Indian Evidence Act

Sec 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.

              Illustrations:

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.

Sec 107. Burden of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Sec 108. Burden of proving that person is alive who has not been heard of for seven years. - Provided that when the question is whether a man is alive or, dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

The section 106 of the Indian Evidence Act, 1872 deals with sifting the onus of proving a particular fact on the accused or when that particular fact is especially within his knowledge. This section is only applicable once the prosecution has proved the prima facie case against the accused.1 Hence, it is clear that the section is just an exception section 101 of the Evidence Act and its applicability does not extend into taking off the legal burden from the shoulder of the prosecution. Hence the burden which is being talked about in this section is the evidential burden the onus of proving which can be shifted to the accused.

Section 107 of the Indian Evidence Act provides that if a question whether a man is dead or alive is raised and if such person was alive within 30 years of the question being raised, the burden of proving that he is dead is on the person, who affirms it.   In other words, Section 107 permits a presumption to be drawn that such a person is alive.  On the other hand, Section 108 of the Act provides that when such a question is raised and if it is proved that the person in question has not been heard of for 7 years by those who would have naturally heard of him if he had been alive, the burden of proving that the person is alive is shifted to the person who affirms it.  A reading of the two provisions of the Indian Evidence Act as noted above, would go to show that Section 108 really carves out an exception to the rule laid down in Section 107 of the Act.  The presumption that the person is alive permissible under Section 107 of the Act will cease to operate if such person has not been heard of for a period of 7 years and in such a situation a presumption in law will arise that the person is dead, which presumption, however, can be rebutted by proof being laid that the person is alive. Such proof is required to be adduced by the one who affirms that such person is alive.

Kindly go through the attached document of research student for Sec 106: