As per case facts, an FIR was lodged by C. Lalremliana stating his younger brother visited respondent No. 4's residence, was assaulted, found unconscious, and later succumbed to injuries. Investigation ...
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GAHC030006332023
2026:GAU-MZ:512
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A. NO.42 OF 2023
C. Lalremliana,
S/o- Runluaia,
R/o- Vaphai, Champhai District,
Mizoram.
…….Appellant
-Versus-
1. The State of Mizoram,
Represented by the Secretary to the Govt.
of Mizoram, Home Department.
2. SI V.L. Chama Ralte,
C/o- Champhai P/S,
Champhai-796321
3. Sh. Thanzuala,
S/o- Mankima,
R/o- Vaphai,
Champhai District, Mizoram
4. Sh. Lalramchullova,
S/o- Lalchuailova,
R/o- Vaphai,
Champhai District, Mizoram.
…….Respondent s
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– B E F O R E –
HON’BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Appellant(s) : Mr. C. Tlanthianglima, Advocate.
For the Respondent(s) : Ms. Mary L. Khiangte, Additional Public
Prosecutor, assisted by Mr. Daniel Hrahsel,
for respondent No. 1.
Mr. P. C. Lalthangmawia, Advocate for the
respondent No. 4.
Date on which judgment
is reserved : 11.09.2026.
Date of pronouncement
of judgment : 18.09.2026.
Whether the pronouncement
is of the operative
part of the judgment? : N/A.
Whether the full judgment
has been pronounced? : Yes.
JUDGMENT & ORDER (CAV)
Heard Mr. C. Tlanthianglima, learned counsel
appearing for the appellant. Also heard Ms. Mary L. Khiangte,
learned Additional Public Prosecutor assisted by Mr. Daniel
Hrahsel, learned counsel, appearing for the State respondent
and Mr. P. C. Lalthangmawia, learned counsel appearing for
the respondent No. 4.
2. This criminal appeal has been preferred under
Section 378 (4) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the “Cr.P.C.”), against the
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judgment dated 19.07.2023 passed by the learned
Additional District & Sessions Judge, Champhai (hereinafter
referred to as the “trial Court”) in S.R. No.5/2019 (Crl.
Tr.No.116/2019) (Ref: Champhai P.S. Case No. 126/2018),
whereby the respondent No.4, namely, Sh. Lalramchullova,
was acquitted of the charges framed against him. By the said
judgment dated 19.07.2023, respondent No.3, namely, Sh.
Thanzuala, was also convicted under section 304 Part-II of
the Indian Penal Code, 1860, (hereinafter referred to as the
“IPC”). However, the present appeal is confined to the
acquittal of respondent No. 4 alone.
3. The brief facts of the case are that on 28.10.2018,
an F.I.R. was lodged by the appellant, C. Lalremliana, stating
that his younger brother, Lalramsiama (hereinafter referred to
as the “deceased”), had visited the residence of respondent
No. 4 on 27.10.2018 but had not returned home. The
appellant subsequently came to know that the deceased had
been assaulted at the residence of respondent No. 4. Upon
reaching the said residence on 28.10.2018, he found the
deceased lying unconscious and injured on the floor. The
deceased succumbed to his injuries at about 12:30 p.m. on
the same day. Accordingly, the F.I.R. was lodged against the
accused persons.
4. Upon commencement of investigation, statements of
the witnesses were recorded, a sketch map of the place of
occurrence was prepared and the body of the deceased was
sent for post-mortem examination. Respondent Nos. 3 and 4
were arrested and their statements were recorded. Upon
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completion of investigation, a charge-sheet was submitted
against both accused persons under Sections 302/34 of the
IPC.
5. The learned trial Court, upon the
accused/respondent Nos. 3 and 4 pleading not guilty, framed
charges against them under Sections 302/34 of the IPC.
During trial, the prosecution examined five witnesses.
6. In his examination under Section 313 Cr.P.C.,
respondent No. 4 denied having assaulted the deceased. He
stated that he had intervened to separate the deceased and
respondent No. 3 when they were fighting and had restrained
the deceased when he attempted to take up a kn ife.
