12 March 1956
Supreme Court


Case number: Appeal (crl.) 65 of 1954






DATE OF JUDGMENT: 12/03/1956


CITATION:  1956 AIR  404            1956 SCR  199

ACT: Burden  of Proof-Proof of facts within  especial  knowledge- Facts  equally within the knowledge of the  prosecution  and the  accused,  if "especially within the knowledge"  of  the accused-Illustration,  Scope  of-Indian Evidence Act  (I  of 1872), s. 106, Illustration (b).

HEADNOTE: The  appellant  was  put up for trial under s.  420  of  the Indian  Penal  Code  and  s.  5(2)  of  the  Prevention   of Corruption Act of 1947 for obtaining a total sum of Rs.  23- 12-0 from the Government as T.A., being second class railway fares  for two journeys, one from Ajmer to Abu Road and  the other  from Ajmer to Reengus, without having  actually  paid the  said  fares.  The prosecution proved from  the  railway books  and registers that no such second class tickets  were issued  at Ajmer on the relevant dates and the same  witness who  proved  this also proved that tickets were  not  always issued  and the passengers could pay the fare in  the  train and if the second class was fully booked, no further tickets were issued till the train arrived,in which case  passengers sometimes  bought  third class or  inter-class  tickets  and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the  train.  There was no proof that one or other -of  those courses   were  not  followed  by  the  appellant  and   the prosecution  instead  of  proving the absence  of  any  such payments, in the same way as it had proved the non-issue  of second  class tickets, relied on Illustration (b) to s.  106 of  the  Evidence  Act and contended that  it  was  for  the appellant  to  prove that he had actually  paid  the  second class fares. 200 Held,  that Illustration (b) to s. 106 of the  Evidence  Act had no application, the evidence adduced by the  prosecution did not warrant a conviction and the accused should,  having regard to the long lapse of time, be acquitted. That s. 106 of the Evidence Act does not abrogate the  well- established  rule  of  criminal  law  that  except  in  very exceptional  classes  of cases the burden that lies  on  the prosecution to prove its case never shifts and s, 106 is not intended to relieve the prosecution of that burden.’ On  the



contrary,  it seeks to meet certain exceptional cases  where it  is impossible, or disproportionately difficult, for  the prosecution  to establish facts which are especially  within the knowledge of the accused and which can be proved by  him without difficulty or inconvenience.  But when knowledge  of such  facts  is equally available to the prosecution  if  it chooses to exercise due diligence, they cannot be said to be especially  within  the  knowledge of the  accused  and  the section cannot apply. Attygalle v. Emperor, (A.I.R. 1936 P.C. 169) and Seneviratne v.B., ([1936] 3 All E.R. 36), referred to. That  illustrations  to a section do not  exhaust  its  full content even as they cannot curtail or expand its ambit, and in   applying  s.  106  the  balance  of  convenience,   the comparative  labour involved in finding out and proving  the facts  and  the ease with which the accused can  prove  them must be taken into consideration. That  cases  coming  under ss. 112 and  113  of  the  Indian Railways  Act  to  which Illustration (b)  to  -s.  106  has obvious application stand on a different footing.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 65 of 1954. Appeal  by special leave from the judgment and  order  dated the 2nd January 1953 of the Judicial Commissioner’s Court at Ajmer  in Criminal Appeal No. 3 of 1952 arising out  of  the judgment and order dated the 4th January, 1952 of the  Court of  Sessions  Judge at Ajmer in Criminal Appeal No.  300  of 1951. B.P. Berry and B. P. Maheshwari, for the appellant. C.   K. Daphtar Solicitor-General of India (Porus A.   Mehta and P. G. Gokhale, with him) for the respondent. 1956.  March 12.  The Judgment of the Court was delivered by BOSE J.-The appellant, S.N. Mehra, a Camp Clerk 201 Ajmer,  has been convicted of offences under section 420  of the Indian Penal Code and section 5(2) of the Prevention  of Corruption Act, 1947 (Act II of 1947).  He was sentenced  to two  years’ rigorous imprisonment and a fine of Rs.  100  on each count.  The substantive sentences are concurrent.   The  substance of the offences for which he was  convicted lay in obtaining sums to talling Rs. 23-12-0 from Government as T.A. for two journeys, one from Ajmer to Abu Road and the other  from  Ajmer  to Reengus.  The  money  represents  the second   class  railway  fare  for  these   journeys.    The allegation  against him is that either he did not travel  at all  between those places on the relevant dates, or,  if  he did, that he did not pay the fare.   He  appealed  to  the  Sessions Judge  at  Ajmer  and  was acquitted.  The State filed an appeal against the  acquittal to the Judicial Commissioner of Ajmer’ The learned  Judicial Commissioner  accepted the appeal and remanded the case  for retrial before a Special Judge because, by reason of certain amendments  in  the law, only a Special Judge could  try  an offence  under section 5(2) of the Prevention of  Corruption Act at the date of the remand.   The  appeal here raises certain questions  about  sanction which  we do not intend to discuss because, in our  opinion, the  evidence  adduced  does not justify  a  retrial  as  no conviction for those two offences could be based on it. It  was first alleged that the appellant did not  travel  at all  on  the relevant dates and that the burden  of  proving



