IMPORTANT POINT
In absence of common intention section 34 IPC cannot be invoked and none of the accused can be convicted.

ORDER :

1. The three accused-appellants who have been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life are in appeal against the order of confirmation of the said conviction and sentence made by the High Court in appeal.

2. The prosecution case, in short, is that PW-11 (Dipu Sarkar) was married to one Swarup Sarkar and was living in a common house-hold consisting, inter alia, of accused Arup Sarkar and Tapan Sarkar (brothers-in-law) and sister-in-law Binapani Sarkar (wife of Arup Sarkar).

3. According to prosecution on 05.08.1990, PW-11 left the house to go the village pond leaving her 2½ months baby in the custody of accused-Binapani Sarkar, wife of accused-Arup Sarkar.

4. She came back home after about 45 minutes and found the baby not in the cot where she had kept her. Her brothers-in-law and sister-in-law, the accused, Arup Sarkar, Tapan Sarkar and Binapani Sarkar, on being asked, gave evasive replies and in the course of a search it is the accused Tapan Sarkar who found the baby floating in the well. It is in these circumstances that a F.I.R. was lodged and on completion of the investigation made on the basis thereof the accused-appellants were charge-sheeted, tried and convicted for the offence of murder.

5. We have heard the learned counsels for the parties.

6. There is no eye-witness to the occurrence and the entirety of the evidence is circumstantial. The prosecution, undoubtedly, has succeeded in proving that the relationship within the family was not a happy one and PW-11 was continuously abused and shunned for giving birth to a female child. The prosecution witnesses 1, 2, 3, 4, 7 and 8, who were the neighbours have testified to the aforesaid effect. The prosecution has also succeeded in proving that it is the accused-appellants who alone were in the house at that relevant point of time when PW-11 had gone out leaving the baby behind. It has been further proved by the prosecution that the replies given by the accused-appellants to PW-11 regarding the whereabouts of baby were vague and evasive. Finally, the prosecution has also proved that the baby had died an unnatural death and the dead body was recovered from the well.

7. True, all the above are highly incriminating circumstances. The accused have also not offered any explanation with regard to the disappearance of the baby and recovery of the dead body from the well. However, in the present case the conviction of the accused-appellants is with the aid of Section 34 IPC. There is no specific or positive evidence showing any overt act on the part of any particular accused. It is in the aforesaid circumstances that the liability of the accused-appellants will have to be judged.

8. The circumstances proved and established against the accused and the evasive replies given by them, even if construed in the light of Section 106 of the Evidence Act, in our considered view, may not unerringly point to the guilt of the accused, particularly, in a situation where mother-in-law and father-in-law of PW-11, though available, have not been examined by the prosecution. Neither any convincing reasons have been brought on record by the prosecution for such non-examination. It is in the above circumstances that we have considered it necessary to examine as to whether the charge brought against the accused-appellants with the aid of Section 34 IPC can be held to be proved in the facts of the present case.

9. Apart from the evidence relating to the strained relations within the family; the handing over the baby to the custody of accused-Binapani Sarkar and the evasive replies given, there is no other evidence on record to enable the Court to infer the existence of a common intention of the accused-appellants to commit the crime.

10. The strained relations in the family and giving of evasive replies, by itself, cannot be considered to be a safe and sound basis to arrive at the required inference so as to attract the principle laid down in Section 34 IP