1. PRINCIPLE OF THE SECTION
The section 106 of the Indian Evidence Act, 1872 is read as,
“When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
This section is an exception to the general rule contained in section 101 of the act, namely, that the burden is on the person who asserts a fact. The basic principle pivoting this section is that it is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant. In Gurbakish Singh v Gurdial Singh, it was held that it is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.
This section comes into picture only when the prosecution has proved its case beyond reasonable doubt that the accused has to prove the fact within his special knowledge to establish that he is not guilty . The burden of accused is discharged if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt . It is well settled that only when the prosecution led evidence, if believed, which would sustain a conviction, then the burden of proving anything would lie on the accused under section 106 of the act . This section applies only to the parties to a suit. The primary objective of the Court is to meet the epitome of Justice which can be unleashed only on account of the corroboration made by the person knowing the full truth facts and circumstances associated with the matter.
1.1. JUDICIAL TRENDS
a. In Senevirantne v R, the court held that Section 106 does not cast any burden on the accused to prove that he had not committed the offence by proving facts lying specially within the knowledge, that if anything is unexplained which the jury think the accused could explain then they, not only may, but must, find him guilty .
b. In Sawal Das v State of Bihar , the SC held that section 106 is applicable only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did the particular act. The observation of the SC was antonymous to the narrow construction of the section.
c. In Gurubachan Singh v State of Punjab, the court held that Section 106 only puts the evidential burden on the accused and it is not the legal burden which shifts from the prosecution. Section 106 is just a mere tool to assist the prosecution rather than a loophole in the law for prosecution to shrink their responsibility of proving a criminal case beyond a reasonable doubt.
2. INTENTION & MENS REA
In Srinivas Mall v Emperor, it was held that the court should bear in mind that unless the statute rules out mens rea as a constituent part of the crime an accused should not be found guilty an offence against the criminal law unless he has got a guilty mind. Analysing from the front of Section 106, it is well settled that Intention or guilty knowledge of the accused has to be proved by the prosecution and it is not the accused . This was also elaborated and iterated by the Court in the case of Gurubachan Singh.
It is not for prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. If the accused had a different intention, that is fact especially within his knowledge he must prove .
3. SITUATIONAL ANALYSIS
3.1. IN THE CASE OF ALIBI.
It is well settled in the case of Gurucharan Singh v State of Punjab, that burden to proof of alibi lies on the accused as it is specially within his knowledge but failure to prove does not help the prosecution, which has to prove the guilt beyond a reasonable doubt. This clearly holds and affirms the pivotal concept of the section as elucidated earlier.
3.2. PREVENTION OF CORRUPTION
The Supreme Court held that the offence under Section 5(1)(c) of the Prevention of Corruption Act is constituted when the property has been received by the accused for or in the name, or on account of the master or employer and it is complete when the servant fraudulently misappropriates that property. Therefore, in this regard the accused has to prove his innocence by virtue of the action of Section 106 of the Act .
3.3. N.D & P.S ACT
In Jagdish Budhroji Purohit v State of Maharashtra, it was held that when the factory from where the psychotropic substances were seized belonged to the accused, then burden was on him to prove how the offending articles came to be found in his factory. This again establishes the concept of special knowledge and jurisprudence of Section 106 of the Act.
3.4. NON-DELIVERY OR SHORT DELIVERY OF GOODS- RAILWAY
There is a duty on the part of the railway to disclose the manner of dealing with the consignments, as it includes those facts which are specially within the knowledge of the Railway administration and it must prove them . There is nothing in section 74-D of the Railways Act to indicate any legislative intent to override the dynamic provisions of Section 106 or Section 114 of the Evidence Act .
Under Section 80 of the Railways Act, there is a burden on the plaintiff to prove that the goods sent through railway was lost or damaged and he cannot take advantage of section 106. In the case of claim for compensation from railways, if the plaintiff does not call for any disclosure from railways, it was held that no duty lies on the railway to disclose anything or how the consignment was dealt with during the transit and no presumption can be drawn against the railway. However, the railway gets the immunity under section 74-A of the Railways Act, that short or defective delivery was due to the defective packing .
3.5. NEGLIGENCE
From the general perspective in the case of negligence, the burden of proof of negligence is on the part of the defendant lies on the plaintiff, but in the situations of res ipsa loquiotor, the burden lies on the defendant to show that he was not negligent . Therefore, the principle of section 106 is based on the ideology of res ipsa loquitor.
In the above cited case, where due to rash and negligent driving the bus turned turtle and by virtue of res ipsa loquiotor the negligence on the part of driver was presumed. It is to be noted that the best defence against negligence would be of the driver himself under section 106 of the Evidence Act (as it will amount to. Special knowledge of the fact, as of how bus met with an accident).
3.6. MASTER- SERVANT & HUSBAND-WIFE
In the case of a servant charged with misappropriation of goods of his master, if the failure to account is due to an accidental loss, the facts being within the servant’s knowledge, it is for him to explain the reason of the loss, by the action of Section 106 of the Act . This is analogous to the principle of the section 106, as the person having the special knowledge of the facts needs to assert and prove his case. In an application for maintenance by a wife, the onus is on the husband to disclose his income, by virtue of Section 106 . (As it is only within the knowledge of the husband).
3.7. FACTS WITHIN THE KNOWLEDGE OF THE PARTY
a. In case a dead body of a rape victim is found inside the house of the accused, the burden is on him to explain how the dead body happened to be there .
b. Where a housewife died of drowning in the well in the house of the in-laws, and at the time of the incident only accused were present in the house, burden was on them to prove what events happened that caused the death.
In these scenarios two things are pivotal which bring the role of section 106 into action,
i. Burden of Proof
ii. Special Knowledge of the accused.
This is because, what happened in one’s house or at a specific place and time can only be explained by the person witnessing it.
1. UNDERSTANDING & CONCLUSION
a. 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 one may shift as per the need. Hence it is not the burden of proof that shifts, but the onus of proof that shifts. Thus, there is also a distinction between the terms ‘burden’ and ‘onus’. 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.
b. Evidential burden, on the other hand, is an 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. The object of placing the evidential burden on the defendant can be seen as a latent force to make the accused to go into the witness box and give evidence.
c. 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 is subject to the rule. Thus Section 106 is an exception to Section 101 of The Indian Evidence Act. The two judge bench of Gujarat High Court in State v Dhulaji Bavaji held that Section 106 could not be used to undermine that burden never shifts from the prosecution.
d. In Shanbhu Nath Mehra v State of Ajmer it was observed that Section 106 lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 10 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience.
e. The word “especially” stresses that it means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder.
f. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.