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2022 DIGILAW 891 (CAL)

Nima Lama v. State Of West Bengal

2022-06-22

ANANDA KUMAR MUKHERJEE

body2022
JUDGMENT Ananda Kumar Mukherjee, J. - The appellants have assailed the impugned judgment and order dated 19.6.2009 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Siliguri passed in Sessions Case No. 6 of 2003 corresponding to Sessions Trial No. 2 of 2006, wherein the appellants were convicted under Section 304 Part II/34 of the IPC and sentenced to rigorous imprisonment for six years each. Charge was framed against the accused persons under Section 304/34 of the IPC and they were called upon to answer the following charge: 'that you, two along with absconding accused Bal Bahadur in furtherance of common intention on or about 19.3.2003 at about 21-00 hrs in the house of you. accused Nima Lama committed culpable homicide not amounting to murder by assaulting and causing the death of Sante Biswakarma'. 2. The accused/appellants pleaded not guilty to the charge and claimed to be tried. 3. In order to prove the aforesaid charge, prosecution examined 12 witnesses and produced several documents as exhibits as well as material exhibits. The defence case of the appellants is that they have been falsely implicated in this case and they are innocent. 4. Mr. Himangshu De, learned Senior Advocate appearing for the appellants argued that motive assumes great importance in cases of circumstantial evidence. This is a case based on circumstantial evidence but prosecution could not prove any motive on the part of the appellants to commit the crime. It is argued that out of 12 witnesses examined, the prosecution case rests mainly on the evidence of 4 witnesses, i.e. P.W. 4, Sitala Biswakarma, the wife of the deceased, P.W.5, Lalita Lama, sister of P.W. 4, P.W. 6, Prakash Lama, the brother of P.W. 4 and P.W. 8, Budhay Biswakarma, the brother of the deceased but they have not adduced any evidence implicating the accused appellants. 5. The salient point of arguments advanced by learned advocate for the appellants is that the appellants have been convicted in this case on the basis of suspicion. Referring to a decision in the case of Nithiya vs. State Rep By Inspector of Police: (2017) 1 C.CR.LR (SC) 13 (paragraphs 12 and 13), Mr. De submitted that it is trite in a criminal trial that suspicion however grave cannot substitute proof and duty of the Court is to ensure that mere conjectures or suspicion do not take place of legal proof. De submitted that it is trite in a criminal trial that suspicion however grave cannot substitute proof and duty of the Court is to ensure that mere conjectures or suspicion do not take place of legal proof. It is further argued that in a case of circumstantial evidence, as the present one, when on the basis of facts, two views are possible on the evidence on record, one pointing to the guilt of the accused and the other to his innocence, the accused is entitled to have the benefit of one which is favourable to him. In that view of the matter, the guilt of the accused has not been proved beyond reasonable doubt and accused should get the benefit. The third facet of argument advanced for the appellants is that the circumstances of accused last seen together with deceased does not itself lead to any inference that it was the accused who committed the crime. There must be some more evidence to convincingly establish the connectivity between the accused and the offence. To reinforce this argument, learned advocate has relied upon the decision in the case of Kanhaiya Lal vs. State of Rajasthan; (2014) 2 SCC (Cri) 413. 6. It is strenuously argued by learned advocate for the appellants that the learned Trial Court has based its finding on the axiom that the offence committed was within the special knowledge of two accused persons as they were present. Therefore, the burden sifted upon the accused under Section 106 of the Indian Evidence Act. Learned advocate argued that Section 106 of the Indian Evidence Act lays down the generic rule that a person having special knowledge must prove the same. Relying upon the judgment of the Hon'ble Supreme Court, in the case of Shambu Nath Mehra vs. State of Ajmer (1956) SCR 199, he submitted that the Hon'ble Court has laid down the general rule that in a criminal case, the burden of proved is on the prosecution and section 106 is certainly not intended to relieve it of its duty. The contrary is that it is not designed to make such an exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish the facts which are specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The contrary is that it is not designed to make such an exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish the facts which are specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' means facts which are pre-eminently or exceptionally within his knowledge. Learned advocate for the appellants relying on the evidence on record submitted that on the fateful day, i.e. 19.3.2003, the alleged incident occurred at around 9-00 p.m. at a place which was accessible through all roads passing through that area and it was an open place, said to be the courtyard of the accused appellants. 