JUDGMENT Suman Shyam, J. - In this appeal, the judgement and order dated 12/07/2018 passed by the learned Sessions Judge, Golaghat, in connection with Sessions Case No. 186/2014 convicting the 3 (three) appellants under Section 302/34 of the IPC and sentencing each of them to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each, in default, to undergo simple imprisonment for another one month, has been assailed. 2. We have heard Mr. A.M. Bora, learned senior counsel assisted by Mr. M. Mahanta, learned counsel for the appellants. We have also heard Mr. M. Phukan, learned APP, Assam, appearing for the State. 3. The prosecution case, in a nutshell, as gathered from the materials available on record, is as under :- The deceased Priyanka Chutia got married to the appellant no.1 Sri Baba Saikia sometime in the month of May-June, 2013. On 22/09/2013, at about 12 noon, the family members of the deceased were informed over phone that their daughter had committed suicide. People of the village immediately gathered at the scene and saw the dead body. The father of the deceased Sri Moina Chutia had lodged an ejahar on 23/09/2013 with the Officer-in-Charge of Merapani Police Station informing about the said incident. In the ejahar, it was mentioned that it was suspected that the husband, father-in-law and mother-in-law of the deceased are behind the incident. 4. Based on the ejahar dated 23/09/2013, Merapani Police Station case No. 298/2013 was registered under Section 302/34 of the IPC and the Officer-in-Charge himself took up the case for investigation. On completion of investigation, charge sheet was submitted against the three accused persons i.e. the husband, father-in-law and mother-in-law of the deceased, who are the appellants in this case. Since the accused persons had pleaded not guilty, the matter was sent up for trial. 5. There is no eye witness in this case. The prosecution case is based on circumstantial evidence. The prosecution has examined 11 (eleven) witnesses to bring home the charge. 6. The informant in this case Sri Moina Chutia, who is the father of the deceased, was examined as PW-1.This witness has deposed that on receipt of information that his daughter had committed suicide, he had arrived at the place and found her daughter hanging from the shed adjacent to the house of her in-laws with a Chadar. 6. The informant in this case Sri Moina Chutia, who is the father of the deceased, was examined as PW-1.This witness has deposed that on receipt of information that his daughter had committed suicide, he had arrived at the place and found her daughter hanging from the shed adjacent to the house of her in-laws with a Chadar. He saw the dead body and thereafter lodged an ejahar suspecting that the three accused persons had killed his daughter. Suspecting that the three accused persons had killed his daughter, he had lodged the ejahar Ext-1 and Ext-1(1) was his signature. 7. Pw-2 Smt. Sabitri Chutia is the mother of the victim. According to the PW-2, on receipt of information that her daughter had committed suicide, she became senseless and fell down on the ground. Later on, when her husband returned home, then she accompanied him and went to the house of the accused. Upon arriving there, she saw the dead body of Priyanka wrapped in a mat. She later on came to know from the people that the accused persons had killed her daughter and then kept the body hanging from the shed. 8. Pw-3 Sri Biki Saikia is a neighbour of the deceased. PW-4 Smt. Poly Chutia is known to the informant and the accused. All these witnesses had arrived at the place of occurrence after receiving the information and saw the dead body. PW-6 Smt. Ajanta Barua had heard from her sister-in-law that the victim has been killed. PW-7 Smt. Renu Borah has deposed that the family members of the deceased had informed her that Priyanka has been killed by her mother-in-law and husband by hanging her. Then she went to the house of the accused and saw the deceased hanging from a shed adjacent to their house. 9. Pw-8 Mrs. Lulu Mech is also a neighbour and he has deposed that on the day of the incident his neighbour came and informed him that Priyanka's father-in-law, mother-in- law and husband has killed her. Then he went to their house and saw the dead body. PW-10 Padmeswar Tamuli is another neighbour of the deceased and he has also deposed on similar lines. 10. Sri Padma Sonowal, the I.O. in this case, was examined as the PW-11. Then he went to their house and saw the dead body. PW-10 Padmeswar Tamuli is another neighbour of the deceased and he has also deposed on similar lines. 