NAINA MOHAMED Vs. STATE

JUDGEMENT

(1.) 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.

(2.) 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. Diesh Chandra A. I. R. 1948 Cal 58 : 48 Cri. LJ 999. See Woodroffe and Ameer All's Law of Evidence, in India, 10th Edn. by Malik, C. J. 1958 Vol. II p. 1260 Applicability to Criminal cases.

(3.) THE ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove 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. King A. I. R. 1949 Cal 235. Shambhunath v. State of Ajmer (S) , Shewaram Jethanand v. Emperor A. I. R. 199 Sind 209 : 41 Cri, LJ 28. In tile 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 Glanvihe-Williams. the Proof of Guilt, (Hamlyn Lectures, 7th series) page 128 and following ).