Respondent No. 3, in his examination under Section 313
Cr.P.C., admitted that an altercation had taken place between
himself and the deceased, but denied that the deceased died
as a consequence of his assault. According to him, the
deceased was subsequently assaulted by respondent No. 4
after they had gone to sleep. Respondent No. 3 examined
himself as DW-1. Respondent No. 4 examined T.S.
Thangchhunga as DW-2, who deposed that he had gone to
the residence of respondent No. 4 for dinner but had left
along with respondent No. 4 for his own residence, where he
remained in conversation with respondent No. 4 till about
11:00 p.m., after which respondent No. 4 returned to his own
residence.
7. Upon completion of the evidence and hearing the
parties, the learned trial Court acquitted respondent No. 4 for
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want of sufficient evidence, while respondent No. 3 was
convicted under Section 304 Part II of the IPC and sentenced
to undergo rigorous imprisonment for three years and to pay
a fine of Rs.10,000/-, in default whereof to undergo a further
period of imprisonment for eight months.
8. Being aggrieved by the acquittal of respondent No.
4, the informant/appellant has preferred the present appeal.
9. Mr. C. Tlanthianglima, learned counsel appearing for
the appellant submits that the learned trial Court erred in
acquitting respondent No. 4 despite the deceased having
spent the night at his residence and having been found there
in an unconscious and severely injured condition on the
following morning. According to learned counsel, respondent
No. 4 was therefore required to explain the circumstances in
which the deceased sustained the injuries.
10. Learned counsel further submits that respondent No.
3, while deposing as DW-1, categorically stated that after
respondent No. 4 returned home and came to know that the
deceased had spilled the food, respondent No. 4 punched and
kicked the deceased several times. It is contended that this
evidence ought to have been considered on its own merits
and not discarded merely because DW-1 was a co-accused.
Learned counsel also relies upon the evidence of PW-5, the
Investigating Officer, who deposed regarding the statement
allegedly made by respondent No. 3 during investigation that
respondent No. 4 had kicked the deceased on his back and
pelvic area. Reliance is also placed upon Section 30 of the
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Indian Evidence Act, 1872 (hereinafter referred to as the
“Evidence Act”) to contend that the confession of a co-
accused can be taken into consideration against another
accused. He accordingly submits that the evidence, when
considered cumulatively, establishes the involvement of
respondent No. 4 and that the acquittal is the result of an
erroneous appreciation of the evidence.
11. Ms. Mary L. Khiangte, learned Additional Public
Prosecutor, adopting the submissions made on behalf of the
appellant, submits that the evidence of a defence witness is
required to be assessed by the same standard as that of a
prosecution witness. According to learned counsel, the
learned trial Court ought to have considered the testimony of
DW-1 on its merits and ought not to have acquitted
respondent No. 4 merely because PW-2 did not witness the
alleged assault by him. She further submits that since PW-2
has left the deceased in the company of respondent No.4
after waking up in the morning to inform the brother of the
deceased, respondent No. 4 was liable under Section 106 of
the Evidence Act to explain as to what had happened in the
intervening period leading ultimately to the death of the
deceased in the house of respondent No. 4.
12. Per contra, Mr. P. C. Lalthangmawia, learned counsel
for respondent No. 4, submits that the deceased was not in
the exclusive company of respondent No. 4 at the relevant
time and that the mere fact that the deceased died at the
residence of respondent No. 4 does not, by itself, attract
Section 106 of the Evidence Act so as to displace the
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prosecution’s primary burden of establishing the guilt of the
accused beyond reasonable doubt. It is contended that
Section 106 cannot be invoked to dispense with the
requirement of proving the complete chain of circumstances
connecting respondent No. 4 with the commission of the
offence. He further submits that the learned trial Court, upon
a proper appreciation and analysis of the evidence on record,
particularly the testimony of PW-2, rightly acquitted
respondent No. 4. According to the learned counsel, the view
taken by the learned trial Court is a possible and reasonable
view on the evidence, and there being no compelling
circumstance warranting interference, the acquittal of
respondent No. 4 ought not to be disturbed in the present
appeal.
13. I have considered the submissions advanced on
behalf of the parties and have carefully examined the
evidence and other materials available on record.
