The burden of proof lies with the prosecution, and suspicion cannot substitute legal proof in a criminal case.

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. 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 o