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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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.
1
K. N. Chandrasekharan Pillai, “Burden of Proof in Criminal Cases and the Supreme Court: New Trends” 25(1-4) Cochin University Law Review, 407-422 (2001) at 416.
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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
2
Gopi Nath, Sir John Woodroffe and Syed Amir Ali‟s Law of Evidence Vol.4 (16th edn., Allahabad: The Law Book Company Pvt. Ltd., 1996) at 2166. 3 Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report” 17 Student Advocate , 38-58 (2005) at 42 4 Cross and Tapper on Evidence (C. Tapper ed., 11th edn., Oxford: Oxford University Press, 2004) at 132. 5 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 prosecution‟s 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
Field‟s 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 accused‟s 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 Prosecution’s Burden The researcher will now move on to examine whether this section has been misused by the prosecution by trying to shirk off their responsibilities. It is well established that burden of proving the guilt of the accused is on the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.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 accused‟s special knowledge as to where they had disappeared. Also, because no satisfactory explanation had been furnished by him either in the statement under section 313 Cr.P.C., or by way of evidence. The court in this case, held that the accused cannot be convicted for murder because he did file an FIR against another man and when police was unable to arrest him, the accused instead was arrested for the murder. Hence, no adverse inference can be drawn under section 106. According to the researcher many a times, prosecution has misused section 106 in order to determine jurisdictional issues. This according to the researcher is a shirking off the responsibility by the prosecution. Since, jurisdictional issues are important in establishing a prima facie case. This can be illustrated via two case laws.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 Magistrate‟s 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-à-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 Singh‟s 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 time”40. 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 defendant‟s negligence as the true cause of accident. In these cases where the information would only be within the knowledge of the defendant the principle of res ipsa loquitur is applied.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-à-vis General Exceptions- A Burden on the Prosecution?” 6(1) Student Bar Review 122-126 (1994). 2. K. N. Chandrasekharan Pillai, “Burden of Proof in Criminal Cases and the Supreme Court: New Trends” 25(1-4) Cochin University Law Review 407-422 (2001). 3. Peter Lewis, “The Human Rights Act 1998: Shifting the Burden” (8) Criminal Law Review 667-673 (2000). 4. Pooja Garg, “Shifting Trends in Burden of Proof and Standard of Proof: An Analysis of the Malimath Committee Report” 17 Student Advocate 38-58 (2005). 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. Field‟s 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 Ali‟s 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-à-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-à-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-à-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). Page 15
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 Page 16
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 appellant‟s 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 accused‟s 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 Railway‟s 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 Page 18
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 Court‟s 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 Magistrate‟s 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 prosecution‟s 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 Page 19
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 prosecution‟s 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 appellant‟s 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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