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Report No. 185

Section 106

This section refers to the question 'Burden of proving fact especially within knowledge'. It reads as follows:

"Section 106: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".

There are two illustrations below Section 106. These are as follows:

"(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

The word 'especially' indicates that the person who has the knowledge of a fact is expected by the law, to discharge the burden. The Supreme Court cautioned in Shambu Nath v. State of Ajmer: AIR 1956 SC 404 which was a case of an accused having travelled in second class in a train without paying the fare that 'an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit'. The Court pointed out that ill. (b) is a special situation because railways will find it impossible where a passenger has started his journey or what is his destination.

The Supreme Court pointed out that this section cannot be applied to an accused guilty of murder on the plea that if he had murdered, he must know more. That would amount to first presuming that he is the murderer. It must be a special case, the word 'especially' is important. The section has been considered by the Supreme Court in a large number of cases after 1956, the latest being Vishal v. Veerasamy: 1991(2)SCC 375; Jawaharlal Vadi v. State of J&K: 1993 (2) SC 381; Balram v. State of Bihar: 1997 (9) SCC 338; Sanjay Kumar Bajpai v. Union of India: 1997(10) SCC 312. The Privy Council pointed out in Seniviratne v. R : AIR 1938 PC 289 that the section does not cast the burden of proving innocence on the accused.

In England, quite recently, the right to 'silence' of the accused has been restricted by sections 34, 36 and 37 of the Criminal Justice and Public Order Act, 1994, whereby if the suspect or the accused does not, after certain facts are proved, answer when he is reasonably expected to speak, the Court may draw such inference from such failure as it may appear reasonable. The judgment of the European Court in Murray v. UK 1996 Vol. 22, EHRR 29, however, permitted such an inference only if the suspect or accused, if he had been told of his right to the presence of a lawyer at the time of interrogation.

Or else, Article 6 of the European Convention could be said to have been violated. This led to insertion of such a requirement in these three sections by Section 58 of the Youth Justice and Criminal Evidence Act, 1999. In another case Condron v. UK: (2001) 31 EHRR 1, in the year 2001 before the European Court, it re-affirmed this view but it referred to the answer of the suspect/accused and to the advise of his lawyer. See also Averill v. UK (2001) 31 EHRR 839.

A lawyer might advise his client to remain silent. Even if the lawyer's advice was wrong, the accused would suffer. There is a lot of criticism of this procedure in UK for requiring the accused and his lawyer to give evidence. This could, in India violate the guarantee in Article 20(3) of our Constitution against self-incrimination. Recently, the Australian Law Commission has refused to adopt the English amendments.

All these aspects have been referred to in the Report given recently in (our Report No. 180) on Right to Silence wherein it was recommended that in our country, the right to silence cannot be diluted.

The Irish Law Commission has recently given a Report [Report of the Committee to Review the Offences Against the State Act, 1939-1988, May 2002] and chapter 8 thereof deals with the Right to Silence. After pointing out various difficulties that are being faced by courts in Ireland, consequent to dilution of the right to silence, the Commission also referred to the two recent cases of the European Court in Condron v. UK (2001) 31 EHRR 1 and Averill v. UK (2001) 31 EHRR 839 and held that for want of compliance by the police of the condition of informing the accused of his right to call for a lawyer, the accused in the aforementioned cases have to be acquitted.

We agree with para 47.28 of the 69th Report that Section 106 does not require any amendment.

Review of the Indian Evidence Act, 1872 Back

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