JUDGMENT Suman Shyam, J. - Both the appellants are related to the deceased and also to each other. It appears that the appellant No.1 Nikhil Chandra Das is the brother of the deceased and the appellant no. 2 Anupriya Bala Das is the wife of the deceased late Rameswar Das. By the impugned judgement and order dated 25/09/2018 passed in Diphu Sessions case No. 37/1987, the appellants have been convicted under Section 302/34 of the Indian Penal Code (IPC) for committing the murder of the deceased Rameswar Das and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 1,000/- each, in default, to undergo simple imprisonment for a further period of two months. 2. The incident took place in the year 1986. The prosecution case, in a nutshell, is that on the night of 08/03/1986, the accused persons, in furtherance of their common intention, had committed murder of Rameswar Das. On 09/03/1986, the co-accused Anupriya Bala Das i.e. the wife of the deceased had lodged an ejahar with the Howraghat Police Station, inter-alia, stating that on the night of the incident, about 4/5 unidentified miscreants had entered into the house by opening the door and there-after putting gags on the mouth of her brother-in-law and herself, they had killed her husband and went away. She had made an attempt to raise alarm but the miscreants had assaulted her. It was also mentioned in the ejahar that the informant was not aware as to what weapon they used but she sustained injuries on her left eyebrow and legs. According to the ejahar, the miscreants had also assaulted the brother-in-law of the informant. The ejahar also mentions that the informant went to the house of 'Nantu' and screamed for help but could not understand why the miscreants had killed her husband. 3. Based on the ejahar dated 09/03/1986, Howraghat Police Station Case No. 34/1986 was registered under Section 447/302 of the IPC. Upon completion of the investigation, the I.O. had submitted charge sheet under Section 302/34 of the IPC against both the accuseds. The accused persons had pleaded innocence, as a result of which, the matter went up for trial. 4. The prosecution side had examined 7 (seven) witnesses so as to prove the charge brought against the accuseds. Upon completion of the investigation, the I.O. had submitted charge sheet under Section 302/34 of the IPC against both the accuseds. The accused persons had pleaded innocence, as a result of which, the matter went up for trial. 4. The prosecution side had examined 7 (seven) witnesses so as to prove the charge brought against the accuseds. After recording the evidence of the prosecution witnesses, the statements of both the accused persons were recorded under section 313 Cr.P.C. whereby both of them had denied the allegations made against them. However, the accuseds did not adduce any evidence in their defence. 5. After going through the materials available on record, the learned trial Court was of the view that the accused persons were inside the house on the night of the incident and therefore, there was a burden under section 106 of the Evidence Act, 1872 on their part to explain the circumstances under which the deceased had died. However, the accused persons had failed to offer any explanation. As such, by taking note of the law laid down by the Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 , the learned trial Court had convicted the accused persons under Section 302/34 of the IPC and sentenced them to undergo rigorous imprisonment for life. 6. We have heard Mr. K. Sarma, learned counsel appearing for the appellants. We have also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, Assam, appearing for the respondent no.1. 7. Mr. Sarma, learned counsel for the appellants has argued that there is no evidence in this case to convict the appellants, inasmuch as the prosecution has failed to establish the charge brought against the accused persons by leading cogent evidence. Under the circumstances, the learned counsel for the appellant has prayed for setting aside the impugned judgement and order passed by the learned trial Court and to acquit the appellants. 8. In order to appreciate the arguments advanced by Mr. Sarma, we have gone through the evidence available on record. PW-1 Dimbeswar Bora is a neighbour of the accused and the deceased and he has deposed that on the night of the incident, both the accused persons had informed him that Rameswar had been murdered and that he should go to their house. Sarma, we have gone through the evidence available on record. PW-1 Dimbeswar Bora is a neighbour of the accused and the deceased and he has deposed that on the night of the incident, both the accused persons had informed him that Rameswar had been murdered and that he should go to their house. However, he did not like to go to their house and had asked them to request other members to come. Later on, Police came in the morning and during investigation, police had interrogated him. During his cross examination, PW- 1 has stated that he has not seen as to who had murdered Rameswar. 