It would now be necessary to consider provisions of Section 106
of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872,
when any fact is especially within the knowledge of any person, then the
burden of proving that fact is upon the said person. It is well settled that
Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the
burden of proving its case beyond all reasonable doubt. It is only when the
prosecution case has been proved that the burden with regard to such facts
which are within the special knowledge of the accused could be shifted on
the accused for explaining the same. Reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in Vikramjit Singh Vs. State of
Punjab 2006 (12) SCC 306.
In Sharad Kondiba Walke (supra), the Division Bench while
considering aforesaid provisions held that if the initial presence of the
accused has not been established by the prosecution, the question of invoking
the provisions of Section 106 of the Evidence Act, 1872 would not arise. It is
only after initial burden of establishing the presence of the accused at the site
of the crime is discharged that the provisions of Section 106 of the Evidence
Act, 1872 could be applied. Similar view has been taken by the Division
Bench in Subhash Gorakh Khankal (supra).
Thus, from the aforesaid, once it is found that the prosecution has
failed to show the presence of the appellant at some time proximate to the
occurrence of the crime, the provisions of Section 106 of the Evidence Act,
1872 cannot be applied. Moreover, the present case being based on
circumstantial evidence, each circumstance leading to the guilt of the
appellant is required to be proved independently and beyond reasonable
doubt. The presence of the appellant near the scene of the incident having
not been satisfactorily proved and the same being one of the major links in
the chain of circumstances, it will have to be held that the prosecution has
failed in proving the guilt of the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.592 OF 2013
Sunil s/o Latari Khuje vs State of Maharashtra,
CORAM : B. R. GAVAI &
A.S.CHANDURKAR JJ.
DATE : MARCH 28, 2016
Citation:2016 ALLMR(CRI)2212
Print Page
of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872,
when any fact is especially within the knowledge of any person, then the
burden of proving that fact is upon the said person. It is well settled that
Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the
burden of proving its case beyond all reasonable doubt. It is only when the
prosecution case has been proved that the burden with regard to such facts
which are within the special knowledge of the accused could be shifted on
the accused for explaining the same. Reference in this regard can be made to
the judgment of the Hon'ble Supreme Court in Vikramjit Singh Vs. State of
Punjab 2006 (12) SCC 306.
In Sharad Kondiba Walke (supra), the Division Bench while
considering aforesaid provisions held that if the initial presence of the
accused has not been established by the prosecution, the question of invoking
the provisions of Section 106 of the Evidence Act, 1872 would not arise. It is
only after initial burden of establishing the presence of the accused at the site
of the crime is discharged that the provisions of Section 106 of the Evidence
Act, 1872 could be applied. Similar view has been taken by the Division
Bench in Subhash Gorakh Khankal (supra).
Thus, from the aforesaid, once it is found that the prosecution has
failed to show the presence of the appellant at some time proximate to the
occurrence of the crime, the provisions of Section 106 of the Evidence Act,
1872 cannot be applied. Moreover, the present case being based on
circumstantial evidence, each circumstance leading to the guilt of the
appellant is required to be proved independently and beyond reasonable
doubt. The presence of the appellant near the scene of the incident having
not been satisfactorily proved and the same being one of the major links in
the chain of circumstances, it will have to be held that the prosecution has
failed in proving the guilt of the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.592 OF 2013
Sunil s/o Latari Khuje vs State of Maharashtra,
CORAM : B. R. GAVAI &
A.S.CHANDURKAR JJ.
DATE : MARCH 28, 2016
Citation:2016 ALLMR(CRI)2212
