JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed against the judgment dated 29th of August, 1996 passed in Sessions Trial No. 114/95 by the Third Additional Sessions Judge, Raipur. By the impugned judgment, the appellants have been convicted u/Ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentence of R.I. for 3 months. 2. The facts, briefly stated, are as under :- 2.1 Ajay Kumar Agrawal (A-1) was married to Santosh Agrawal (deceased) on 8.2.1992. After the marriage, the deceased was residing with her husband- Ajay Kumar Agrawal (A-1), brother-in-law/Dewar- Sanjay Kumar Agrawal (A-2), mother-in-law Imrati Devi (A-3) and father-in-law - Satyanarayan Agrawal (A-4). Smt. Saroj (A-5) was married sister-in-law (Nand) of the deceased who was residing separately. 2.2 The case of the prosecution is that on 19.12.1994 at about 11.30 p.m., the deceased was present in her bed-room. She was firstly committed to death by throttling and thereafter her dead body was put to fire on her bed after pouring kerosene. The further case of the prosecution is that the deceased was being treated with cruelty on account of demand of dowry by accused persons and ultimately her murder was committed by them in the fateful night. 2.3 The accused persons (A-l to A-5) were charged with the offences punishable u/Ss 302/34 IPC. Alternatively, they were also charged with the offences punishable u/Ss 304-B and 498-A IPC. The sister-in- law (A-5) was acquitted of all the charges framed against her. The other accused persons (A-1 to A-4) were also acquitted of the charges framed u/Ss 304-B and 498-A IPC. However, they were convicted u/Ss 302/34 IPC. 2.4 On 20.12.1994 at about 1.00 hours, Ajay Kumar (A-1) lodged merg intimation (Ex.-P/36) in police station Nevra that on 19.12.1994 at about 7.00 a.m., he had gone to Gondiya (Maharashtra). He returned in the night at about 11.30 p.m. The door of his house was closed from inside which was opened by his father (A-4). Firstly, he talked with his father, who was present in the ground floor and thereafter he went to the second floor in his bed-room. He called his wife at the door of his bed-room. When no reply was given, he knocked the door. He felt that the door was heated. He made cries and called his parents (A-3 and A-4). Firstly, he talked with his father, who was present in the ground floor and thereafter he went to the second floor in his bed-room. He called his wife at the door of his bed-room. When no reply was given, he knocked the door. He felt that the door was heated. He made cries and called his parents (A-3 and A-4). He also called his neighbour- Brijlal Sahu (PW-5). His parents (A-3 and A-4) and his younger brother-Sanjay Kumar (A-2) all rushed to his room. They got opened the door by kick and saw that the matrix put on the cot was burning. Windows of the room were closed. By torchlight they saw that his wife- Santosh Agrawal (deceased) was lying burnt on the cot. She has already died. 2.5 The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/4) on the dead body of the deceased. Smell of kerosene was coming out from the remaining cloths and matrix of the deceased which were in semi-burnt condition. The cloths and the pieces of quilt and cushion near the dead body were seized vide seizure memo Ex.-P/5. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. S.C. Talariya (FW-10). He found that it was a case of extensive bum. Almost all the hairs were burnt accept the Juda and of some portion of back of the skull. The mouth was open and the tongue was protruded between the teeth. Ornaments had become blackish. All the internal organs were congested. They were dislocations of the bones of forearms and there was a fracture on the right femur bone. The Autopsy Surgeon opined that the cause of death was asphyxia as a result of throttling and the deceased had sustained postmortem burns. To find out the possibility of sexual assault, two slides of vaginal swab was also prepared. The postmortem report is Ex.-P/9. 2.6 In further investigation, accused- Ajay Kumar Agrawal (A-1) and Sanjay Kumar Agrawal (A-2) were taken into custody and their memorandum statements (Ex.-P/7 and P/8) were recorded u/S 27 of the Evidence Act and a tin-container of kerosene and match-stick etc were seized at their instance vided seizure memo Ex.-P/6. 2.7 The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar vide memo Ex.-P/40, and a report was received. 2.7 The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar vide memo Ex.