# WasimKhan v. The State of Uttar Pradesh Imamj

- **Citation:** [1956] 1 S.C.R. 199
- **Court:** Supreme Court of India
- **Decided:** 1956-03-12
- **Case number:** Criminal Appeal No. 65 of 1954
- **Bench:** Vivian Bose, Chandrasekhara Aiyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/wasimkhan-v-the-state-of-uttar-pradesh-imamj-1302
- **Pages:** 7

## Headnote

Burden of proof-Proof of facts within especial knowledgeFacts eqiially within the knowudge 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).
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 194 7
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
Aimer to Abu Road and the other from Aimer 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 Aimer 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.
1956
WasimKhan
v.
The State of
Uttar Pradesh
Imamj.
1956
March 12
1956
Shambu Nath
Mehra
200
SUPREME COURT REPORTS
[1956]
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.
The St 1 v.
A.
That •· 106 of the Evidence Act does not abrogate the well·
a e of
1mcr 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 ands. 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.J.R. 1936 P.O. 169) and Senevlratne
v. R., ([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
e. 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.

## Text

~· -
S.C.R.
SUPREME COURT REPORTS
199
was and are satisfied thatit establishes the offences of
murder and robbery against the appellant and not
merely the minor offence of robbery or theft. It is
impossible to accept the submission that the evidence
does not establish any offence having been committed
by the appellant.
Having regard to what is established in the case
and the principles deducible from the cases cited, we
are satisfied that the appellant has been rightly convicted of the offences of murder and robbery. The
appeal is accordingly dismissed.
SHAMBU NATH MEHRA
v.
THE STATE OF AJMER.
[VIVIAN BOSE and CHANDRASEKHARA AIYAR JJ.]
Burden of proof-Proof of facts within especial knowledgeFacts eqiially within the knowudge 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).
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 194 7
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
Aimer to Abu Road and the other from Aimer 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 Aimer 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.
1956
WasimKhan
v.
The State of
Uttar Pradesh
Imamj.
1956
March 12
1956
Shambu Nath
Mehra
200
SUPREME COURT REPORTS
[1956]
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.
The St 1 v.
A.
That •· 106 of the Evidence Act does not abrogate the well·
a e of
1mcr 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 ands. 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.J.R. 1936 P.O. 169) and Senevlratne
v. R., ([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
e. 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.
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. 3of1952 arising out oftlie judgment and order
dated the 4th January, 1952 of the Court of Sessions
Judge at Ajmer in Criminal Appeal No. 300of1951.
B. P. Berry and B. P. Maheshwari, for the appellant.
G. K. Daphtary, 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
S.C.R.
SUPREME COURT REPORTS
201
in the office of the Divisional Engineer Telegraphs,
1956
Ajmer, has been convicted of offences under section
ShambuNath
420 of the Indian Penal Code and section 5(2) of the
Mehra
Prevention of Corruption Act, 1947 (Act II of 1947).
v.
He was sentenced to two years' rigorous imprison- The State of Afmer
ment and a fine of Rs. 100 on each count.
The substantive sentences are concurrent.
Bose/.
The substance of the offences for which he was convicted lay in obtaining sums totalling 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 discus~ 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 tra.vel
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
11ossumes 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-
"Tha. t you, on or aboutetc .................... 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
SUPREME COURT REPORTS
(1956]
1956
There is no suggestion that the journeys were. not
ShambuNath
performed and only purported to be; and it would be
Mehra
unfair to permit the State to go back on what it said
v.
in the charge at this stage, especially after the appelThe State of Afmer !ant 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
Bose J,
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-
S.C.R.
SUPREME COURT REPORTS
203
out a ticket. The burden of proving that he had a
ticket is on him".
1956
ShambuNath
But this is only an illustration and must be read
Mehra
subject to the section itself and cannot travel beyond
v.
it. The section runsThe State of Ajmer
"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 Bshall
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 pre-eminently 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 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
Bose].
1956
Sliambu Nath
Mehr'a
The State of Ajtner
Bose}.
204
SUPREME COURT REPORTS
[1956]
burden lies on an accused person to show that he did
not commit the crime for which he is tried.
These
cases are Attygalle v. Emperor(') and Seneviratne v.
R.(').
Illustration (b) to section 106 has obvious reference
to a 'l'ery 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 he purchased a
ticket. On the other hand, 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.LR. 1936 P.O. 169.
(2) (1936] S All E.R. 36, 49.
S.C.R.
SUPREME COURT REPORTS
205
were performed on 8-9-1948 and 15-9-1948.
The pro1956
secution was launched on 19-4-1950 and the app,ellant
ShambuNath
was called upon to answer the charge on 9-3-1951;
Melira
and now that the case has been remanded we are in
v.
the year 1956.
The appellant, very naturally, said The State of Ajmer
on 27-4-1951, two and a half years after the alleged
offences:
Bose J.
"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