7. Referring to the evidence of P.W. 4, Sitala Biswakarma, it is submitted that she received an information from the wife of accused Nima Lama that her husband was lying in a senseless condition at their courtyard. On hearing such news, P.W. 4 along with her sister, Lalita Lama, P.W. 5 and brother Prakash Lama, P.W. 6 went to the house of accused Nima Lama and found that her husband was lying senseless and he was held by accused Bal Bahadur Tamang and accused Nima Lama was present there along with another accused Dorjee Tamang, who fled away on seeing P.W. 4. She also noticed that blood was oozing out from the mouth and nose of her husband. He took the injured person to Gulma Tea Estate Hospital and from there shifted to North Bengal Medical College & Hospital where he died on 20.3.2003, at 11-00 p.m. In cross-examination, P.W. 4 stated that Nima Lama is her neighbour and he has good reputation in the locality. The witness also deposed that on the day of 'Holi' drinks are taken in the locality by public. Learned advocate submitted that nowhere from her evidence it would appear that Nima Lama or Dorjee Tamang were involved. 8. Referring to the evidence of Lalita Lama, P.W. 5, it is argued that she accompanied P.W. 4 to the house of Nima Lama and found the husband of P.W 4 was lying in the courtyard of the house in senseless condition with bleeding injuries and saw Nima Lama was standing there with Bal Bahadur Tamang. 8. Referring to the evidence of Lalita Lama, P.W. 5, it is argued that she accompanied P.W. 4 to the house of Nima Lama and found the husband of P.W 4 was lying in the courtyard of the house in senseless condition with bleeding injuries and saw Nima Lama was standing there with Bal Bahadur Tamang. P.W. 5 stated that she questioned Nima Lama as to why they assaulted the husband of P.W. 4 and at this Bal Bahadur Tamang assaulted her with a lathi. She also found Dorjee Tamang, but he fled away. Except such statements, there is no material evidence to suggest that the accused persons are involved in the alleged offence of assault. P.W. 6, Prakash Lama, the brother of P.W. 4 stated that her sister Lalita Lama called her and informed him that Santey Biswakarma was lying in bleeding condition at the house of Nima Lama. On hearing this, he rushed to the house of the accused along with Lalita Lama and found accused Nima Lama and Bal Bahadur Tamang and came to know that Dorjee Tamang had already fled away. In cross-examination P.W. 6 stated that there are three intervening houses between the house of Santey Biswakarma and Nima Lama. It was the day of 'Holi'. He also deposed that he has no knowledge as to whether Santey Biswakarma had the habit of taking liquor. He also stated that some other persons assembled there but he did not see accused Dorjee Tamang to flee. It is, therefore, evident from the deposition of P.W. 6 that he did not see the occurrence nor did he specify the nature of involvement of the accused person in the alleged offence. 9. Learned advocate for the appellants laid reliance upon the evidence adduced by P.W. 8, Budhay Biswakarma, wherein he stated that he heard from his relatives that Sante Biswakarma was lying in a precarious condition in the house of Nima Lama and he had been assaulted by Bal Bahadur Tamang, Dorjee Tamang, Nima Lama. The witness identified all the accused persons in Court. In cross-examination the witness stated that he did not see the alleged assault and that the two accused persons have been falsely implicated in this case. 10. It is the contention of the appellants that P.W.8 was not declared hostile by prosecution. Therefore, the evidence of P.W. 8 is binding on the prosecution. In cross-examination the witness stated that he did not see the alleged assault and that the two accused persons have been falsely implicated in this case. 10. It is the contention of the appellants that P.W.8 was not declared hostile by prosecution. Therefore, the evidence of P.W. 8 is binding on the prosecution. In support of his argument learned advocate relied upon the decision in the case of Raja Ram Vs. State of Rajasthan; (2005) 5 SCC 272 at (paragraph 9). 