9. PW-2 Sri Sunil Chandra Das has deposed that the accused Anupriya is the wife of the deceased and the co-accused Nikhil was distantly related to Rameswar. PW-2 has also stated that his house is about 1 mile away from the house of Rameswar and he knows that Nikhil stays in the house of Rameswar, who is his brother-in-law i.e. the husband of his wifes younger sister. According to the PW-2, Nikhil had asked him to come out of the house for some talks and then he told that thieves had entered their home and looted money and other things. The thieves had also beaten up his brother severely. On his enquiry, Nikhil had disclosed that Rameswar was killed. The witness PW-2 has also deposed that after the occurrence, he saw many people in the courtyard and accused Anupriya was crying in the verandah. Rameswar was found lying dead. He did not notice any injury in the body of Rameswar except bleeding on the nose and some swelling on the neck. On his query, he could come to know from Anupriya that her husband was killed by some miscreants, who had entered the home by pushing the door. On his return back to home, he was told by the villagers that killers of Rameswar were the two accused persons and not others. On his further query about how they came to know that the accused persons were the culprits, the villagers said that had they not killed Rameswar, the police would not have arrested them. The witness PW-2 has also deposed that Anupriya has three children - two boys and one girl through Rameswar and on the night of the occurrence, the two boys were in the house but the girl was away. The witness PW-2 has also deposed that Anupriya has three children - two boys and one girl through Rameswar and on the night of the occurrence, the two boys were in the house but the girl was away. In his cross examination, the PW 2 has clarified that he had not seen who had killed Rameswar and that Nikhil was arrested on the same day of the incident. 10. PW-3 Sri R.K. Phukan, is the doctor on duty at the Diphu Civil Hospital, who had conducted the post mortem examination over the dead body of Rameswar. According to the PW-3, the following injuries were found in the body of the victim:- 'External appearance : A healthy male body of about 38 years of age, bleeding from the nose and mouth present either proctose and congested. R.M. absent. There is abrated area in the post rate aspect of the right elbow and the upper part of right fore arm. Multiple (4) nos. of legacha marks with abrasion on the skin in the right side of the neck. Legacha marks are horizontal and two of these are placed below the thyroid cartilage. Subcutaneous tissue and muscles below the larynx and lacerated and there is extraction of blood. Cranium and spinal cord: Healthy but congested. Thorax : In the larynx trachea these are congested and thereis blood mix Lt. lung discharge present. Left lung congested and petechial haemorrhage on surface of left lung. Heart: Healthy. Right side is full and left side is empty. Abdomen: All organs are healthy except in a mouth frainee oesophagus. There is presence of congested frosty discharge. Others healthy. Muscles, bones and joints : There is fracture of thyroid cartilage.' 11. The doctor (PW-3) had opined that all the injuries were ante-mortem and the death was caused due to asphyxia as a result of strangulation. PW-3 has also opined that the injuries were sufficient to cause instantaneous death to a healthy person. During his cross examination, PW-3 has clarified that he did not find any mark of injury by sharp cutting weapon. PW-3 has also denied the suggestion that the death was not caused by strangulation. 12. PW-3 has also opined that the injuries were sufficient to cause instantaneous death to a healthy person. During his cross examination, PW-3 has clarified that he did not find any mark of injury by sharp cutting weapon. PW-3 has also denied the suggestion that the death was not caused by strangulation. 12. PW-4 Sri Sashi Kanta Bora was the Officer-in-Charge who had taken up investigation in connection with the Howraghat PS case No. 34/1986 after the transfer of Shri Jusabanta Singh i.e. the previous I.O. The PW-4 has stated that after taking over the case, he had completed the balance work and had examined the witnesses, collected the post mortem report as well as the copy of the confessional statement. Having found prima facie materials, he had submitted charge sheet against the accused persons. 