10. Sri Padma Sonowal, the I.O. in this case, was examined as the PW-11. The I.O has deposed that he had prepared inquest report, had sent the body for post mortem examination and after recording the statement of the witnesses, he had submitted charge sheet. During his cross examination, the I.O. has also proved a few contradictions in the testimony of PWs 1 and 2 and some other witnesses. 11. Pw-9 Dr. Rekha Barua had conducted the post mortem examination on the dead body of the deceased. The post mortem report Ext-2 mentioned about the following features in the dead body :- "I. EXTRANAL APPEARANCE 1. Condition of subject stout amaciated, decomposed etc.: A dead body of a healthy young female c swarthy complexion with long black hairs with blood oozing out from nostril. Rigor mortis (+). 2. Wounds-position, and character : - A dead body of a young female with blood seen coming out from nostrils with multiple abrasion seen over face. - A transverse incomplete ligature mark seen at the back of neck from middle portion of the left side of neck to the back of neck (middle portion). - 3 cm x 3 cm depressed area resembling the size of the thumb impression seen over the Rt side of caroted vessel along with multiple bruised area seen." In the column of detailed description of the injury the following remarks have been made :- " - A dead body of a young female of around 19 years with multiple abrasion seen over face with blood seen coming out from nostrils. - A transverse semi-circular ligature mark seen over the back of neck extending from middle portion of neck from Lt side to the middle portion of back. - 3 cm x 3 cm depressed area resembling the size of the thumb, seen over the Rt side of carotid vessels along c multiple bruises." The doctor had opined that the cause of death is due to asphyxia as a result of strangulation sustained by the deceased. 12. By referring to the evidence available on record, Mr. Bora, learned senior counsel for the appellant submits that the post mortem report does not indicate that the victim had suffered a homicidal death. 12. By referring to the evidence available on record, Mr. Bora, learned senior counsel for the appellant submits that the post mortem report does not indicate that the victim had suffered a homicidal death. According to Mr. Bora, the existence of a transverse semi-circular ligature mark from base of the neck extending from middle portion of the neck to left side is sufficient pointer of the fact that the victim had committed suicide. In support of his above argument, Mr. Bora has referred to a Textbook of Medical Jurisprudence and Toxicology by Modi to argue that strangulation can be suicidal, homicidal or accidental. In this case, there is no medical evidence to show that strangulation suffered by the victim was homicidal in nature. 13. Mr. Bora also submits that in a case based on circumstantial evidence, it is imperative for the prosecution side to prove the motive beyond all reasonable doubt, which burden they have failed to discharge in this case. To sum up his argument, Mr. Bora has argued that it is a case of no evidence and, therefore, all the three accused persons are liable to be acquitted. In support of his above argument, Mr. Bora has relied upon a recent unreported decision of the Hon'ble Supreme Court rendered in the case of Shivaji Chintappa Patil Vs. State of Maharashtra (Criminal Appeal No. 1348/2013). 14. Mr. M. Phukan, learned APP, Assam, has argued that the conviction of the appellants is based on the post mortem report but he has fairly submitted that the said report does not clearly indicate as to whether strangulation was suicidal or homicidal in nature. 15. From a reading of the impugned judgement and order dated 12/07/2018, we find that the learned trial Court was of the view that the expression "asphyxia as a result of strangulation" appearing in Ext.2 would lead to only one conclusion that the death was not due to hanging. It was further observed that the incident occurred in the matrimonial home of the deceased and, therefore, there was a burden cast upon the accused persons under Section 106 of the Evidence Act to explain as to the circumstances under which the deceased had died. Since the accused had failed to explain such circumstances, the same would form an additional chain in the circumstances leading to the conviction of the accused. 16. Since the accused had failed to explain such circumstances, the same would form an additional chain in the circumstances leading to the conviction of the accused. 16. There is no dispute in this case that the prosecution is relying upon the post mortem report Ext- 2 to prove that the deceased had suffered a homicidal death. However, from a careful examination of the post mortem report Ext - 2, we find that the said report does not specifically say so. As a matter of fact, many features which are present in the case of a homicidal strangulation have not been noticed in the dead body during post mortem examination. 