1. Conviction under Section 302/34 IPC for murder of an infant found in a well after being left in the custody of relatives. (Para 1 , 2 , 3 , 4 )
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2018 Supreme(SC) 621
SUPREME COURT OF INDIA
RANJAN GOGOI, R. BANUMATHI, JJ.
TAPAN SARKAR ETC. ETC. - APPELLANT
VERSUS
STATE OF WEST BENGAL - RESPONDENT
CRIMINAL APPEAL NO(S). 1142-1143 OF 2012
Decided on : 13-02-2018
Important Points
IMPORTANT POINT
In absence of common intention section 34 IPC cannot be invoked and none of the accused can be convicted.
In absence of common intention section 34 IPC cannot be invoked and none of the accused can be convicted.
Subject
Criminal Law - Murder
Act Referred
Headnote
Indian Penal Code, 1860 – Section 34 – Common intention – Strained relations in family and giving of evasive replies – Cannot attract section 34 – In absence of common intention none of the accused can be convicted – Appellants held entitled to benefit of doubt. (Para 10, 12)
Facts of the case:
The accused-appellants were convicted u/s 302/34 IPC and their conviction has been confirmed by the High Court.
Finding of the Court:
Common intention of the appellants was not established, hence they cannot be convicted with the aid of section 34.
Result: Appeals allowed.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellants : Mr. R.K. Gupta, Mr. B.P. Gupta, Mr. A.K. Singh, Mr. Shekhar Kumar, Adv
For the Respondents: Mr. Raja Chatterjee, Mr. Piyush Sachdev, Ms. Runa Bhuyan, Mr. Adeel Ahmed, Ms. Shikha Agarwal, Mr. Chanchal Kumar Ganguli, Adv
Advocate Appeared:
For the Appellants : Mr. R.K. Gupta, Mr. B.P. Gupta, Mr. A.K. Singh, Mr. Shekhar Kumar, Adv
For the Respondents: Mr. Raja Chatterjee, Mr. Piyush Sachdev, Ms. Runa Bhuyan, Mr. Adeel Ahmed, Ms. Shikha Agarwal, Mr. Chanchal Kumar Ganguli, Adv
Table of Contents
2. Dispute over whether circumstantial evidence and evasive replies are sufficient to establish common intention under Section 34 IPC for a murder conviction. (Para 5 , 7 )
3. Incriminating circumstantial evidence and evasive replies are insufficient to prove common intention without evidence of specific overt acts or tangible material. (Para 6 , 7 , 8 , 9 )
4. Strained family relations and evasive replies alone cannot form a safe basis to infer common intention under Section 34 IPC without more tangible material. (Para 10 , 11 )
5. Appeals allowed, conviction and sentence set aside, and accused acquitted on the benefit of reasonable doubt. (Para 12 , 13 )
6. Can strained family relations and evasive replies alone establish common intention under Section 34 IPC?
No. The court held that such factors are not a safe and sound basis to infer common intention. Common intention must be based on more tangible material to hold accused jointly and vicariously liable for a crime. (Para 10 )
7. Does the failure of accused to explain the disappearance of a person in their custody unerringly prove guilt under Section 106 of the Evidence Act?
Not necessarily. The court observed that evasive replies, even when construed under Section 106 of the Evidence Act, may not unerringly point to guilt, particularly if material witnesses have not been examined by the prosecution. (Para 8 )
8. Can a conviction under Section 302 IPC be sustained if common intention under Section 34 IPC is not proved in a case with multiple accused?
No. If the prosecution fails to prove the involvement of any specific accused in the crime or the existence of a common intention, the accused cannot be held liable for the offence under Section 302 IPC. (Para 11 )
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
