~Sumedha Ray


Section 106 of The Indian Evidence Act, 1872 (herein 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 prosecution has proved the prima facie case against the accused. Hence it is clear that the section is an exception to 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. Thus, herein these various issues will be taken into consideration and the sub-consequential issues that may arise. The sections are elaborately stated as follows-

Section 106 of The Indian Evidence Act states that if the burden of proving fact is especially within the knowledge of any person, the burden of proving that fact will henceforth lie on him. 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.

Section 101 of The Indian Evidence Act states that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

In Baban Girju v. Namdeo Girju Bangar [1], reasonable proof of ownership in absence of any reasonable proof that defendant was the actual owner of the property, and plaintiff was only a name given does not prove that respondent was owner and plaint maker was only a name given to the property.

In Rama Kanta Jain v. M.S. Jain[2], what has to be proved by prosecution, it is a well-settled principle that the prosecution can succeed by substantially proving the incident it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own make out a new case for the prosecution and convict the accused on that basis. Taking the advantage of the defence is not a point of consideration to end the case by taking it in his own favour.

Thus 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. 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.

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.

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 hidden force to make the accused to go into the witness box and give evidence.

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 2 judge bench of Gujarat High Court in State vs. Dhulaji Bavaji[3] 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 Kaidalwar[4] does not have to prove his innocence beyond all reasonable doubt but just bring out a preponderance of probability in the prosecution’s case.[5]

In Shanbhu Nath Mehravs State of Ajmer[6] 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. The word “especially” stresses that it means facts that are preeminently 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 because who could know better than he whether he did or did not. It is evident that that cannot be the intention and The Pricy Council has twice refused to construe this section as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried.

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.


[1]AIR 1999 Bom 46.

[2]AIR 1999 Del 281.

[3] AIR 1963 Guj 234.

[4] AIR 1981 SC 1186.

[5]Bimla Devi vs  Himachal Road Transport Corporation and Ors. 2009(5) 706.

[6] AIR 1956 SC 404.


About the Author: Sumedha is a 2015-20 Batch student at Symbiosis Law School, Pune.


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