Section 106 of the Indian Evidence Act states that “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” The burden of Proof generally lies with the plaintiff but according to the circumstances the burden can shift upon the person who has the knowledge.

In a recent case Madan Mahunta v. State of Orissa, a bench of Justice D Dash and Dr SK Panigrahi observed that when any offence is committed within a house, the inmates of the house would have been the witness to it. The burden of proof undoubtedly lies on the prosecution in offences like murder but we cannot sit quietly on the assumption that the prosecution alone has to prove its case.

In the instant case, the husband murdered the wife and was charged with murder and cruelty to a woman. In this case, the court relied on the testimony of the child who was present at the time in the house when the offense was taking place and convicted the husband.

Although the trial court gave him life imprisonment, later on, an appeal was filed in High Court, which modified the murder conviction into Culpable Homicide not amounting to murder.