14. At the outset, it is necessary to bear in mind the
limited scope of the present appeal. The challenge before this
Court is confined to the acquittal of respondent No. 4. The
conviction and sentence imposed upon respondent No. 3
under Section 304 Part II of the IPC are not under challenge
in the present appeal and, therefore, do not fall for
consideration.
15. It is well settled that an appellate Court hearing an
appeal against acquittal is competent to reappreciate the
entire evidence and arrive at its own conclusion. However, the
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mere fact that another view of the evidence is possible is not,
by itself, sufficient to justify interference with an acquittal.
Where the view taken by the trial Court is a reasonable and
plausible view of the evidence, the appellate Court would
ordinarily be slow to substitute its own view unless the finding
is shown to be perverse, manifestly erroneous or wholly
unsustainable.
16. The Apex Court in Banwari Ram & Others v.
State of U.P., reported in (1998) 9 SCC 3, has reiterated
that although the High Court possesses full power to
reappreciate evidence in an appeal against acquittal,
interference is warranted where the reasons given by the trial
Court are wholly unsustainable or its appreciation of evidence
is perverse. Where two views are reasonably possible, one
supporting the acquittal and the other indicating guilt, the
appellate Court should not interfere merely because it may
prefer the latter view.
17. The question, therefore, is whether the evidence on
record, independently of the alleged statement of the co-
accused, establishes the participation of respondent No. 4 in
the assault which caused the death of the deceased.
18. PW-1 is the informant and brother of the deceased.
His evidence regarding the alleged assault by respondent No.
4 is admittedly not based upon his own perception. He
reached the residence of respondent No. 4 only after the
morning Church service and had learnt about the occurrence
from others. His evidence regarding the alleged assault by
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respondent No. 4 is therefore hearsay and cannot, by itself,
establish his involvement.
19. The evidence of PW-2 assumes particular
significance, as he was present during the material events
and witnessed the physical altercation preceding the
deceased being taken to sleep. PW-2 deposed that
respondent No. 4 had slaughtered a pig and invited him for
dinner. He initially went to the residence but left before dinner
and returned at about 8:00 p.m. Upon his return, he found
the deceased and respondent No. 3 engaged in a quarrel.
20. According to PW-2, respondent No. 3 told him that
the deceased had kicked the pot containing the meat, spilling
its contents, which had led to the quarrel. The verbal
altercation thereafter became physical. The deceased
attempted to punch respondent No. 3. When respondent No.
3 dodged the blow, the deceased lost his balance and fell
against a long bench, hitting his stomach and face. He
thereafter stood up and punched respondent No. 3, who
retaliated by giving him two or three punches. The deceased
then took hold of a traditional Mizo bowie/dao. It was at this
stage that respondent No. 4 returned home. PW-2 stated that
respondent No. 4 intervened, managed to take the dao from
the deceased and restrained him. The fight stopped
thereafter. This part of the testimony is important because it
places respondent No. 4 at the scene only after the physical
altercation between the deceased and respondent No. 3 had
already occurred.
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21. PW-2 further deposed that after the situation had
calmed down, they continued chatting. As the deceased was
too intoxicated to return home, respondent No. 4 asked him
to stay the night and arranged a place for him to sleep on the
floor. Thereafter, PW-2, the deceased and respondent No. 3
all went to sleep at the residence of respondent No. 4.
22. Thus, the deceased did not spend the relevant night
alone with respondent No. 4. PW-2 and respondent No. 3
were also present and remained in the same house. This
circumstance assumes considerable importance in examining
the submission founded upon Section 106 of the Evidence
Act.
23. On the following morning, PW-2 noticed the
deceased tossing and turning and appearing unwell. They
went to inform the elder brother of the deceased. PW-2
thereafter left and returned at about 1:00 p.m., when he
found the deceased in a serious condition, with people
attending to him. He stated that he believed the deceased
might have suffered the injury when he fell against the bench.
24. In cross-examination, PW-2 specifically clarified that
he was the only person present when the deceased and
respondent No. 3 were fighting. He stated that respondent
No. 4 was not present at that time and came home only after
the fight had taken place. He reiterated that respondent No. 4
intervened and stopped the fight. The evidence of PW-2,
therefore, provides a continuous account of the material
events preceding the deceased being taken to sleep, i.e., the
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fight between the deceased and respondent No. 3, the
deceased’s fall against the bench, the punches delivered by
respondent No. 3, the subsequent arrival of respondent No. 4
and his intervention to stop the fight.
