The burden of proof lies on the prosecution in criminal cases, and the accused is not duty-bound to prove their innocence.

1. The petitioners have been convicted under R.8 of the Rules framed under S.112(2)(xxvi) of the Madras Village Panchayats Act, X of 1950, for having contravened R.S. The charge against them was that they cremated a dead body in R.S. 555/13 of Cherukunnu amsom which is a place within a distance of 100 yards, from dwelling houses and wells.

2. The fact that the dead body has in fact been cremated by the accused is amply proved and is not seriously disputed.

R. 5 says:

"No person shall bury, burn or otherwise dispose of, or cause or suffer to be buried, burnt or otherwise disposed of, any corpse in any place within a hundred yards of a dwelling place or source of drinking water supply other than a place provided, registered or licensed as aforesaid."

So the prosecution has to prove that the site where cremation took place is not a place provided, registered or licensed and that it is within a hundred yards of dwelling house or source of drinking water supply. That it is within 100 yards of dwelling houses or source of water supply is proved and is not disputed. The only question that remains is whether it is not in a place 'provided, registered or licensed.' There is no case that it is a burial place provided under R.1 or that it is a place licensed.

3. The evidence is that it is an ancient burial ground. R.2(1) says:

"Every owner or person having the control of any place used as a place for burying, burning or otherwise disposing of the dead shall, if such place be not already registered under the Madras Village Panchayats Act, 1950 or under the Madras District Boards Act, 1920, apply to the Panchayat to have such place registered."

R.4 enjoins on the Panchayat to keep a register in which places provided, registered or licensed under R.1 to 3 are to be entered. Neither Pw.1, the Executive Authority nor Pw. 2 the Health Inspector, has given evidence that this ancient burial ground is not registered. Nor have they produced the register maintained in the Panchayat to show that this burial ground is not seen included in the register. The learned Magistrate proceeded on the basis that the burden of proving that this ground is not a registered one is not on the prosecution and it was for the accused to prove that it is a registered burial ground. The learned District Magistrate stated:

"The words, 'other than a place provided, registered or licensed as aforesaid' are introduced in the rule by way of exception and it is for the accused to prove that the burning or burial does not come within the prohibition."

This view of the learned Magistrate does not appear to be correct.

4. Probably the learned Magistrate had in view S.106 of the Evidence Act. S.106 says:

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The ordinary rule that applies to criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by this rule of evidence. The section cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of

guilt unless the same is rebutted and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused, that S.106 can be applied and its effect considered while weighing the evidence.

5. This question whether S.105 would apply in cases of this nature came up for consideration in Shambu Nath Mehra v. The State of Ajmer (AIR. 1956 SC. 404). That was a case where a public servant was prosecuted for having cheated the Government by claiming second class fare while in fact he did not travel in that class. The only evidence that was adduced by the prosecution was the evidence that no second class ticket was issued at Ajmer on the relevant date. This was proved by Pw. 4, the booking clerk, bu