Prosecution Must Establish Facts Indicating 'Special Knowledge' To Shift Burden Of Proof On Accused U/S 106 Evidence Act: Kerala High Court

The Division Bench comprising Justice P B Suresh Kumar and Justice M B Snehalatha found that all other persons residing in the house who were present at the time of the alleged incident had stated that the victim suffered injuries from a fall. Thus, it said there is no reverse burden on the father under Section 106 Evidence Act to explain the circumstances of the daughter's death.

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. It is to be noted that 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.

The Court stated that the Sessions Court found that the petitioner was duty-bound to explain the homicidal death of his daughter that took place in the house. It stated that the Sessions Court held that non-explanation of the incident caused a strong circumstance against the accused that he is responsible for commission of the crime.

However, the High Court held that Section 106 of the Evidence Act has no application in the facts of the case since all the witnesses took a consistent stand that death occurred due to the fall of the victim from an elevated place in the house. “In such a situation, the burden to prove the occurrence will not be shifted to the accused in terms of Section 106 of the Indian Evidence Act,” concluded the Court.

The allegation was that the petitioner, who was the father of a 7-year-old physically challenged girl, held the victim upside down by her legs and hit her face on the floor with force thereby causing head injuries. The victim succumbed to injuries on her way to hospital.

The incident allegedly took place on January 14, 2010 and complaint was filed by the brother-in-law of the accused alleging that he caused her death out of anger.

The Counsel for the petitioner argued that the Sessions Court convicted only on the basis of medical evidence and by applying Section 106 of the Evidence Act even though all the witnesses turned hostile. It was argued that there was no substantive evidence to prove the occurrence and the petitioner must have been acquitted.

The Court stated that there was no dispute that the victim suffered serious head injuries on January 14, 2010 which led to her death.

The Court referred to the statement of the doctor who conducted autopsy of the victim to state that the death was caused by 'blunt violence' to head, which means the injury was caused by some other person. Thus, the Court on analyzing the medical evidence stated that the prosecution was able to prove that the death of the victim was caused by homicide.

The Court found that the brother-in-law of the petitioner who was the complainant turned hostile and submitted that the death of the victim occurred due to a fall. The Court found that all other persons residing in the house who were present at the time of the alleged incident had stated that the victim suffered injuries from a fall. The Court stated that there was no evidence to prove the occurrence since the witnesses turned hostile.

As such, the conviction and sentence were set aside and the petitioner was acquitted.

Counsel for Petitioner: Senior Advocate P Vijaya Bhanu, Advocates Mitha Sudhindran, M.Revikrishnan

Counsel for Respondents: Special Public Prosecutor Ambika Devi S

Citation: 2024 LiveLaw Ker 309

Case Title: Abu @Abdulla v State of Kerala

Case Number: CRL.A NO. 83 OF 2017

Click here to read/download Judgment