The Indian Approach1

The Malaysian Evidence Act 1950 is essentially in pari materia with the Indian
evidence act. The wordings used under s 106 of the Indian Evidence Act is as follows:2
When any fact is especially within the knowledge of any person, the burden of proving that is
upon him

The Indian approach to s 106 operates similarly to its Malaysian counterpart. 3 In

Shambunath Mehra v State of Ajmer 4, the Supreme Court of India explained the essential
ingredients to s106 of the Evidence Act i.e. (i) that s 106 should only be raised in cases where
it would be disproportionately difficult for the prosecution to establish facts which are
especially within the knowledge of the accused ; (ii) the accused is capable of proving said
facts with ease.
Further, the Supreme Court in Shambunath also held that where s 101 places the burden of
proof on the Prosecution, s 106 operates as an exception to s 101 of the Indian Evidence. In
the case of Md Hussain v State of Bihar 5, the court held that s106 can only arise when the
court has accepted the facts raised by the Prosecution

under s101, and the burden is

subsequently shifted to the accused to convince the court that he has indeed the required
authority. In Gullegar Setty v State6, the court cautioned that s 106 cannot to invoked in such
a manner that would relieve the Prosecution from its burden to prove its case against the
accused i.e. s106 is not intended to supplement the Prosecutions case in situations when the
Prosecution is incapable of producing evidence to prove the guilt of the Accused.
1 Discussions are based on the Indian Evidence Act 1872.
2 Indian Evidence Act 1872
3 See Gurbakish Singh v Gurdial Singh (1927) 29 Bom LR 1392 PC
4 (1956) AIR 404 SC
5 [1987] CrLJ 1391 (Pat)
6 [1953] AIR Mys 31

It is thus submitted that s 106 operates against the general rule that an accused is innocent
until proven guilty. While s 101 places the burden on the prosecution s 106 basically implies
that the prosecution has managed to prove the guilt of the accused, and it is now up to the
accused to defend himself.

Doctrine of Peculiar Knowledge

The doctrine of peculiar knowledge is essentially a set of principles which places the
burden on the accused to prove his innocence once the Prosecution has successfully
established a prima facie case against him.7 It is a principle in which s 106 is rooted.
At this juncture, it is pertinent to refer to Bayley J in the English case of R v Turner8 where
His Lorship held:
I have always understood it to be a general rule, that if negative averment
be made by one party, which is peculiarly within the knowledge of the other, the party
within whose knowledge it lies, and who asserts the affirmative is to prove it, and not
he who avers the negative
In Turners case, the D was convicted for possessing 16 pheasants and 5 hares despite
being unqualified i.e. unlicensed to kill game. It was argued that justices had not recorded any
evidence that the D lacked the necessary qualifications and that the conviction should
therefore be quashed.
Unfortunately, the wordings of s 106 failed to properly illustrate the principle which
the English Courts attempted to highlight in R v Turner. The sentence When any fact is
especially within the knowledge of any person does not adequately address the on whose
side the burden shall lie. It also opens the possibility of the Prosecution to attempt to dispose
of its duty under s101 for the accused to bear.