11. The evidence of Dr. Saibal Gupta P.W 11, Autopsy Surgeon, Professor of Head of the Department of FSM, North Bengal Medical College disclose that on post mortem examining Sante Biswakarma in connection with Matigara P.S. Case No. U.D. Case No.123 of 2003 he found the following injuries: (I) Lacerated wond 4' X 3' X bone deep over left side frontal region. Extra vascated clotting of blood was found all over the scalp with subdural hemorrhage. (II) Laceraed wound 3' X 3' X bone deep over front of chest with extravasation clotted blood on both side chest wall - fracture ribs 3rd to 7th right side and 4th to 8th left side Contusions of lungs. (III) On opening abdominal cavity there was raptured intestine, ascending colon and liquid and clotted blood was fond in the pelvic cavity. 12. Doctor found all these injuries antimortem and homicidal in nature. In cross-examination the witness deposed that there was nothing in his report whether the person was intoxicated or not. He also denied that deceased died due to fall as a result of high intoxication. 13. Harping upon the statement of the doctor that he was unable to state how many persons had assaulted the injured, learned advocate for the appellant submitted that in view of such evidence it cannot be held by the Trial Court that the accused persons assaulted the victim with common intention. Therefore, the charge under Section 304/34 of the Indian Penal Code is not tenable. It is also asserted that in order to establish a charge under Section 34 of the IPC, the prosecution has to prove some overt act committed by the accused persons. In the present case, the prosecution has not adduced any evidence in support of any overact on the part of the accused persons. 14. It is also asserted that in order to establish a charge under Section 34 of the IPC, the prosecution has to prove some overt act committed by the accused persons. In the present case, the prosecution has not adduced any evidence in support of any overact on the part of the accused persons. 14. It is argued that learned Trial Judge has laid over emphasis upon two aspects, that is the victim was last seen together with the accused appellants and when the victim was seen lying in a pool of blood in the courtyard of appellant Nima Lama, the accused appellants were found present along with the absconding accused. Therefore, the burden of proof has been shifted upon the accused persons under section 106 of the Evidence Act to dislodge the charge levelled against them by adducing evidence in respect of facts within the special knowledge of the accused persons, as to the mode and manner in which injuries were sustained by the victim. It is argued that prosecution has miserably failed to produce any evidence regarding involvement of the accused persons in the alleged offence. Since this is a case of circumstantial evidence it is necessary for the prosecution to establish a complete chain of evidence which unerringly points to the guilt of the appellants and mere suspicion how so ever high cannot take the place of proof, which can only be based upon legally admissible evidence. Learned advocate for the appellants urged that the judgment of conviction and sentenced passed against the appellants is liable to be set aside and they be acquitted from this case. 15. Learned advocate for the State in reply argued that the incident occurred at about 9:00 P.M on 19.3.2003 at the courtyard of the house of Nima Lama at Junglikotha, P.S. Matigara. It was the evening of 'Holi' and the accused person along with the deceased consumed liquor and a fight ensued between them in which the accused persons severely assaulted Santey Biswakarma which ultimately resulted in his death at North Bengal Medical College & Hospital in the night of 20.3.2003. It is submitted on behalf of the state that the evidence on record disclose that the family members were engaged in attending the victim for his medical treatment. It is submitted on behalf of the state that the evidence on record disclose that the family members were engaged in attending the victim for his medical treatment. It is only after the death of Santey Biswakarma they lodged an FIR at Matigara Police Station on 21.3.2003 under section 304/34 of IPC. In the FIR at the earliest point of time the de-facto complainant, the wife of the deceased, named Nima Lama, Dorjey Tamang and Bal Bahadur Tamang as the assailants of Santey Biswakarma. The reasoned behind delay in lodging was the FIR has been well explained and the accused appellants are all FIR named accused since the inception of this case. It is argued that no suggestion was put to the witnesses that there was any inimical relationship between the family of the deceased with the accused persons, therefore the question of false implication of the appellants does not arise in this case. 16. Learned advocate for the State in support of his argument took me through the evidence of the prosecution witnesses. PW-1, Arjun Biswakarma, the scribe of the complaint deposed that on 21.3.2003 at 11:00 A.M he wrote the complaint and submitted at Sukna Police out Post on the same day. It appears from the evidence of PW-1 that the complaint was prepared by him on the instruction of Sitala Biswakarma (PW-4) who narrated the incident to PW-1. It is deposed by him that the complainant disclosed that on 19.3.2003, she heard that Nima Lama, Dorjey Tamang and Bal Bahadur Tamang were assaulting her husband. On receiving such news she went to the house of Nima Lama and found her husband was lying in bleeding condition at the courtyard of that house. The complaint has been marked as Exhibit 1. In cross-examination PW-1 stated that he has no personal knowledge about the occurrence. 17. PW-2, Amiya Basak, a Pharmacist at Gulma Tea Estate Hospital deposed that on 19.3.2003 at about 10:00 P.M he was called by the chowkidar of the hospital and he attended Santey Biswakarma who had marks of bleeding injury. The evidence of PW-2 lends support to the occurrence and also goes to establish that Santey Biswakarma had sustained the injury on 19.3.2003. 18. PW-3, Subir Kumar Paul was the Recording Officer. He received the written complaint. PW-3 has no personal knowledge about the occurrence. 19. The evidence of PW-2 lends support to the occurrence and also goes to establish that Santey Biswakarma had sustained the injury on 19.3.2003. 18. PW-3, Subir Kumar Paul was the Recording Officer. He received the written complaint. PW-3 has no personal knowledge about the occurrence. 19. Learned advocate for the State argued that the prosecution case mainly rests upon the evidence of PW-4, PW-5, PW-6 and PW-8. Referring to the evidence on PW-4, it is argued that on that night the wife of accused Nima Lama came to her house and inform that Santey Biswakarma was lying senseless on their courtyard. Receiving the news PW-4, her sister Lalita (PW- 5) and brother Prakash (PW-6) rushed to the house of accused Nima Lama. PW-4 deposed that she saw her husband lying in senseless condition and he was held by accused Bal Bahadur Tamang at that time. PW-4 also saw Nima Lama present and other accused Dorjey Tamang fled away on seeing them. She also deposed that blood was oozing out from the mouth and nose of her husband. They lifted Santey Biswakarma and took him to Gulma Hospital and then sifted him to North Bengal Medical College & Hospital that night. She also deposed that after the death of her husband on the following night at 11:00 P.M, she lodged a written complaint prepared by Arjun Biswakarma on her statement. Learned advocate for the respondent argued that the evidence of PW-4 convincingly establishes the fact that the accused persons were present at the place of occurrence and the victim was found in a unconscious state in bleeding condition. Reliance was also placed on the evidence of Lalita Lama who deposed that on hearing hue and cry raised by PW-4 at her house, all the inmates went to the house of PW-4 and found her coming back from the house of Nima Lama asking them to go to the house of Nima Lama where her husband was lying senseless with bleeding injuries. 20. PW-5, stated that when she reached the house of Nima Lama, she found the husband of PW-4 lying in the courtyard with bleeding injuries and Nima Lama was standing there along with Bal Bahadur. She asked Nima as to why they assaulted the husband of PW-4 at this Bal Bahadur assaulted Lalita Lama with a 'lathi'. She also stated that accused Dorjey Tamang was present but he fled away. She asked Nima as to why they assaulted the husband of PW-4 at this Bal Bahadur assaulted Lalita Lama with a 'lathi'. She also stated that accused Dorjey Tamang was present but he fled away. In course of cross-examination PW-5 stated that the victim use to take liquor in small quantity she also stated that she did not witness the occurrence and she reiterated that Bal Bahadur assaulted her. 21. Prakash Lama the brother of PW-4 has been examined as PW-6. Learned advocate for the State drew my notice to the evidence of PW-6 were he deposed that on 19.3.2003 at night he was called by Lalita Lama from his house and informed that Santey Biswakarma was lying in a bleeding condition. PW-6 rushed to the house of accused Nima Lama and found accused Nima Lama and Bal Bahadur were in the house and heard that other accused Dorjey Tamang then fled away. The witness further stated that he along with Chandray Bahadur Biswakarma and Puran Cheetri took Santey Biswakarma to Gulma Tea Estate Hospital and from there he was refer to North Bengal Medical College & Hospital on that night itself. PW-6 identified Nima Lama and Dorjey Tamang in court. He also deposed that the accused person died on being assaulted by Nima Lama, Bal Bahadur Tamang and Dorjey Tamang. In cross-examination PW-6 deposed that he was unable to state how long Santey Biswakarma was outside his house. He further deposed that he did not see Dorjey