13. PW-5 Shri Haralal Das is the father of accused Anupriya Bala Das and in his deposition, PW-5 has stated that Nikhil Chandra Das was the brother of his son-in-law Rameswar, who is no more. PW-5 has deposed that Rameswar was killed by dacoits. After the occurrence, he got the information of dacoity and went to the house of Rameswar where he found him lying dead. According to the PW-5, the accused Nikhil stayed in the house of Rameswar for about one year prior to the date of occurrence. 14. PW-6 Sri Bhagawat Chandra Das is the son of the co-accused Anupriya Bala Das and the deceased Rameswar. PW-6 has stated that his father was dead and he was killed by dacoit. On 08/03/1986 while he was sleeping in the night with his mother, he woke up when his mother had raised hullah shouting 'dacoit' 'dacoit'. He got up and raised alarm and saw about 5 (five) numbers of dacoits going out of the house and while going out, they ordered him to remain silent. Then he along with his mother rushed towards the neighbours home but none of the neighbours had responded. They came back home and saw his father lying dead. The witness was declared as a hostile witness on the request of the prosecution. During his cross examination by the prosecution side, PW-6 had denied of having stated before the I.O. that he had heard sounds from the fathers room and his mother asked him to remain silent. They came back home and saw his father lying dead. The witness was declared as a hostile witness on the request of the prosecution. During his cross examination by the prosecution side, PW-6 had denied of having stated before the I.O. that he had heard sounds from the fathers room and his mother asked him to remain silent. PW-6 had also denied that when he tried to light the lamp with a match, his mother had put it off; that he had stated before the I.O. that he felt the presence of his uncle in the room of his father; that he had stated before the I.O. that while he went to enter his fathers room, his mother took him in the lap and went out. PW-6 had also denied of having stated before the I.O. that after going outside the room, her mother shouted 'dacoits' 'dacoits' but actually there was no dacoits. He has also denied of having stated before the I.O. that he did not see any dacoit entering or going out of the house and that his uncle also went out of the home after a while telling him that dacoits had killed his father. The defence side had declined cross examination of this witness. 15. PW-7 Sri Jusabanta Singh is the I.O. who had received information on 09/03/1986 at about 8-35 a.m. from one Sri Dhiren Choudhury who had verbally informed him that last night, some unknown culprits had committed murder. On receipt of the information, he had informed the matter to the officer-in-charge, Howraghat Police Station through VHF and thereafter left for the place of occurrence for investigation. PW-7 has stated that on visiting the place of occurrence had found one Rameswar Das lying dead in the floor of the house and being identified by Nikhil Chandra Das, he started inquest on the dead body in presence of the witnesses. PW-7 had also stated that he had seized some 'torn hair' and one 'dhari' and also a terecotton full shirt. The witness has proved the Ext. 1 inquest report, Ext. 2 and 3, seizure lists. PW-7 has also stated that in the meantime, the Officer-in-Charge, Howraghat Police Station has arrived and received the FIR from Anupriya Bala Das i.e. the wife of the deceased and endorsed the investigation to him. The witness has proved the Ext. 1 inquest report, Ext. 2 and 3, seizure lists. PW-7 has also stated that in the meantime, the Officer-in-Charge, Howraghat Police Station has arrived and received the FIR from Anupriya Bala Das i.e. the wife of the deceased and endorsed the investigation to him. PW-7 has further deposed that during investigation, he had suspected Nikhil Chandra Das and the wife of the deceased i.e. Anupriya Bala Das to be involved in the incident and had arrested both the accused persons. He had also sent the deceased to the Diphu Civil Hospital for post mortem examination. PW-7 has also deposed that accused Nikhil Chandra Das had confessed his guilt before the Court stating that he along with Anupriya had committed the murder. 16. A careful analysis of the evidence available on record goes to show that there is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. Therefore, the question that would arise for consideration of this Court is as to whether, the prosecution has succeeded in establishing the chain of circumstances so as to establish the guilt of the accused persons beyond reasonable doubt. 17. As noticed above, the occurrence took place at night, inside the house and it has come out from the evidence on record that apart from the deceased, the two accused persons and the sons of the accused No.2 Anupriya Bala Das, no one else was present inside the house at the time of the incident. The ejahar in this case was lodged by accused Anupriya Bala Das on 09/03/1986 reporting that some dacoits had killed her husband. 