25. PW-3 deposed regarding the condition in which the
deceased was found on the following morning. His evidence,
however, does not disclose who inflicted the injuries.
26. PW-4, the Medical Officer who conducted the post-
mortem examination, deposed that the death could be due to
blunt injury to the frontal and left temporal region with an
underlying fracture of the base of the skull resulting in
subdural and subarachnoid haemorrhage.
27. Pertinently, the medical evidence is not inconsistent
with the physical altercation described by PW-2. The
prosecution’s own evidence establishes that, before
respondent No. 4 returned, the deceased had fallen against a
bench and had thereafter received two or three punches from
respondent No. 3. The medical evidence does not exclude the
possibility that the serious injury was sustained during the
said altercation. It is not necessary in the present appeal to
conclusively determine the precise manner in which the fatal
injury was caused. What is relevant is that the prosecution
has not excluded, by reliable evidence, the possibility arising
from its own eyewitness account.
28. PW-5, the Investigating Officer, deposed regarding
the investigation and proved the relevant documents. He also
stated that respondent No. 3 had told him during
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interrogation that respondent No. 4 had kicked the deceased
on his back and pelvic area. PW-5 further stated that
respondent No. 4 had told him during interrogation that
respondent No. 3 had beaten the deceased and that
respondent No. 4 had subsequently kicked him three times.
29. The alleged statements made by the accused
persons to PW-5, the Investigating Officer, in the course of
investigation, cannot, by themselves, be regarded as
substantive evidence of their guilt. The testimony of PW-5 as
to the statements allegedly made by the accused does not, in
the absence of any legally admissible corroborative material,
establish the truth of the facts asserted therein. It is a settled
principle of law that a statement made by an accused to a
police officer during investigation is not admissible as
substantive evidence against the maker, save to the limited
extent permitted by law. Consequently, the mere fact that
PW-5 has deposed as to what the accused allegedly stated
during investigation cannot be made the basis for recording a
finding of guilt. [Refer: - Murli alias Denny v. State of
Rajasthan, reported in 1995 Supp (1) SCC 39, and
Commissioner of Police, New Delhi v. Na render Singh,
reported in (2006) 4 SCC 265.]
30. The appellant also relies upon Section 30 of the
Evidence Act. The provision, however, does not permit the
confession of a co-accused to be treated as substantive
evidence against another accused. In Hari Charan Kurmi
and Jogia Hajam v. State of Bihar, reported in 1964 SCR
(6) 623, the Apex Court held that the confession of a co-
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accused is not substantive evidence against another accused
and can only be used to lend assurance to a conclusion
otherwise reached on the basis of independent evidence.
31. The aforesaid principle assumes significance in the
facts of the present case. The Court cannot begin with the
alleged statement of respondent No. 3 and thereafter search
for circumstances to support it. The prosecution must first
establish, through independent and substantive evidence, the
involvement of respondent No. 4. Only thereafter can the
confession of a co-accused, subject to the requirements of
law, be considered for limited corroborative assurance.
32. No such independent evidence implicating
respondent No. 4 emerges from the testimony of the
prosecution witnesses. PW-1 did not witness the occurrence.
PW-2, the material eyewitness, does not implicate respondent
No. 4 and, on the contrary, states that he intervened to stop
the fight. PW-3 only speaks about the condition in which the
deceased was found. PW-4 establishes the cause of death but
not the identity of the assailant. PW-5 merely narrates the
alleged statements made during investigation.
33. The evidence of DW-1, respondent No. 3, must next
be considered. In Munshi Prasad and Ors., reported in
(2002) 1 SCC 351, the Apex Court has held that the
evidence tendered by the defence witness is to be treated on
a par with prosecution witness. Therefore, the testimony of a
defence witness cannot be discarded merely because he has
been examined by the defence. His evidence has to be
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assessed on its intrinsic worth, consistency and compatibility
with the other evidence on record.
34. In his examination-in-chief, DW-1 stated that after
respondent No. 4 returned home and learnt that the deceased
had spilled the food, respondent No. 4 became angry and
punched and kicked the deceased several times. The
appellant places considerable reliance upon this portion of his
testimony.