Tamang to flee away. Sum totality of the evidence of PW-6 gives out that he saw Nima Lama and Bal Bahadur Tamang in the house of Nima Lama at the time he rushed to see Santey Biswakarma lying in the house of Nima Lama. It is argued on behalf of the state that the evidence of PW-4, PW-5 and PW-6 are consistent so far as the victim was found lying in injured and bleeding condition in the courtyard of Nima Lama and furthermore accused Nima Lama and Bal Bahadur Tamang were present there. PW-4 stated that Dorjey Tamang fled away on seeing them PW-5 and PW-6 deposed that Dorjey Tamang had already fled away. 22. Learned advocate for the State heavily relied upon the evidence of PW-8 Budhay Biswakarma who deposed that he heard the Santey Biswakarma was assaulted by accused Bal Bahadur Tamang, Dorjey Tamang and Nima Lama. PW-4 stated that Dorjey Tamang fled away on seeing them PW-5 and PW-6 deposed that Dorjey Tamang had already fled away. 22. Learned advocate for the State heavily relied upon the evidence of PW-8 Budhay Biswakarma who deposed that he heard the Santey Biswakarma was assaulted by accused Bal Bahadur Tamang, Dorjey Tamang and Nima Lama. As a result of a fight he succumb to his injuries at the hospital. PW-8, in cross-examination stated that he stated to the I.O that on Wednesday he along with Santey, Nima, Dorjey and Bal Bahadur took liquor at the house of Nima Lama but he did not see any incident of assault. It is argued that the victim was seen for the last time along with the accused persons and the absconding accused Bal Bahadur. Therefore, a duty is cast upon the accused persons under section 106 of the Indian Evidence Act to dislodge the charge levelled against them by proving as to how and under what circumstances the victim sustained such grave injuries which resulted in his death. 23. Referring to the impugned judgment it is argued that learned court found overwhelming evidence that a quarrel had taken place in the house of accused Nima Lama on 19.3.2003 at night when the 'Holi' festival was being celebrated. At that time the accused persons along with the absconding accused assaulted Santey Biswakarma causing serious injuries and he later succumbed to his injuries on 20.3.2003. It is also argued that learned Trial Court has rightly held that in absence of any explanation, the only possible inference which would arise from the circumstances is that the accused persons committed the offence and that the burden of proof under section 106 of the Evidence Act is upon the accused persons to establish the contrary, to relieve themselves from the charge as they had special knowledge about the occurrence. 24. According to the learned advocate for the State the judgment passed in this case is consistent with the evidence on record and there is no infirmity in the impugned judgment calling for any interference. 25. The only point for consideration is whether conviction and sentenced of the appellants are sustainable on the basis of evidence on record. 24. According to the learned advocate for the State the judgment passed in this case is consistent with the evidence on record and there is no infirmity in the impugned judgment calling for any interference. 25. The only point for consideration is whether conviction and sentenced of the appellants are sustainable on the basis of evidence on record. Having considered the argument advanced by learned advocates for both parties as well as the evidence on record and the impugned judgment, it is found that the following facts are undisputed and well proved. i) on the night of 19.3.2003 at about 9:00 P.M and incident occurred in which Santey Biswakarma, suffered bleeding injuries on his person and had fallen unconscious. ii) The uncontroverted evidence of PW-4 has proved that on that night the wife of accused Nima Lama came to her house and inform that Santey Biswakarma was lying senseless at their courtyard. PW-4 proceeded to the courtyard and found her husband was lying senseless and was held by accused Bal Bahadur Tamang. Accused Nima Lama was also present there. iii) PW-5 and PW-6 on receiving information also went to the house of Nima Lama and saw that Santey Biswakarma the husband of PW-4 was lying there with bleeding injuries. Both this witnesses also found Bal Bahadur Tamang and Nima Lama at that place. iv) When PW-5 and PW-6 reached the house of Nima Lama they did not see co-accused Dorjey Tamang and they deposed that Dorjey Tamang had fled away. v) The injured person was taken to Gulma Tea Estate Hospital for medical treatment and thereafter to North Bengal Medical College & Hospital where he died at about 11:00 P.M on 20.3.2003. vi) PW-11 Dr. Saibal Gupta deposed that all the injuries found on the deceased person were anti mortem and homicidal in nature. He also stated in cross examination