Point of Law : Common intention contemplated by Section 34 IPC pre-supposes prior concert. It requires meeting of minds.

JUDGMENT :

1. This appeal under Section 374 (2) of the Code of Criminal Procedure (Cr.P.C. for short) is preferred against the judgment and order dated 30.08.2018 and 01.09.2018 passed by the Additional Sessions Judge, Goalpara in connection with Sessions Case No. 68/2015 convicting the accused-persons Jahirul Islam and Azad Ali u/s 302/34 of the Indian Penal Code (IPC for short), sentencing them to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with default stipulation.

2. The genesis of the case was that, about five years ago, Danesh Ali’s daughter Mustt. Sahinur Khatun was married to Jahirul Islam. From the threshold of her marriage, Sahinur Khatun was subjected to mental harassment. On 22.09.2012, Jahirul assaulted and killed his wife at the behest of his father Azad Ali. In a subterfuged manner, Jahirul Islam informed his father-in-law Danesh Ali (hereinafter referred to as the informant) that Sahinur’s body was found to be numb and lifeless. Immediately, Danesh Ali rushed to his son-in-law’s house and found his daughter’s body lying on the floor. Both the accused Jahirul and Azad Ali were missing. Danesh Ali then lodged the FIR with the police at Lakhipur P.S. This FIR was registered as Lakhipur P.S. Case No. 532/2012 u/s 120B/302/34 IPC and the Investigating Officer (IO in short) embarked upon the investigation.

3. After completion of investigation charge-sheet was laid against the accused u/s 120B/302/34 IPC. After commitment of this case, trial commenced and a formal charge u/s 120B/302/34 IPC was framed and read over and explained to the accused, who adjured their guilt and claimed innocence.

4. To substantiate its stance, the prosecution adduced the evidence of 10 witnesses including the Medical Officer (MO in short) and the IO and the defence cross-examined some witnesses to refute the charges. The accused were confronted with the incriminating materials appearing against them and their tenor of answers to questions u/s 313 of the Code of Criminal Procedure (Cr.PC for short) depicts the plea of total denial. The accused Jahirul Islam and Azad Ali have categorically denied that the victim was strangulated.

5. The trial Court decided the case on the following points:-

[i] Whether the accused persons made an agreement in order to kill the deceased Sahinur Khatun?

[ii] Whether the accused persons in furtherance of common intention caused death to Shanur Khatun?

6. The learned Trial Court held the accused guilty as they were last seen with the deceased. The accused failed to discharge his burden under Section 106 of the Indian Evidence Act. Eye witnesses had noticed the accused with the victim and they were thus held guilty of the offence of Sections 302/34 IPC by the learned Trial Court.

7. The learned Senior Counsel for the appellants Mr. A.C. Sarma laid stress in his argument that the accused are innocent. The trial Court erred by convicting the accused on presumption. Without sufficient evidence and on basis of the sole circumstance that the victim was found dead in her matrimonial house, both the accused were convicted. He urged that the chain of circumstances is incomplete and unconvincing and thus, conviction of the accused is fit to be reversed.

8. Per contra, the learned Addl. P.P. Ms. B. Bhuyan laid stress in her argument that the accused failed to discharge their burden u/s 106 of the Indian Evidence Act, 1872 (the Evidence Act for short) to explain the reasons how the victim was found dead inside the house.

9. The learned Addl. PP relied on the decision of the Hon’ble Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra, reported in (2006) 10 SCC 681.

10. On the backdrop of these submissions the question that falls for consideration is that whether the circumstances formed a complete chain unerringly pointing towards the guilt of the accused and inconsistent with their innocence.

11. The instant case rests squarely on the plank of circumstantial evidence. Jahirul Islam will hereinafter be refer