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Report No. 69

Chapte 47

Fact Especially within a Party's Knowledge

Section 106

I. Introductory

47.1. Introductory.-

Section 106 creates a special rule relating to the burden of proof in cases where the fact in question is "especially within the knowledge of a particular person". In such a case, the burden of proving that fact is upon that person. Illustration (a) to the section tells us that 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. This illustration, it should be noted, could apply whether the case is civil or criminal. Illustration (b) states that if A is charged with travelling without a railway ticket, the burden of proving that he had a ticket, is on him.

The limitations of this illustration were explained in a case before the Supreme Court1, where the accused was prosecuted for drawing travelling allowance for travelling in the second class without having actually travelled. Illustration (b), it was held, was of no use for the prosecution, since knowledge of the fact was equally available to the prosecution in this particular case. The word "especially" in the section indicates that the fact must be preeminently or exceptionally within the knowledge of the person on whom the burden is sought to be placed under the section.

1. Shambhu Nath v. State of Ajmer, AIR 1956 SC 404 (see infra).

47.2. We shall now discuss a few salient points concerning the section, in view of the difficulty experienced in applying the section and in view of the fact that the situations in which the section may possibly be of use are of a recurring nature. This is desirable even though an amendment of the section may not be necessary.

47.3. Principle of ability.-

Primarily, the section is based on a consideration of the capability of parties. The ability of parties to give evidence may affect the burden of proof. A person will not, therefore, be forced to show a thing which lies not within his knowledge and which lies "peculiarly"-as the English law says-within the knowledge of the opposite party. It is this principle which is expressed in the section, which, however, uses the expression "especially within the knowledge". The principle is not necessarily based on an assumption that it is difficult to prove the negative-though, in practice, many cases do present that situation. The real rationale is the capability of parties, as stated above. We use "capability" as covering the resources at the command of a party. If a fact is peculiarly within the knowledge of a party and not easily within the knowledge of his opponent, then justice requires that he most prove it.

II. Limitations

47.4. Limitations.-

While the principle underlying the section is clear, certain limitations of the scope of the section should also be noted. In the first place, this section applies only to the parties to the suit, and not to witnesses1. Witnesses do not, in the scheme of the Act, have the burden of proving or disproving any fact. Secondly, the section does not mean that, in a criminal case, the accused must prove positively that the act alleged by the prosecution was not committed2. He is bound to prove, only that fact which was within his especial knowledge. The commission of an Act by a person is not a fact within his special knowledge within the meaning of the section-though, in certain circumstances, his intention may be a fact within his special knowledge. Thirdly-and this is the most important aspect-the section must be construed in a common sense manner. Bose J., in Shambhu Nath's case3, observed:

"This is a section which must be considered in a common sense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the case with which the accused could prove them, are all matters that must be taken in consideration. The section cannot be used to undermine the well established rule of law that save in a very exceptional class of cases, the burden is on the prosecution and never shifts."

1. Vlanabir Singh v. Rohini, AIR 1933 PC 87 (91).

2. Attygalle v. R., (1936) 1 All ER 116, infra.

3. Shambhu Nath v. State of Ajmer, AIR 1956 SC 404 (408), para. 13.14 (Bose and Chandrasekhar Ayyar, JJ.).

47.5. In that case, the accused was charged with claiming T.A. without having actually travelled in the class concerned. Bose J. observed:

"Now what is the position here? These journeys were performed on.-9-1948 and 15-9-1948. The prosecution was launched on 19-4-1950 and the appellant was called upon to answer the charge on.-3-1951; and now that the case has been remanded we are in the year 1956. The appellant, very naturally said on 27-4-1951, two and half years after the alleged offences:

"It is humanly impossible to give accurate explanation for the journeys in question after such a lapse of time."

47.6. The prosecution gave evidence that no tickets had been issued on that date from the station concerned for the class concerned, but the Court pointed out that the tickets may have been purchased on the train. Lapse of time was material in this case.

47.7. Case from Ceylon.-

In applying the section, the crucial word "especially" should not be lost sight of. In two appeals before the Privy Council1-2, involving a corresponding provision of the Ceylon Evidence Ordinance and the Singapore Evidence Ordinance respectively, the operation of this principle in relation to the proof of guilt is considered at length.