that there is no noting in his report whether the person was intoxicated or not. 26. From the testimony of PW-4, PW-5 and PW-6 it is gathered that Santey Biswakarma was found lying at the courtyard of the house of accused Nima Lama and at the relevant time when the witnesses reached the place they found Nima Lama and Bal Bahadur present there. It transpires from their testimony that co-accused Dorjey Tamang had fled away. 26. From the testimony of PW-4, PW-5 and PW-6 it is gathered that Santey Biswakarma was found lying at the courtyard of the house of accused Nima Lama and at the relevant time when the witnesses reached the place they found Nima Lama and Bal Bahadur present there. It transpires from their testimony that co-accused Dorjey Tamang had fled away. PW-4 deposed that she had seen Dorjey Tamang flee from the place but no other witness had seen him there. Accused Nima Lama, Bal Bahadur and Dorjey Tamang did not try to extent any assistants to the injured person for his treatment nor did they lodged any complaint before the police between 19.3.2003 and 20.3.2003. The case was registered only on the basis of the complaint lodged by the wife of the deceased on 21.3.2003. This conduct of the accused persons brings out some incriminating circumstance against them. 27. On a close scrutiny of the evidence on record I do not find any statement which it can be held that the deceased was last seen together with the accused persons prior to his injuries. It is only after the victim was found in injured condition the accused persons were found to be present at that place. None of the witnesses have seen the accused persons assaulting the victim. Therefore, the theory of 'last seen together' cannot be applied against the accused persons for harnessing them with the charge of assaulting the victim. Even, if for his argument's shake the victim was last seen together with the accused persons before the incident, in order to attract the liability against the accused persons for such offence, prosecution has to proof something more to support that the accused persons had a motive to commit such offence. In the case of Kanhaiyalal Vs State of Rajasthan;(2004) 2 SCC (Cri) 413, it was held by the Hon'ble Court that, '12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.'............... '15. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.'............... '15. The theory of last seen- the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence, available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time.' Taking a clue from the aforesaid guiding principle laid down by the Hon'ble Supreme Court, I hold that the presence of the accused persons at the place where the injured was lying is not sufficient to give rise to a presumption against the accused persons for committing the crime. 28. Learned Trial Court has held that there is overwhelming evidence on record that there has been a quarrel at the house of Nima Lama on 19.3.2003 at night between the deceased and the accused persons while they were celebrating 'Holi' festival. On close reading of the evidence on record. I do not find any such evidence adduce by any of the prosecution witnesses. PW-4 was the first witness to reach the place of occurrence. She was followed by her sister and brother. From the evidence on record it appears that the PW-4 was informed by the wife of accused Nima Lama that the husband of PW-4 was lying in senseless condition. There is no whisper by this witness that she heard any quarrel irrupting at the place of occurrence between the deceased and any of the accused persons. Learned Trial Court observed that the accused persons are bound to offer explanation as to how the occurrence have taken place and the only possible inference according to him was that the accused persons participated in the crime. Learned trial judge found that if any contrary stand was to be taken, the accused persons had to discharge the burden of proof under section 106 of the Evidence Act. On this point learned defence advocate has relied upon the decisions in the case of Shambu Nath Mehra Vs. Learned trial judge found that if any contrary stand was to be taken, the accused persons had to discharge the burden of proof under section 106 of the Evidence Act. On this point learned defence advocate has relied upon the decisions in the case of Shambu Nath Mehra Vs. State of Ajmer, which was also relied upon by a Hon'ble Division Bench of this court in the case of Ruplal Mahato and Others Vs. State of West Bengal; (2017) 1 C Cr. LR (Cal) 629, In Shambu Nath Mehra Vs. State of Ajmer 1956 SCR 199 , the legal principle relating to burden of proof under section 106 of the Evidence Act is observed as follows: 'This 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 facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially' stresses that. It means facts that are preeminently or exceptionally within his knowledge.' 