35. However, DW-1’s testimony has to be read as a
whole. During cross-examination, he stated that after some of
the guests had left, respondent No. 4 had asked him and the
deceased to take care of the house and heat the leftover
meat. It was then that the quarrel between him and the
deceased took place. He further stated that PW-2 entered the
house, saw them fighting and asked them to stop. Thereafter,
they went to sleep.
36. The cross-examination of DW-1 does not disclose
the presence of respondent No. 4 during the time of the
assault. Significantly, his subsequent answers confirm the
presence of PW-2 during the quarrel and that the quarrel was
stopped before they went to sleep. This part of DW-1’s
evidence is substantially consistent with PW-2, who
independently stated that respondent No. 4 was not present
when the physical fight occurred and returned thereafter, at
which point he intervened and stopped the situation.
37. The appellant cannot selectively rely upon the
incriminating portion of DW-1’s examination-in-chief while
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disregarding the material answers elicited in cross-
examination. His testimony has to be considered in its
entirety. So considered, it does not furnish an unambiguous
and consistent account establishing that respondent No. 4
assaulted the deceased after returning home.
38. The presence of PW-2 and respondent No. 3 in the
house throughout the relevant night is also significant. PW-2
was an eyewitness to the altercation. Respondent No. 3 was
himself involved in that altercation. Both remained in the
house after the fight and went to sleep along with the
deceased. There is therefore no basis for proceeding on the
assumption that the deceased was in the exclusive company
or custody of respondent No. 4 during the relevant period.
39. This also answers the submission founded upon
Section 106 of the Evidence Act. The provision does not
displace the fundamental rule that the prosecution must
establish the guilt of the accused by legally admissible
evidence. Section 106 operates only in respect of facts which
are especially within the knowledge of the accused and
cannot be invoked merely because the occurrence is alleged
to have taken place at a place associated with him. The
prosecution must first establish such foundational facts as
would furnish a reasonable basis for drawing an inference
against the accused. Section 106 cannot be employed to
bridge a deficiency or lacuna in the prosecution evidence, nor
does it cast upon the accused the burden of proving his
innocence. The Apex Court, in State of Madhya Pradesh v.
Balveer Singh, reported in (2025) 8 SCC 545, reiterated
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that where the prosecution fails to establish the requisite
chain of circumstances, the failure of the accused to discharge
the burden under Section 106 is of no consequence. The
falsity of the defence, by itself, cannot furnish a basis for
conviction when the chain of circumstances relied upon by the
prosecution remains incomplete. Relevant paragraphs of the
aforesaid judgment read as under: -
“85. Thus, from the aforesaid decisions of this Court, it is
evident that the court should apply Section 106 of the Evidence
Act in criminal cases with care and caution. It cannot be said
that it has no application to criminal cases. The ordinary rule
which applies to criminal trials in this country that the onus lies
on the prosecution to prove the guilt of the accused is not in any
way modified by the provisions contained in Section 106 of the
Evidence Act.
86. Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the
guilt of the accused. This section cannot be used to support a
conviction unless the prosecution has discharged the onus by
proving all the elements necessary to establish the offence. It
does not absolve the prosecution from the duty of proving that a
crime was committed even though it is a matter specifically
within the knowledge of the accused and it does not throw the
burden on the accused to show that no crime was committed. To
infer the guilt of the accused from absence of reasonable
explanation in a case where the other circumstances are not by
themselves enough to call for his explanation is to relieve the
prosecution of its legitimate burden. So, until a prima facie case
is established by such evidence, the onus does not shift to the
accused.
87. Section 106 obviously refers to cases where the guilt of the
accused is established on the evidence produced by the
prosecution unless the accused is able to prove some other facts
especially within his knowledge which would render the evidence
of the prosecution nugatory. If in such a situation, the accused
offers an explanation which may be reasonably true in the
proved circumstances, the accused gets the benefit of reasonable
doubt though he may not be able to prove beyond reasonable
doubt the truth of the explanation. But if the accused in such a
case does not give any explanation at all or gives a false or
Page 17 of 25
unacceptable explanation, this by itself is a circumstance which
may well turn the scale against him. In the language of Prof.
