuseds argument regarding the impossibility to
remember due to lapse of time. 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
Railways Act. The case also brings forth the issue of time lapse when examining special
knowledge under section 106 of the Evidence Act.
Nilamber v. State, AIR 1957 All 381
The postman in this case was convicted under section 409 IPC for dishonestly
misappropriating Rs. 30, which he was supposed to disburse. The payee in this case denied
the delivery of the amount. However, 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 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. Hence, 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.
State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar, (1981) 3 SCC 199
The issue in this case is regarding disproportionate assets under section 5(2) read with section
5(1)(e), PCA, 1947. Since the High Court in this case had misinterpreted the burden on
prosecution. The State preferred an appeal against the acquittal of the accused by the
Bombay High Court. This case has been cited to examine the distinction between legal and
evidential burden in light of section 106 of Evidence Act. Further, the case has been used to
examine the extent of burden on the accused which is to only bring out the preponderance of
probability.
Cholan Roadways Limited v. G. Thirugnanasambandam, AIR 2005 SC 570
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The Scope of S. 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. The appellants contended that the bus was being driven in a rash and
negligent manner. In this case thus, the principle of res ipsa loquitur was held to be
applicable which was not correctly applied by the Industrial Tribunal. As a result, Industrial
Tribunal further failed to apply the correct standard of proof in relation to a domestic
enquiry, which is preponderance of probability and applied the standard of proof required
for a criminal trial. 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.
Gobald Motor Service Ltd. and Anr. v. R.M.K. Veluswami and Ors., [1962] 1 SCR 929
The bus accident was caused in this case was presumed to be caused due to the negligence of
the driver. But in this case, the driver had rebutted the presumption stating that the accident
was due to the breakage of the rear central bolt of the bus. The High Courts decision in this
case that the accident was not caused by the break in the bolt was upheld by the Supreme
Court. This case has been cited to show how onus of proof shifts on the defendant in the
cases of res ipsa loquitur.
Bhoora v. State of Uttar Pradesh, 2009 INDLAW ALL 145
This case came before the Allahabad High Court as an appeal from the additional Sessions
judge court. In this case, the dead body of the wife and daughter of the accused were found
in his fields. The accused when examined under section 313 Cr.P.C. could not provide a
satisfactory explanation as to his not informing the police on the disappearance of his wife.
The researcher has cited this case to examine the contentions raised by the state with regard
to section 106 of the Evidence Act. This case has been used to examine the shirking of the
responsibility by the prosecution due to insufficient evidence and only circumstantial
evidence.
Rabari Ramji Arjan v. State, 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. 500. The accused contended
that the prosecution had not established that the accused had consumed liquor at any place
within the jurisdiction of the Magistrates Court. Hence, the state on the other hand, argued
that the jurisdictional issue need not be proved by the prosecution since it was within the
special knowledge of the accused thus, it would be covered by section 106 of the Evidence
Act. This case has been cited to show the possible misuse of section 106 and prosecutions
attempt to fill lacunae with it.
State v. Dhulaji Bavaji, AIR 1963 Guj 234
The accused in this case was found drunk on the road unable to take care of himself. 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, regard being had
to the common course of natural events. The court in this case, held that the Prohibition Act
under which he was charged did not put any burden on the accused to show that he was
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The Scope of S. 106 of the Evidence Act: Recent Developments

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

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