29. On the basis of the principle laid down in the above decisions, it is clear that the prosecution is duty bound to proof the charge against the accused person. It is only after such case is established, the accused person having special knowledge can dislodge such charge under section 106 of the Evidence Act. The entire onus of proving himself innocent cannot be shifted upon the accused persons under section 106 of IPC as it would be contrary to the inquisitorial system. 30. The Miranda Rights which emerged after the land mark US Supreme Court case of Miranda Vs. Arizona, gave rise to the principle of criminal jurisprudent that the accused has right to remain silent. This principle has been engrafted in section 313 of the Cr. P.C. Bearing this principle in mind and revisiting the scope of the provisions under section 106 of the Indian Evidence Act, it would be clear that the burden of proof in a criminal case lies upon the prosecution. This principle has been engrafted in section 313 of the Cr. P.C. Bearing this principle in mind and revisiting the scope of the provisions under section 106 of the Indian Evidence Act, it would be clear that the burden of proof in a criminal case lies upon the prosecution. Only upon establishing the incriminating materials against the accused person, the onus would shift upon the accused under section 106 to explain his position for the purpose of reliving him from such charge. 31. In the instant case I do not find any incriminating material against the appellants only due to the fact that they were found present at the courtyard of the house of one of the appellants Nima Lama. 32. On a perusal of the evidence it appears that the Investigating Officer prepared a sketch map of the place of occurrence along with an index which has been compositely marked as Exhibit 6. The place of occurrence marked as 'A' is surrounded by four houses belonging the accused of Nima Lama. It is situated adjacent to Pucca Road marked as L, L1 and L3. No evidence has been led by prosecution to establish that the place of occurrence is an enclosed courtyard within the homestead of accused Nima Lama. The place of occurrence were the injured person was found lying was a open space accessible to the public. The incident occurred at about 9:00 P.M. There is no evidence to suggest any incriminating role of the accused appellants in the alleged incident. It cannot be ruled out that any other person may be involved in this occurrence. The Investing Officer has not recovered any weapon of assault though the injuries were due to use of blunt weapon. The evidence of PW-8, Budhay Biswakarma in his evidence admitted that he stated to the I.O that Santey Lima, Bal Bahadur and Dorjey took liquor at the house of Nima Lama but he did not see any incident. He further deposed that the two accused persons have been falsely implicated in the case. This evidence of PW-8 is of no consequence at all as he has not seen any occurrence and it is his opinionated statement that accused has been falsely implicated. 33. The case is based upon circumstantial evidence. He further deposed that the two accused persons have been falsely implicated in the case. This evidence of PW-8 is of no consequence at all as he has not seen any occurrence and it is his opinionated statement that accused has been falsely implicated. 33. The case is based upon circumstantial evidence. On close consideration of the evidence on record I find that the prosecution evidence is fragile and it does not complete the chain, pointing to the guilt of the appellants. The prosecution case only raises suspicion against the accused persons. Suspicion however strong cannot take the place of proof. In order to establish the guilt of the accused persons persecution has to adduce evidence of clinching nature. 34. In the instant case there is no real evidence against the accused persons which can prove the charge against the accused persons. I, therefore find and hold that the impugned judgment passed by learned Trial Court cannot be sustained on the basis of such scanty evidence on record. The impugned judgment of conviction and sentenced passed by learned trial Judge is therefore set aside. The appeal is allowed. The appellants are acquitted from the charge under section 304/34 of IPC and discharged from their bail bonds. 35. Interim order if any stands vacated. All connected applications are disposed of. 36. Let the Lower Court Record along with a copy of this Judgment be sent down to Learned Additional Sessions Judge, 1st Fast Track Court, Siliguri for information. 37. Urgent Photostat certified copy of this judgment, be supplied to the parties if applied for, maintaining all formalities.