Section 106 Evidence Act Can't Be Applied Until Prosecution Establishes A Prima Facie Case : Supreme Court

In a notable judgment, the Supreme Court has elucidated the principles relating to the application of Section 106 of the Indian Evidence Act, 1872.

Section 106 of the Evidence Act is an exception to the general rule( Section 101 of the Evidence Act) that the burden of proof is on the person who is asserting the existence of a fact. As per Section 106 of the Evidence Act, if any fact is within the special knowledge of a person, the burden of proving that fact is on him.

While deciding a criminal appeal, the bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra expounded the principles relating to Section 106.

The appeal was filed by a man who was found guilty of the murder of his wife and was sentenced to life imprisonment. Since the offence was committed during the wee hours within the house of the convict where there was no one else except the deceased wife and their five-year-old daughter, the prosecution invoked Section 106 of the Evidence Act asking the accused to explain the incident.

While deciding the appeal, the judgment authored by Justice Pardiwala discussed the ambit of Section 106.

Court should apply Section 106 with care and caution

The Court stated that Section 106 is not intended to relieve the prosecution of their duty to prove the case beyond reasonable doubt. 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 the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”.

"The court should apply Section 106 of the Evidence Act in criminal cases with care and caution...Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence," the judgment stated.

Section 106 cannot be applied until a prima facie case is established by the prosecution

The Court stated that Section 106 does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed.

"To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused."

"Section 106 of the Evidence Act obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge, which would render the evidence of the prosecution nugatory. If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation. But, if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him."

The judgment explained it further as follows :

"What lies at the bottom of the various rules shifting the evidential burden or burden of introducing evidence in proof of one's case as opposed to the persuasive burden or burden of proof, i.e., of proving all the issues remaining with the prosecution and which never shift is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand and it is, therefore, for the accused to give evidence on them if he wishes to escape. Positive facts must always be proved by the prosecution. But the same rule cannot always apply to negative facts. It is not for the prosecution to anticipate and eliminate all possible defences or circumstances which may exonerate an accused. Again, when a person does not act with some intention 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. If the accused had a different intention that is a fact especially within his knowledge and which he must prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7, page 127 and following) and the interesting discussion—para 527 negative averments and para 528 — “require affirmative counter-evidence” at page 438 and foil, of Kenny's outlines of Criminal Law, 17th Edn. 1958)"

Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused, the Court stated.

If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at a time and in the circumstances of his choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book, the Court stated.

As regards the merits of the present appeal, the Court stated that the prosecution has proved the foundational facts for applying Section 106, such as :

a) The offence took place inside the four walls of the house in which the appellant, deceased and their 5-year-old daughter were living. The incident occurred in the early morning hours between 3.30 am and 4.00 am

b) When the Investigating Officer reached the house of the appellant, he found the deceased lying in a pool of blood. The appellant was also present at his house.

c) The defence put forward by the appellant that two unidentified persons entered the house and inflicted injuries on the deceased and also on his body is found to be false.

d) The clothes worn by the appellant at the time of the incident were collected by the Investigating Officer. The clothes had blood stains. According to the Forensic Science Laboratory report, the blood stains on the clothes of the appellant matched with the blood group of the deceased i.e., AB+

e) The conduct of the appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain is a relevant fact under Section 8 of the Evidence Act. In other words, the evidence of the circumstance simpliciter that the appellant pointed out to the Investigating Officer the place where he threw away the weapon of offence i.e., knife would be admissible as 'conduct' under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.

The appeal was dismissed.

Also read - Principles Of Applying Section 106 Of Evidence Act : Supreme Court Explains

Case Title : Anees v. The State Govt of NCT

Citation : 2024 LiveLaw (SC) 344

Click here to read the judgment