Delhi High Court

Laxman vs State Of Nct Of Delhi on 13 September, 2011

Author: Suresh Kait

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+             CRL.REV. P.401/2011

%             Judgment delivered on:13th September, 2011

        LAXMAN                                  ..... Petitioner
                                   Through: Mr.Aagney Sail &
                                   Mr.Subash Chandra, Advs.

                     versus

        STATE OF NCT OF DELHI                   ..... Respondent
                                   Through:Ms.Rajdipa Behura,
                                   APP for State


CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may   be allowed
        to see the judgment?                        YES
     2. To be referred to Reporter or not?          YES
     3. Whether the judgment should be reported     YES
        in the Digest?

SURESH KAIT, J. (Oral)

Crl.M.A.10773/2011

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

CRL.REV.P. 401/2011

1. Issue notice. Ms.Rajdipa Behura, learned APP for

respondent/State accepts notice.

2. With the consent of both the parties this matter is

taken up for disposal.

3. Petitioner was held guilty vide judgment dated

28.01.2011 and sentence order dated 29.01.2011. Being

aggrieved, petitioner had filed the appeal before the

Sessions Court. Vide judgment dated 26.08.2011 the appeal

of the petitioner has been dismissed.

4. Ld. counsel for the petitioner submits and has raised a

legal issue that the ld. ASJ has wrongly applied Section 106

of Evidence Act in the facts and circumstances of the instant

case.

5. In the instant case PW3 who is injured/complainant, has

deposed in Court as an eyewitness of the occurrence. He

could not identify the petitioner in the Court, therefore, ld.

ASJ relied upon Section 106 of the Evidence Act and came to

the conclusion that the accused was the only person who

had knowledge about the incident.

6. It is further submitted that Section 106 of the Evidence

Act would be applied only in the case when the accused only

had information about the committing of offence, noneelse,

whereas, in the present case PW3, who was the injured and

an eyewitness had knowledge that who had committed the

offence. Moreso, the prosecution had preferred to examine

PW3.

7. Ld.counsel for the petitioner has also argued that, the

illustrations given with Section 106 of the Evidence Act is not

applicable and the court cannot rely on the illustrations while

adjudicating the case. He submits that as per the

illustrations, if a person is travelling without ticket, the

burden of proving that he had a ticket is on the accused.

8. Ld. counsel for the petitioner submits that in such a

situation there is entry in the record even at other places

where the department makes the entry. Therefore, this

illustration cannot be relied upon while applying under

Section 106 of the Evidence Act. To support this argument

he has relied upon a case of Hon'ble Supreme Court

Shambhu Nath Mehra Vs. State of Ajmer (1956 SCR

199) and submits that the Supreme Court has held that

"Section 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 section 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 a proportionately 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."

9. Ld. counsel for the petitioner submits that the

prosecution had examined PW3, therefore, the prosecution

has exercised due diligence. If PW3 could not identify the

accused or could not ascertain who has committed the

occurrence, in that case prosecution cannot shift the burden

on the accused.

10. Ms.Rajdipa Behura, Ld.APP for State submits that PW7

Vijay Singh, who was the owner of the truck, who has

deposed that on the day of the occurrence the truck was

handed over to the petitioner. However, in the cross-

examination he has stated that he did not know who was

driving the truck at the time of committing the offence.

11. Further submits that if the truck was handed over to

the petitioner, it was his duty to come forward and state who

was in possession of the truck at that particular time.

12. It is further submits that no defence has been taken by

the accused under Section 313 that at that particular time

someone else was driving the truck.

13. Ld. counsel for the petitioner has argued the case on

legal issue only, since the petitioner has come in the

revision, wherein, evidence is not to be appreciated. The

legal question raised by the petitioner is only on Section 106

of the Evidence Act, as this Section is wrongly applied by

ld.ASJ.

14. It is submitted; PW3 failed to recognize the accused at

once and it was only after the accused was pointed out by

the ld.APP for the State, that he was able to recognize him.

The first court has justified on the ground that the present

case pertains to the year 1997. In the long span of 13 years,

a person cannot be expected to remember the exact looks of

the accused, unless, his memory is refreshed.

15. Ld.counsel for the petitioner further submits to this

effect that this judgment, however, came up after 13 years

but the deposition of PW3 was recorded on 14.02.2001 i.e.

after 3½ years of the incident. Thus, the Trial Court has also

wrongly decided against the petitioner on the wrong

proposition. It is the case of the prosecution that PW3 has

identified the accused and thereafter the police wrongly

arrested the petitioner from the hospital. He further submits

that, if this is the actual position then why PW3 could not

identify the petitioner.

16. Section 106 of the Evidence Act is reproduced as

under:-

"106. Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

17. This Section is applicable in a case where the

prosecution has no clue about the occurrence of the offence

and only the accused has knowledge about the offence.

18. In the present case there was an injured eyewitness

who has been examined as PW3 by the prosecution and who

could not identify the petitioner in the court.

19. In my view ld. ASJ has wrongly applied Section 106 of

Evidence Act and the burden of the prosecution has been

shifted on the petitioners, while deciding the appeal against

the petitioner. As this issue has already been decided in the

case of Shambhu Nath (supra) when knowledge of such

facts is equally available to the prosecution, if it chooses to