S.106 Evidence Act | Burden Of Proof Can't Be Shifted On Accused When Multiple Witnesses To Crime Present: Gauhati High Court

The Gauhati High Court recently set aside a murder conviction stating that accused has a right to remain silent and the burden of proof cannot be shifted upon the accused by applying Section 106 of the Indian Evidence Act, 1872 when multiple witnesses to the crime were present.Section 106 stipulates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.The division judge bench comprising Justice Kalyan Rai Surana and Justice Mridul Kumar Kalita observed:“When the offence of murder was allegedly committed in daylight in the presence of witnesses, by applying the provisions of section 106 of the Evidence Act, 1872, the burden of proof cannot be put upon the appellant to disprove the allegations and explain the circumstances relating to death of the deceased. Thus, the judgment of the learned Trial Court is found to be perverse.”The case of the prosecution was that on April 25, 2013, the complainant had lodged an ejahar with the In-Charge of Bargang Outpost under Behali P.S. to the effect that on April 24, 2013, at about 5.00 PM, the accused-appellant had killed her 26 year old son by hacking him with a dao over the a catapult and she had prayed to take necessary action against the appellant. A case was registered under Section 302 of IPC against the accused. The Trial Court vide judgment and order of sentence dated December 17, 2018 convicted the accused and sentenced him to imprisonment for life and to pay a fine of Rs.2,000/-.The accused-appellant assailed the said judgment and sentence order passed by the Trial Court before the High Court. The legal aid Counsel appearing for the accused-appellant submitted that evidence of several prosecution witnesses was discarded by the Trial Court on the basis of being contradictory and hearsay. It was further submitted that the ocular evidence of PW-4 (an eye-witness) was at variance with the medical opinion of injuries that had caused death of the deceased as PW-4 had allegedly seen the appellant hitting the deceased on his back. However, according to the post-mortem report, it was argued that the injuries found on the body of deceased can only be inflicted if the deceased was attacked from the front. It was also highlighted that the evidence of the Medical Officer (PW-6) was not sufficient to prove that the deceased had died because of the assault made by the appellant. It was submitted that the PW-7, Investigating Officer (I.O.) cannot be believed as he had tried to frame the appellant by collecting dao, which is suspected to be the weapon of assault from the place of occurrence and in the same statement, he has also stated that he has seized the sharp dao from the place of occurrence having found it lying near the dead body at the place of occurrence, but in the seizure list, the seizure is said to have been made from the possession of the appellant. It was further submitted that the I.O. had recorded the statement of only interested witnesses to falsely implicate the appellant.It was further highlighted that the bail was granted to the appellant by the High Court, however, on behalf of the appellant bail bond could not be furnished and as such he is still serving his sentence despite being granted bail by this Court. On the other hand, the Additional Public Prosecutor submitted that the evidence of PW-4 cannot be discarded only on the ground that he had seen the appellant assaulting the deceased at the back. It was further submitted that even by striking from behind, cut injuries of the description mentioned in the post-mortem report could be ruled out inflicted. Moreover, it was submitted that as per the post-mortem report, the deceased had a cut injury in the occipital region of the head, which is at the hind side of the head.The Court noted that the evidence of I.O. (PW-7) is contradictory as in his examination-in-chief that he had seized a sharp dao from the place of occurrence, however, in the seizure list, it is mentioned that the weapon described therein was seized from the possession of the appellant.It was further observed by the Court that the place of occurrence was not visible from the house of the complainant, it is highly doubtful that the PW-1 was able to identify the appellant from about 800 metres away from her house.The Court remarked that there are number of lapses on part of the I.O. during investigation, which can be culled out from the fact that in the charge-sheet, it has not been mentioned that any inquest was done over the dead body and moreover, the dao was not sent for forensic and/or serological examination to ascertain if it contained human blood and used as a weapon of assault or to ascertain if it contained any finger print of the appellant.The Court observed:“The prosecution has to prove the commission of offence by the appellant beyond all reasonable doubts. The appellant cannot be convicted on the basis of conjectures and surmises. From the analysis of evidence of the...

S.106 Evidence Act | Burden Of Proof Can't Be Shifted On Accused When Multiple Witnesses To Crime Present: Gauhati High Court

Udit Singh

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