that he did was on him.   We  do  not  think this issue arises  because  the  charge assumes  that he did travel and there is no evidence  before us to justify even a prima facie inference that he did  not. The charge runs-  "That you, on or about etc  ... cheated the Government   by dishonestly inducing the Government to pay you Rs. 62-9-0 on account  of  T.A. for the journeys performed on  the  above- mentioned days.........  " 202 There is no suggestion that the journeys were not  performed and  only purported to be; and it would be unfair to  permit the  State to go back on what it said in the charge at  this stage,  especially  after the appellant has entered  on  his defence  and virtually admitted that he did travel on  those dates;  in  any case, he has not denied the  fact  and  that would   naturally  operate  to  his  disadvantage   if   the prosecution  were  to be allowed to change its  position  in this  way.   We must therefore accept the fact that  he  did travel  as  alleged  on the relevant  dates,  and  the  only question  that remains is whether he paid the  second  class fares which he later claimed, and obtained, from  Government as T.A. for those journeys.   The  only  proof  that  is  adduced  in  support  of   the allegation  that he did not is that no second class  tickets were  issued at Ajmer on the relevant dates either  for  Abu Road  or for Reengus.  This is proved by the  Booking  Clerk Ram Dayal, P.W. 4. But the same witness proves that  tickets are  not always issued and that passengers can pay the  fare on  the train; also, if the second class is fully booked  no further  tickets are issued till the arrival of  the  train. In  that case, passengers sometimes buy a third class or  an inter-class  ticket  and  then pay  the  difference  to  the conductor  or  guard of the train if they are able  to  find second class accommodation when the train arrives.  There is no proof that one or other of these courses was not followed on  the  dates  with which we are  concerned.   The  railway registers  and  books  would show whether or  not  any  such payments  were made on those dates and the State could  have proved the absence of such payments as easily as it was able to  prove,  from the same sort of material, that  no  second class tickets were issued.  Instead of doing that, the State contented  itself with saying that no second  class  tickets were issued and, then relying on Illustration (b) to section 106  of  the Evidence Act, it contended that the  burden  of proving that the accused did pay the second class fares  was on him. Illustration (b) runs thus: "A is charged with travelling on  a railway with-        203        out a ticket.  The burden of proving that he had a ticket is        on him".        But this is only an illustration and must be read subject to        the section itself and cannot travel beyond it. The  section        runs-        "When  any  fact is especially within the knowledge  of  any        person, the burden of proving that fact is on him".        The stress, in our opinion, is on the word "especially".        Section  106  is an exception to section 101.   Section  101        lays down the general rule about the burden of proof.        "Whoever desires any Court to give judgment as to any  legal        right or liability dependent on the existence of facts which        he asserts, must prove that those facts exist".        Illustration (a) says-        "A desires a Court to give judgment that B shall be punished