Glanville Williams:
“All that the shifting of the evidential burden does at the
final stage of the case is to allow the jury (Court) to take
into account the silence of the accused or the absence of
satisfactory explanation appearing from his evidence.”
(Emphasis supplied)
88. To recapitulate the foregoing : What lies at the bottom of the
various rules shifting the evidential burden or burden of
introducing evidence in proof of one’s case as opposed to the
persuasive burden or burden of proof, i.e., of proving all the
issues remaining with the prosecution and which never shift is
the idea that it is impossible for the prosecution to give wholly
convincing evidence on certain issues from its own hand and it is
therefore for the accused to give evidence on them if he wishes to
escape. Positive facts must always be proved by the prosecution.
But the same rule cannot always apply to negative facts. It is not
for the prosecution to anticipate and eliminate all possible
defences or circumstances which may exonerate an accused.
Again, when a person does not act with some intention other
than that which the character and circumstances of the act
suggest, it is not for the prosecution to eliminate all the other
possible intentions. If the accused had a different intention that
is a fact especially within his knowledge and which he must
prove (see Professor Glanville Williams—Proof of Guilt, Ch. 7,
page 127 and following) and the interesting discussion—para
527 negative averments and para 528 — “require affirmative
counter-evidence” at page 438 and foil, of Kenny’s outlines of
Criminal Law, 17th Edn. 1958.
89. But Section 106 has no application to cases where the fact in
question, having regard to its nature, is such as to be capable of
being known not only to the accused but also to others, if they
happened to be present when it took place. The intention
underlying the act or conduct of any individual is seldom a
matter which can be conclusively established; it is indeed only
known to the person in whose mind the intention is conceived.
Therefore, if the prosecution has established that the character
and circumstance of an act suggest that it was done with a
particular intention, then under illustration (a) to this section, it
may be assumed that he had that intention, unless he proves the
contrary.
90. A manifest distinction exists between the burden of proof and
the burden of going forward with the evidence. Generally, the
Page 18 of 25
burden of proof upon any affirmative proposition necessary to be
established as the foundation of an issue does not shift, but the
burden of evidence or the burden of explanation may shift from
one side to the other according to the testimony. Thus, if the
prosecution has offered evidence, which if believed by the court,
would convince them of the accused's guilt beyond a reasonable
doubt, the accused, if in a position, should go forward with
countervailing evidence, if he has such evidence. When facts are
peculiarly within the knowledge of the accused, the burden is on
him to present evidence of such facts, whether the proposition is
an affirmative or negative one. He is not required to do so even
though a prima facie case has been established, for the court
must still find that he is guilty beyond a reasonable doubt before
it can convict. However, the accused's failure to present
evidence on his behalf may be regarded by the court as
confirming the conclusion indicated by the evidence presented by
the prosecution or as confirming presumptions which might arise
therefrom. Although not legally required to produce evidence on
his own behalf, the accused may therefore as a practical matter
find it essential to go forward with proof. This does not alter the
burden of proof resting upon the prosecution [See: Balvir Singh
v. State of Uttarakhand and Anees v. State Govt. of NCT]”
40. The same principle has been reiterated by the Apex
Court in Anees v. State Government of NCT , reported in
(2024) 15 SCC 48. Section 106 is intended to address those
exceptional situations where a particular fact is pre-eminently
or exclusively within the knowledge of the accused. It does
not, however, relieve the prosecution of its primary obligation
to establish, by evidence, the essential circumstances
constituting the offence. The provision may, in an appropriate
case, require the accused to offer an explanation in respect of
facts specially within his knowledge; but such obligation arises
only after the prosecution has laid the necessary factual
foundation. Relevant paragraphs of the aforesaid judgment
read as under: -
Page 19 of 25
“37. Section 106 of the Evidence Act referred to
above provides that when any fact is especially within
the knowledge of any person, the burden of proving
that fact is upon him. The word “especially” means
facts that are pre-eminently or exceptionally within
the knowledge of the accused. The ordinary rule that
applies to the criminal trials that the onus lies on the
prosecution to prove the guilt of the accused is not in
any way modified by the rule of facts embodied
in Section 106 of the Evidence Act. Section 106 of the
Evidence Act is an exception to Section 101 of the
Evidence Act. Section 101 with its illustration (a) 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 the facts which are, “especially within the
knowledge of the accused and which, he can prove
without difficulty or inconvenience”.