1. Attygalle v. R., (1936) 2 All ER 116, infra.

2. Stephen Seniviratne v. R., AIR 1938 PC 289.

47.8. The Ceylon Evidence Ordinance (No. 14 of 1895), section 106 enacts that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Attygalle v. R., (1936) 2 All ER 116 (PC) (Viscount Hailsham, LC., Lord Maugham, Sir Sidney Rowlatt)., the accused were charged in respect of an illegal operation performed upon a woman while she was under chloroform. The defence was that no operation took place, but merely an examination. The judge directed the jury that the facts being specially within the knowledge of the accused, the burden of proving the absence of any operation was upon them.

It was held-

(i) the direction was an incorrect statement of law, and the onus of proving that there was a criminal operation was upon the prosecution;

(ii) but, in view of the other evidence in the case, there was no such substantial injustice as is necessary to justify the granting of special leave to appeal in a criminal matter.

47.9. Case from Singapore.-

A case from Singapore1 is also of interest. By section 107 of the Singapore Evidence Ordinance: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." The appellant was charged with, and convicted of attempting to cheat a man and thereby attempting dishonestly to obtain money from him by representing to him that she was able to induce the magistrate before whom the man was to be charged with a criminal offence to show favour to him. The trial judge held that whether or not the appellant could induce the magistrate to show favour to the accused man was a fact which was especially within the knowledge of the appellant, and that under section 107 of the Evidence Ordinance, the onus was on her to prove that she could induce the magistrate to show favour.

1. Mary Ng v. Queen, 1958 AC 173 (PC).

47.10. It was held that by reason of section 107 no burden was placed on the appellant to prove that there had been no deceit.1 The burden was on the prosecution to prove affirmatively that there had been deceit. It should have been made to appear sufficiently on established facts that the appellant had no reason to believe that she could have influenced the magistrate, and that had not been done. There was, in fact no evidence against the appellant on a principal ingredient of the charge, namely, deceit, and the case therefore come within the range of cases in which the Board would interfere.

1. Emphasis supplied.

III. Effect of Essential Ingredients of the Offence

47.11. Whether prosecution must prove all essential ingredients.-

So much as regards the limitations that should be borne in mind while applying the section. At the same time, judicial observations which go to the length of saying that this section does not absolve the prosecution from proving all essential ingredients of the offence1, should be read with the facts of the case. In some cases where the section applies, the effect would be that an essential ingredient of the offence need not be proved.

1. C. Sathiah v. State of Andhra Pradesh, AIR 1960 AP 153 (155), para. 11.

47.12. For example, in a charge of travelling without ticket-which is the hypothetical case put in illustration (b)-the non-purchase of the ticket is certainly an "essential" ingredient of the conduct charged. Nevertheless, the burden of proving that the accused bad a ticket is on him, for the reason that the fact is "especially" within his knowledge. Again, where the question is whether the death is intentional or accidental and the evidence shows that the accused was present throughout on the scene, and the circumstances suggest some kind of participation by him, he may have to prove his plea that the death was accidental.

47.13. This aspect is illustrated by Sanwal Das v. State of Bihar, AIR 1974 SC 778, where the subject of "burden of proof" under section 106 came up before the Supreme Court. The accused was prosecuted, along with his parents, under section 302, Indian Penal Code, for the murder of his wife. There was evidence that the accused along with others was in the room when the death of the wife occurred, and there was also strong evidence of ill-feeling between the accused and his wife. The accused took the defence that his wife met her death because her Nylon saree had accidentally caught fire from a kerosine stove.

The Supreme Court held that the burden of proving this plea was on the accused, by virtue of sections 103 and 106. It is a different matter that the quantum of evidence by which the accused may succeed in discharging his burden of creating a reasonable belief-proving that circumstances absolving him from criminal liability may have existed-is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. In this case, this particular plea of the accused was rejected by the Court, in view of other evidence. The Court held that the case was of murder. However, there was no evidence of participation of the accused in the murder and the extent of that participation. Hence, only a conviction under section 201, I.P.C. (concealing evidence of offence) was ordered, and the conviction under section 302/34, I.P.C. was reversed.

Indian Evidence Act, 1872 Back

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