7 A Stumer, The Presumption of Innocence: Evidential and Human Rights

Perspectives (Bloomsbury Publishing 2010) 172
8 (1816) 5 M & S 206

In Razik Ram v J.S Chouhan9, the Indian Courts attempted to contain s 106 to which
the section cease to be functional if the supposedly knowledge peculiar to the accused is
capable of being known to parties other than the accused. 10 This does not remove the fact that
s 106 may be open to arbitrary applications, whose ramifications extends to its Malaysian
counterpart11
The aftermath from s 106 on the doctrine of presumption of innocence is this: it puts the
accused in a position where he is to bear the burden to prove his defence. If he chooses to be
silent once the Prosecution manages to prove the ingredients to the offence alleged against
the accused, and if the accused fails to rebut, it will entitle the court to convict. 12 S 106
ultimately compels an accused to defend he consequently encroaching upon the fundamental
right of an accused to remain silent13
One such mechanism is apparent in the defence of alibi being a positive averment by the
accused, thus it is the accused who bears the burden to prove that the existence of such alibi
pursuant to s106. The approach undertaken by the Indian Courts is that a defence of alibi,
being a positive averment raised by an accused, does not discharge the Prosecution from it
burden under s101 of proving a case beyond reasonable doubt.14 In Ramachandran v State of
Kerala15 the burden of proving is once again place on the accused to substantiate his defence
of an alibi failing which would result in a criminal conviction against the accused.
It is thus submitted that the approach towards s 106 should not be overly simplistic as the
underlying principles embodies more that offences involving the lack of authority, consent or
9 (1975) AIR 667 SC
10 See Mohd Rizal bin Mat Yusuf v PP [2009]8 MLJ 856
11 See Mary Ng v R [1958] AC 173;
12 See Re Tan Kheng Cheng [1962] 1 MLJ 310
13 Amer Hamzah Arshad, The Malaysian Bar, Rights of Accused persons
14 Gurcharan Singh v State of Punjab (1956) AIR 460 SC
15 [2005] CrLJ 1843

interest in the course of carrying out an action. 16 The Indian school of thought suggests that
the principle extends also to the invoking of defences in addition to proving the state of mind
i.e mens rea of the accused in order to deflect the allegations from the Prosecution as can be
seen in Arundhati Keutani v State of Orissa17.
S106, at least in the Indian context, puts the accused in a situation where he has no choice
but to be compelled to defend his case e.g, if the prosecution alleges that he has been
travelling without the required authorisation, the accused must disprove otherwise or his
silence may amount to a penal liability as was iterated in the case of Seneviratne v R.18
The pertinent lesson which from the India courts is this: that s106 is invoked when an
accused is asked to enter into his defence upon prima facie case having been established
against the accused, and that from the point which s 106 is invoked, the accused is already
presumed guilty, ultimately contradicting the general presumption of innocence of an accused
person.

16 See Mohd Usman v State of Bihar 1968 AIR 1273 SC; Hoo Chee Keong v PP
[1997] 2 CLJ Supp 357;
17 [1968] CrLJ 848
18 (1936) PC 289

Bibliography:
Statutes
1. Indian Evidence Act 1872
2. Evidence Act 1950 (Act 56) (MY)
Indian Cases:
1. Shambunath Mehra v State of Ajmer (1956) AIR 404 SC
2. Md Hussain v State of Bihar [1987] CrLJ 1391 (Pat)
3. Gullegar Setty v State [1953] AIR Mys 31
4. Gurbakish Singh v Gurdial Singh (1927) 29 Bom LR 1392 PC
5. Razik Ram v J.S Chouhan (1975) AIR 667 SC
6. Ramachandran v State of Kerala [2005] CrLJ 1843
7. Arundhati Keutani v State of Orissa[1968] CrLJ 848
8. Seneviratne v R (1936) PC 289
9. Gurcharan Singh v State of Punjab (1956) AIR 460 SC
10. Mohd Usman v State of Bihar 1968 AIR 1273 SC
English cases:
1. R v Turner (1816) 5 M & S 206
Malaysian Cases:
1.
2.
3.
4.

Mohd Rizal bin Mat Yusuf v PP [2009]8 MLJ 856

Mary Ng v R [1958] AC 173
Re Tan Kheng Cheng [1962] 1 MLJ 310
Hoo Chee Keong v PP [1997] 2 CLJ Supp 357

Books:
1. A Stumer, The Presumption of Innocence: Evidential and Human Rights
Perspectives (Bloomsbury Publishing 2010) 172
2. Ratanlal & Dhirajlal, The Law of Evidence (25th edn Wadhwa & Co, New Delhi 2015
)
Articles:
1. Amer Hamzah Arshad, 'Rights of Accused Persons: Are Safeguards Being Reduced?'

[2004] The Malaysian Bar Articles

<http://www.malaysianbar.org.my/human_rights/rights_of_accused_persons_are_safe
guards_being_reduced_.html> accessed 19 September 2016