41. Tested on the aforesaid principles, the very factual
foundation for invoking Section 106 against respondent No. 4
is absent in the present case. The deceased was not in the
exclusive company of respondent No. 4 during the material
events of the preceding night. PW-2 and respondent No. 3
were also present. More importantly, PW-2 witnessed the
physical altercation which preceded the deceased being taken
to sleep. The present case is, therefore, materially
distinguishable from cases where the deceased is found dead
in a secluded place while in the exclusive company of the
accused and the circumstances immediately preceding the
death remain unexplained.
42. The circumstance that the deceased was
ultimately found injured at the residence of respondent No. 4
Page 20 of 25
undoubtedly requires consideration. However, that
circumstance, standing alone, cannot establish that
respondent No. 4 inflicted the fatal injury. It has to be
assessed in the context of the entire evidence on record,
particularly the ocular testimony of PW-2 and the medical
evidence. The prosecution cannot rely upon the mere place of
occurrence to dispense with proof of the intervening
circumstances connecting respondent No. 4 with the injury.
43. The prosecution’s own evidence discloses a physical
altercation between the deceased and respondent No. 3
during the preceding night. PW-2 states that, in the course of
the altercation, the deceased fell against a bench and was
thereafter punched two or three times. The medical evidence
establishes a blunt-force injury to the head. Significantly,
however, the medical evidence does not disclose any
additional injury suggestive of a subsequent assault. Nor does
it establish that a further assault necessarily occurred after
the parties had gone to sleep.
44. Equally significant is the evidence of PW-2 regarding
the events subsequent to the altercation. PW-2 remained in
the house after respondent No. 4 returned and intervened to
stop the quarrel. According to his testimony, the parties
thereafter continued chatting and subsequently went to sleep.
PW-2 does not attribute any subsequent assault upon the
deceased to respondent No. 4. If the prosecution case is that
respondent No. 4 thereafter assaulted the deceased, that
circumstance was required to be established by cogent and
reliable evidence. No such evidence has been adduced. Such
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an assault cannot be presumed merely from the subsequent
condition of the deceased.
45. The evidence of DW-1 does not advance the
appellant’s case against respondent No. 4. Though, in his
examination-in-chief, DW-1 attributed an assault upon the
deceased to respondent No. 4, his testimony in cross-
examination materially detracts from that version. His
answers in cross-examination do not support the assertion of
a subsequent assault by respondent No. 4 and are consistent
with the presence of PW-2 during the relevant events and the
parties thereafter going to sleep. His testimony, when read as
a whole, therefore does not furnish a clear, consistent and
reliable account establishing that respondent No. 4 assaulted
the deceased after the earlier quarrel had ended.
46. PW-2 was present during the relevant events and
witnessed the altercation between the deceased and
respondent No. 3, the deceased falling against the bench and
the subsequent punches delivered by respondent No. 3. He
further stated that respondent No. 4 returned thereafter,
intervened and stopped the altercation. PW-2 remained in the
house along with the deceased and respondent No. 3
thereafter, yet did not speak of any subsequent assault upon
the deceased by respondent No. 4. The explanation furnished
by respondent No. 4 in his examination under Section 313
Cr.P.C. is also substantially consistent with the account given
by PW-2. It is settled law that the statement of an accused
under Section 313 Cr.P.C. is not substantive evidence and
cannot, by itself, form the basis of conviction. However, the
Page 22 of 25
answers given by an accused may be taken into consideration
and may lend assurance to, or corroborate, the prosecution
evidence where such evidence otherwise inspires confidence.
In Mohan Singh v. Prem Singh and Anr. , reported in
(2002) 10 SCC 236, the Apex Court held that a statement
under Section 313 Cr.P.C. is not substantive evidence or a
substitute for the prosecution evidence. Likewise, in Ashok
Debbarma alias Achak Debbarma v. State of Tripura ,
reported in (2014) 4 SCC 747, it was held that the statement
of the accused under Section 313 Cr.P.C., by itself, cannot
constitute the basis for conviction, though it may be taken
into consideration along with other evidence on record.