18. PW-2 has stated in his deposition that after the occurrence when he went to that place, saw Anupriya Bala Das was crying in the verandah. The son of the deceased i.e. the PW-6 was present in the house and he had seen the incident. But the PW-6 did not support the prosecution case as a result of which, he had to be declared as a hostile witness. What must, however, be noted herein that during his deposition, the I.O. did not make any attempt to contradict PW-6 with his previous statement nor was any attempt made by the prosecution to bring such statement of PW-6 recorded under section 161 Cr.P.C. on record or to prove the same. What must, however, be noted herein that during his deposition, the I.O. did not make any attempt to contradict PW-6 with his previous statement nor was any attempt made by the prosecution to bring such statement of PW-6 recorded under section 161 Cr.P.C. on record or to prove the same. As a matter of fact, we find that the I.O. who had submitted the charge sheet i.e. PW-4 was examined as a witness before examining the PW- 6. Therefore, there was no scope for the PW-4 to contradict this witness with his previous statement. The previous IO i.e. the respondent no. 7 did have the opportunity of contradicting the witness PW-6 with his previous statement but he also did not make any attempt to do so. 19. PW-7 has deposed that the accused Nikhil had confessed his guilt before the Court but we find that no such confessional statement has been brought on record by the prosecution side. 20. From a threadbare analysis of the evidence brought on record, we find that the prosecution has failed to establish the chain of circumstances so as to prove the guilt of the accused persons. The circumstances brought on record by the prosecution side do not lead to the conclusion which is consistent only with the guilt of the accused. There is not an iota of evidence available on record so as to indicate the common intent on the part of the appellants. It is to be noted herein that independent charge under section 302 of the IPC had not been framed against the accused persons in this case. That being the position, we hold that the evidence available on record is not sufficient to prove the charge brought against the accused persons under Section 302/34 of the IPC. 21. The learned trial Court had convicted the appellants solely by relying on the decision of the Supreme Court in the case of Trimukh Maroti Kirkan (supra) by holding that failure on the part of the accused persons to explain the circumstances under which the deceased had died would amount to their failure to discharge the burden U/s. 106 of the Evidence act, 1872. 22. In the case of Bandana Nath Vs. State of Assam and another [Crl. 22. In the case of Bandana Nath Vs. State of Assam and another [Crl. A (J) 35/2018] this Court has held that section 106 of the Evidence Act does not relieve the prosecution of its burden u/s. 101of the Evidence Act to prove the charge beyond all reasonable doubt. It is only when the prosecution succeeds in prima facie establishing the charge that the inmates of the house in which the crime was committed would have a duty to explain the circumstances under which the victim had suffered injury or death and the failure on the part of the accused to offer reasonable explanation would be an additional link in the chain of circumstances proved against the accused. Section 106 of the Evidence Act, therefore, cannot be pressed into service to convict the accused when the prosecution has failed to establish the circumstances so as to connect the accused to the commissioning of a crime. Moreover, we find that the materials on record does offer some explanation as to the circumstances under which the deceased had suffered death. The ejahar itself mentions that there was dacoity in the house in that night and it is the dacoits who had inflicted injuries on the deceased and the informant herself has suffered injuries. Such version flowing from the ejahar has not only been supported by the PW-6 but it has remained undisturbed during the course of the trial. Under the circumstances, we are of the view that the learned trial Court was not correct in convicting the appellants solely by placing reliance on section 106 of the Indian Evidence Act. 23. In view of the foregoing discussion, we are of the considered opinion that the conviction of the appellants is not sustainable on the basis of the evidence brought on record. 24. The impugned judgement and order dated 25/09/2018 is, therefore, set aside. The appellants are hereby acquitted of the murder charge brought against them under Section 302/34 IPC. The appeal stands allowed. Send back the LCR.