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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

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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

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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: -

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“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

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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

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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

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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

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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