17. In Chapter -20 of Modi's Medical Jurisprudence and Toxicology, 26 th Edition, we find a list of features usually noticeable in case of homicidal strangulation, which are as follows :- "1. Mostly homicidal. 2. Face- Congested, livid and marked with petechiae. 3. Saliva-No such dribbling. 4. Neck-Not stretched and elongated. 5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect). 6. Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 7. Abrasions and ecchymoses round about the edges of the ligature mark, common. 8. Subcutaneous tissues under the mark-Ecchymosed. 9. Injury to the muscles of the neck-common. 10. Carotid arteries, internal coats ordinarily ruptured. 11. Fracture of the larynx trachea and hyoid bone. 12. Fracture-dislocation of the cervical vertebrae-Rare. 13. Scratches, abrasions, fingernail marks and bruises on the face, neck and other parts of the body- Usually present. 14. Sometimes evidence of sexual assault. 15. Emphysematous bullae on the surface of the lungs-Not present." 18. From a careful examination of the post mortem report (Ext-2) we do not find any of the above features present in Ext-2. Rather, the post mortem report contains features such as oblique, non-continuous ligature marks placed high up in the neck, which, according to Modi's Volume, are synonymous with hanging. The post-mortem report (Ext-2) does not indicate that homicidal strangulation had lead to the death of the deceased. Rather, we are of the view that Ext-2 does not rule out the possibility of the deceased dying a suicidal death due to hanging. The post-mortem report (Ext-2) does not indicate that homicidal strangulation had lead to the death of the deceased. Rather, we are of the view that Ext-2 does not rule out the possibility of the deceased dying a suicidal death due to hanging. As such, we are of the opinion that the prosecution has failed to establish by leading cogent evidence that the deceased had suffered a homicidal death. 19. Since we have already held that the prosecution has failed to prove that the deceased had suffered a homicidal death, embarking on an exercise to re-appreciate the evidence adduced by the other witnesses would be wholly inconsequential in this appeal. However, even on a cursory glance at the testimonies of the prosecution witnesses, we do not find cogent materials to establish the charge brought against the accused persons based on circumstantial evidence. We, therefore, find sufficient force in the submission of Mr. Bora that in this case there is no evidence to prove the murder charge against the accused persons. 20. We have also noticed that for convicting the accused, the learned trial court had shifted the burden under section 106 of the Evidence Act upon the accused persons . However, it must be remembered that question of evidential burden under section 106 of the Evidence Act would arise only if the prosecution succeeds in prima facie establishing the charge brought against the accused. In this case, as noticed above, the prosecution has failed to lead evidence to prima facie establish the charge brought against the accused persons. Under such circumstances, we are of the view that there was no burden, whatsoever, upon the accused persons under Section 106 of the Evidence Act to explain the circumstances leading to the death of the deceased. 21. For the reasons stated herein above, we are of the view that prosecution has failed to establish the charge brought against the accused persons. As such, the impugned order dated 12/07/2018 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 186/2014, stands interfered with. 22. Consequently, the conviction of all the appellants is set aside and they are hereby acquitted due to want to evidence against them. 23. The appeal is, accordingly, allowed. 24. We are informed that the appellant no.1 is in jail whereas, the appellant nos. 2 and 3 have been released on bail. 22. Consequently, the conviction of all the appellants is set aside and they are hereby acquitted due to want to evidence against them. 23. The appeal is, accordingly, allowed. 24. We are informed that the appellant no.1 is in jail whereas, the appellant nos. 2 and 3 have been released on bail. In view of the above, we direct that the appellant no. 1 Sri Baba Saikia @ Suraj be forthwith released from jail, if he is not wanted in connection with any other case. 25. The bail bond of the appellant nos. 2 and 3 i.e. Smt. Rumi Saikia and Sri Babul Saikia respectively, shall stand discharged. Send back the LCR.