Illustrations: burden lies on him that he purchased


(à) 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.

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



Section 106 lays down the principle that where any fact is especially within the knowledge of any person the burden of proving the fact lies on that person. The fact may be of affirmative or negative character. This section applies only to parties to the suit. For example, when a person is charged with travelling without ticket the burden lies on him that he purchased ticket.

Again, in case a servant charged with misappropriation of goods of his master, if the failure to account was due to an accidental loss, the fact being within the servant knowledge, it is for him to explain the loss. Similarly, where it is proved that the defendant received the money and had not accounted for it, burden lies upon him to prove what had happened of the money.

The principle underlying Section 106, which is an exception to the general rule governing burden of proof, applies only to such matters of defense which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by persons other than the defendant. Under section 9 of the Foreigners Act burden lies on person who claims to be or not to be foreigner.

Facts especially within knowledge:

Section 106 is an exception to general principles laid down in Section 101 of the Evidence Act. There is apparent contradiction between the two sections, because burden of proof lies on the prosecution under section 101, whereas Section 106 burden lies on the accused or adverse party in criminal cases under exceptional cases regulated by I.P.C. or by any special law. If any person claims contrary under section 106 the burden of proving the fact would be upon him since that is within the special knowledge. “The word, ‘especially,’ means facts “that are pre-eminently or exceptionally within the knowledge of the person.” “It would be impossible or at any rate disproportionately difficult for prosecution to establish facts which are especially in the knowledge of the accused and which he could prove without difficulty an inconvenience.” Where a postman was held for misappropriation of money entrusted to him for disbursement under a money order, the postman (accused) admitted he paid the money to a boy instead of the payee at his house.

It was held that the fact as to who the boy was, was specially within the knowledge of the accused and the burden was on him. If facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt.

It would be relevant while considering the totality of the circumstantial evidence. The pistol which was licensed was allegedly used in murder case, the onus would be on accused who gave evasive or incorrect answers and failed to produced the same. An adverse inference can be drawn against him under section 106.

It is submitted that under the Indian law, Section 106 should be more liberally used against the accused. When contraband substances were found in many ingeniously devised places of concealment the accused had the full knowledge that they were prohibited substances.

So the burden was on the accused on account of his special knowledge about the substances. Burden of proof lies upon the employee to show that he was not employed anywhere so long as the disciplinary proceedings remained pending. In election petition the initial burden to prove determination of age of returned candidate lies on the petitioner, however, lies on the respondent to prove facts within his special knowledge.

The burden of proof would not be thrown on the defendant in respect of facts which are within the special knowledge of the plaintiff.

Res Ipsa Loquitur:

The maxim is not a rule of law. It is rule of evidence benefiting the plaintiff by not requiring him to prove negligence. In case of negligence the burden of proving negligence on the part of the defendant lies on the plaintiff. Section 106 is an application of the principle of res ipsa loquitur. Where a pedestrian was electrocuted from a live wire due to negligent management of the Electricity Board it was held that the maxim was applicable as because the Electricity Board failed to take proper management.

In Municipal Corporation of Delhi v Subliagwanti, due to the collapse of the Clock Tower situated opposite the Town Hall in the main Bazar of Chandi Chowk. Delhi, where a number of persons died. The Supreme Court held that the fall of Clock Tower tells its own story in raising an inference of negligence on the part of the defendant. Since the defendant could not prove absence of negligence on their part they are held liable.

Burden of proof: Whether inference under section 106 can be drawn:

It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. Deceased was found dead in her bedroom in matrimonial home. The acquittal of husband was reversed by the High Court. It was held that on appreciation of evidence it cannot be said that it is a case where two views are possible. Evidence of witnesses was duly corroborated by medical evidence which opined death due to compression of neck. The plea of alibi of husband was also found to be false. The conviction recorded by the High Court was upheld.