P. Govinda Menon, J.
1. The petitioners have been convicted under Rule 8 of the Rules framed under Section 112(2) (xxvi) of the Madras Village Panchayats Act, X of 1950, for having contravened Rule 5. the charge against them was that they cremated a dead body in R. S. 555/13 of Cherukumm amsom which is a plaqe within a distance of 100 yards, from dwelling houses and wells.
2. The fact that the dead body has in fact been cremated by the accused is amply proved and is not seriously disputed. Rule -5 says :
'No person shall bury, burn or otherwise disoose of, or cause or suffer to be buried, burnt or otherwise disposed of, any corpse in an/ place within a hundred yards of a dwelling place or source of drinking water supply other than a place provided, registered or licensed as aforesaid.'
So the prosecution has to prove that the site where cremation took place is not a place provided, registered or licensed and tliat it is within a hundred yards of dwelling house or source of drinking water supply. That it is within 100 yards of dwelling houses or source of water supply is proved and is not disputed. The only question that remains is whether it is not in a place 'provided, registered or licensed'. There is no case that it is a burial place provided under R. 1 or that it is a place licensed.
3. The evidence is that it is an ancient burlal ground. Rule 2(1) says;
'Every owner or person having the control of any place used as a place for burying, burning or otherwisedisposing of the dead shall, if such place be not already registered under the Madras Village Pancbayats Act, 1950 or under the Madras District Boards Act, 1920, apply to the Panchayat to have such place registered.'
Rule 4 enjoins on the panchayat to keep a register in which places provided, registered or licensed under Rules 1 to 3 are to be entered. Neither P. W. 1, the Executive Authority or P. W. 2 the Health Inspector, has given evidence that this ancient burial ground is not registered, Nor have they produced the register maintained in the Panchayat to show that this burial ground is not seen Included in tha register. The learned Magistrate proceeded on the basis that the burden of proving that this ground is not a registered one is not on the prosecution and it was for the accused to prove that it is a registered burial ground. The learned District Magistrate stated :
'The words, 'other than a place provided, registered or licensed as the aforesaid' are introduced in the rule by way of exception and it is for the accused, to prove that the burning or burial does not come within the prohibition.'
This view of the learned Magistrate does not appear to be correct.
4. Probably the learned Magistrate had in view Sec. 105 of the Evidence Act. Section 106 says :
'When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.'
The ordinary rule that applies to criminal trials that tha onus lies on the prosecution to prove the guilt of the accused is not in any way modified by this rule of evidence. The section cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a leasonable inference of guilt unless the Sams is rebutted and such inference can be negatived by proof of some fact which in its nature can only be within the special knowledge of tlje accused.
5. This question whether Sec. 106 would apply in cases of this nature came up for consideration in Shambu Nath Mehra v. State of Ajmer, (S) AIR 1956 SC 404. That was a case where a public servant was prosecuted for having cheated the Government by claiming second class fare while in fact he did not travel in that class. The only evidence that was adduced by the prosecution was the evidence that no second class ticket was issued at Ajmer on the relevant date. This was proved by P. W. 4, the booking clerk, but the same witness had given evidence that even though no second class tickets were seen to . have been issued, sometimes passengers buy third class or inter class tickets and travel in second class if they can get accommodation by paying excess fare in train, and that the railway register and books would show whether or not any such payment was made on the relevant dates. No such evidence was adduced but the Stale satisfied themselves by relying on illustration (b) to Sec. 106 and contended that the burden of proof that the accused did pay second class fare was on him. Their Lordships negatived the contention and observed :
'Section 106 is an exception to Sec. 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecu-tion and Section 106 is certainly not intended to relieve it of that duty. On the contrary it is designed to meetcertain exceptional cases in which it would be impossibie, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially within the knowledge of accused and which he could prove without difficulty or inconvenience'. The word 'especially' stresses that, it means facts that are prominently or exceptionally within his knowledge.'
and it was held that :
'the relevant and material information was as much wifhin the especial knowledge of the prosecution as in that of the accused and the prosecution could not rely upon illus. (b) to Section 106.'
On this ground the accused was acquitted. Similarly in this case the prosecution has failed to prove the essential ingredients of the offence and there was no duty cast on the accused to prove their innocence. The conviction and sentence are, therefore, set aside and the accused are ordered to be acquitted. Fine if paid, would he refunded.