Viewed thus, the statement of the accused recorded under
Section 313 of the Cr.P.C., if favourable to the accused and
also is corroborating the testimony of the prosecution witness
itself, the same cannot be brushed aside by the trial Court.
47. The aforesaid evidence materially weakens the
prosecution’s attempt to invoke Section 106 of the Evidence
Act against respondent No. 4. Though PW-2 and DW-1 stated
that they went out of the house in the morning to inform the
brother of the deceased about his injured condition, thereby
leaving the deceased with respondent No. 4 for some time,
that circumstance cannot be considered in isolation. The
prosecution’s own evidence furnishes an account of the
material circumstances preceding the death. The deceased
had already sustained the head injury during the preceding
night, in the course of the altercation, and was already in an
injured condition when he was taken to sleep. There is no
Page 23 of 25
evidence of any intervening assault thereafter. Significantly,
the post-mortem examination does not disclose any fresh or
additional injury suggestive of a subsequent assault. Thus,
there is no evidentiary foundation for drawing an inference
that the deceased sustained any further injury during the
period when he was left alone with respondent No. 4. In
these circumstances, the mere fact that respondent No. 4
remained with an already injured deceased for some time in
the morning cannot, by itself, attract Section 106 or cast upon
him the burden of explaining the fatal injury.
48. In these circumstances, the fact that respondent
No. 4 was present with the deceased for a period in the
morning cannot, by itself, attract Section 106 of the Evidence
Act. The prosecution’s own evidence substantially accounts
for the relevant sequence of events and does not establish
any intervening act attributable to respondent No. 4. Section
106 of the Evidence Act cannot be invoked merely because
the deceased subsequently died at the residence of
respondent No. 4, particularly when the prosecution has failed
to establish that any fresh assault took place during the
period in question. In other words, to require respondent No.
4 in the facts of the present case, to explain the death in such
circumstances would effectively amount to shifting the
primary burden of proof onto him, which Section 106 does
not permit.
49. Nor can the alleged statements made by the accused
persons to the Investigating Officer supply the deficiency in
the prosecution evidence. Such statements cannot be treated
Page 24 of 25
as substantive evidence of guilt. In particular, the alleged
statement of respondent No. 3 implicating respondent No. 4
cannot, by resort to Section 30 of the Evidence Act, be made
the foundation for recording a finding of guilt against
respondent No. 4 in the absence of substantive and
independent evidence connecting him with the commission of
the offence.
50. On an overall consideration of the evidence, the
prosecution has undoubtedly established the death of the
deceased and the nature of the fatal injury. What, however,
remains unestablished is the essential link connecting
respondent No. 4 with the infliction of that injury. The mere
circumstance that the deceased was found in an injured
condition at the residence of respondent No. 4, in the absence
of reliable evidence establishing the intervening circumstances
and his participation in the assault, cannot sustain a finding of
guilt. The circumstance may give rise to suspicion, but
suspicion, however strong, cannot take the place of proof.
The prosecution having failed to establish the requisite link
beyond reasonable doubt, the benefit of such doubt must
necessarily enure to respondent No. 4.
51. In an appeal against acquittal, the issue is not
whether another inference against respondent No. 4 is
possible, but whether the view taken by the learned trial
Court is so unreasonable or perverse as to warrant appellate
interference. On a reappreciation of the evidence, the finding
that the prosecution failed to establish the involvement of
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respondent No. 4 is plainly a possible and reasonable view of
the record.
52. This Court, therefore, finds no perversity, manifest
error or other compelling circumstance warranting
interference with the acquittal of respondent No. 4. The
impugned judgment and order, insofar as it acquits
respondent No. 4, consequently calls for no interference.
53. It is clarified that the present appeal is confined to
the acquittal of respondent No. 4. The conviction and
sentence imposed upon respondent No. 3 under Section 304
Part II of the IPC are not under challenge and, accordingly,
no opinion is expressed thereon.
54. For the foregoing reasons, the appeal, insofar as it
challenges the acquittal of respondent No. 4, is dismissed.
The judgment and order of acquittal passed by the learned
trial Court in favour of respondent No. 4 are affirmed.
55. The Registry shall return the records to the learned
trial Court forthwith.
JUDGE
Comparing Assistant
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