Failure of the accused to prove his innocence relevant for conviction.

I entirely agree with the observations of my learned brother enunciating pellucidly, if I may respectfully say so, the scope of section 106 of the Indian Evidence Act and its due place in criminal trials. On account of the importance of the topic, I would like to add the following:

This section should be applied with care and caution in criminal cases. But it cannot be said that it has no application to criminal cases: B. N. Chatterji v. Dinesh Chandra Guba1. See Woodroffe and Ameer Ali’s Law of Evidence in India, Tenth Edition, by Malik, C.J., (1958), Volume II, page 1260 — Applicability to Criminal Cases.

The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in section 106 of the Evidence Act. This section is on the other hand to be taken along with the provisions of that general rule: Lachman Singh v. The King2, Shambunath v. State of Ajmer3, Shewaram Jethanand v. Emperor4. In the language of Professor Glanville Williams, this persuasive burden of proof (as opposed to the evidential burden envisaged in section 106) namely, the burden of proving all issues remains with the State: Professor Glanville Williams, The Proof of Guilt, (Hamlyn Lectures, seventh series) page 128 and following).

Section 106 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. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specially 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. In re Kanakasabai Pillal5; Hada v The State1, Emperor v. Muzaffar Hussain2, Ram Bharosey v. Emperor3, Sahendra Singh v. Emperor4, State of Bihar v. Amir Hussan5, and see also the cases cited therein.

Section 106 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 gives an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not prove the truth of the explanation: R. v. Schama6. 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. In the language of Professor Glanville Williams:

"All that the shifting of the evidential burden does at the final stage of the case is to allow the Jury (Court) to take into account the silence of the accused or the absence of satisfactory explanation appearing from his evidence — Page 129."

To recapitulate the foregoing: 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 shifts 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 pro