      for a crime which A says B has committed.        A must prove that B has committed the crime".        This lays down the general rule that in a criminal case  the        burden  of  proof is on the prosecution and section  106  is        certainly  not intended to relieve it of that duty.  On  the        contrary,  it is designed to meet certain exceptional  cases        in   which   it  would  be  impossible,  or  at   any   rate        disproportionately   difficult,  for  the   prosecution   to        establish facts which are "especially" within the  knowledge        of  the accused and which he could prove without  difficulty        or inconvenience.  The word        "especially"  stresses  that.   It  means  facts  that   are        preeminently or exceptionally within his knowledge.  If  the        section  were to be interpreted otherwise, it would lead  to        the  very  startling conclusion that in a  murder  case  the        burden  lies on the accused to prove that he did not  commit        the murder because who could know better than he whether  he        did or did not.  It is evident that cannot be the  intention        and  the  Privy Council has twice refused to  construe  this        section, as reproduced in certain other Acts outside  India,        to mean that the        204        burden  lies  on an accused person to show that be  did  not        commit  the  crime for which he is tried.  These  cases  are        Attygalle v. Emperor(1) and Seneviratne v.        R.  (2).        Illustration  (b) to section 106 has obvious reference to  a        very special type of case, namely to offences under sections        112  and  113 of the Indian Railways Act for  travelling  or        attempting  to  travel without a pass or ticket or  with  an        insufficient  pass,  etc.  Now if a passenger is seen  in  a        railway carriage, or at the ticket barrier, and is unable to        produce a ticket or explain his presence, it would obviously        be  impossible  in most cases for the railway to  prove,  or        even with due diligence to find out, where he came from  and        where he is going and whether or not be purchased a  ticket.        On the other band, it would be comparatively simple for  the        passenger  either to produce his pass or ticket or,  in  the        case  of loss or of some other valid explanation, to set  it        out;  and so far as proof is concerned, it would  be  easier        for  him to prove the substance of his explanation than  for        the State to establish its falsity.        We recognise that an illustration does not exhaust the  full        content  of the section which it illustrates but equally  it        can  neither curtail nor expand its ambit; and if  knowledge        of  certain facts is as much available to  the  prosecution,        should  it  choose  to exercise due  diligence,  as  to  the        accused, the facts cannot be said to be "especially"  within        the knowledge of the accused.  This is a section which  must        be  considered  in  a commonsense way; and  the  balance  of        convenience  and the disproportion of the labour that  would        be  involved  in  finding  out  and  proving  certain  facts        balanced  against the triviality of the issue at  stake  and        the  ease with which the accused could prove them,  are  all        matters that must be taken into consideration.  The  section        cannot be used to undermine the well established rule of law        that,  save in a very exceptional class of case, the  burden        is on the prosecution and never shifts.        Now what is the position here?  These journeys        (1) A.I.R. 1936 P.C. 169.        (2) [1936] 3 All E.R. 36, 49.        205        were  performed on 8-9-1948 and 15-9-1948.  The  prosecution        was launched on 19-4-1950 and the appellant was called  upon        to answer the charge on 9-3-1951; and now that the case  has



      been remanded we are in the year 1956.  The appellant,  very        naturally, said on 27-4-1951, two and a half years after the        alleged offences:        "It is humanly impossible to give accurate explanations  for        the journeys in question after such a lapse of time".        And what of the prosecution?  They have their registers  and        books,  both of the railway and of the department  in  which        the  appellant  works.  They are in a position to  know  and        prove  his official movements on the relevant  dates.   They        are in a position to show that no vouchers or receipts  were        issued for a second class journey by the guard or  conductor        of  the trains on those days.  This information was as  much        within  their  "especial"  knowledge  as  in  that  of   the        appellant;  indeed it is difficult to see how with  all  the        relevant  books and other material in the possession of  the        authorities,  these  facts  can be said  to  be  within  the        "especial" knowledge of the appellant after such a lapse  of        time however much it may once have been there.  It would, we        feel,  be wrong to allow these proceedings to  continue  any        longer.   The  appellant has been put upon  his  trial,  the        prosecution has had full and ample opportunity to prove  its        case  and it can certainly not complain of want of  time  to        search  for and prepare its material.  No  conviction  could        validly  rest on the material so far produced and  it  would        savour  of  harassment to allow the continuance  of  such  a        trial  without  the  slightest  indication  that  there   is        additional  evidence  available which could  not  have  been        discovered  and produced with the exercise of  diligence  at        the earlier stages.        We  set  aside the order of the  Judicial  Commissioner  and        restore  the  order  of the Sessions  Judge  acquitting  the        appellant on both counts of the charge framed against him.        27        206