-P/40, and a report was received. According to the FSL report kerosene was found on all burnt cloths sent for their examination. The two slides were also sent for their examination to Regional Forensic Science Laboratory (RFSL), Raipur vide memo Ex.P/41, and a report (Ex.-P/42) was received. According to this report, human spermatozoa were not found on the slides prepared from the vaginal swab of the deceased. 2.8 When the neighbours had rushed to the house of the accused, the accused persons had stated that the fire in the room has caught on account of shot-circuit, therefore, the entire electricity connection of the room was got examined by Arvind Kumar Chaturvedi (PW -13), Assistant Engineer, of Madhya Pradesh Electricity Board (M.P.E.B.) who gave his report (Ex.-P/35) that there was nothing like shot-circuit in the electricity connection of the room of the deceased. 2.9 Admittedly there was no eye-witness to the incident and the case of the prosecution, was based on circumstantial evidence. The learned Sessions Judge held that it was a case of homicidal death in which firstly the deceased was murdered by throttling and thereafter her dead body was put to fire by pouring kerosene. Since all the appellants (A-1 to A-4) were inmates of the house and their conduct would show that even they did not try to extinguish the fire after the neighbours had rushed to their house, and they mislead them saying about shot-circuit and there were discoveries through them, therefore, they were responsible for commission of murder of the deceased. The appellants, thus, were convicted and sentenced as above. Hence this appeal. 3. Mr. Datt, learned Sr. Counsel appearing' on behalf of the appellants, has firstly contended that the Sessions Judge was not justified in refusing the contention that it was not a case of homicidal death. The argument cannot be accepted. Dr. S.C. Talariya (FW-10) had conducted autopsy on the dead body of the deceased. He had found above external and internal injuries on the dead body. There were no blisters on the dead body. He clearly opined that the deceased had sustained postmortem burns. The postmortem report would show that carbon particles were not found in the nostrils or trachea of the deceased. He had found above external and internal injuries on the dead body. There were no blisters on the dead body. He clearly opined that the deceased had sustained postmortem burns. The postmortem report would show that carbon particles were not found in the nostrils or trachea of the deceased. The Autopsy Surgeon has also opined that if a person dies out of bum injuries in a closed room, carbon pm1icles should be found in his nostrils and trachea. According to the accused persons, the room of the deceased was closed from all the sides and the windows etc. were also closed. Thus if the deceased would have died out of bum injuries, she must have inhaled carbon particles which we do not find in this case. That apart we also note that there was a fracture on the right femoral. In a simple bum case, such fracture may not be found. Kerosene was found on the burnt cloths and the pieces of the quilt and cushion found just below the dead body and the container of kerosene was seized from a different portion of house on the discoveries made by the accused. The accused persons had offered explanation that the fire caught the cushion on account of shot-circuit. But, the report of the Asst. Engineer (PW-13) would show that there was no shot-circuit in the electricity connection of the room. Had it been a case of bum by shot-circuit, the kerosene would not have been found on the cloths, quilt & cushion of the deceased in FSL report. The dead body was found on the bed. In normal circumstances, if the quilt of the bed of a person gets fire, he/she would get up and would save his/her life. 4. Mr. Datt has argued that the evidence of expert examined by the defence, Dr. D.C. Jain (DW-2), would suggest that the bums were ante-mortem. We have gone through the evidence of DW-2. He has deposed that in cases like present one in which the bums were of 5th and 6th degree it cannot be ascertained only on account of non-formation of blisters that the bums were postmortem. He admitted in Para-8 of his examination-in-chief that the death could have been homicidal, suicidal or accidental. However, he did not depose as to whether, the bums were ante-mortem or postmortem. He admitted in Para-8 of his examination-in-chief that the death could have been homicidal, suicidal or accidental. However, he did not depose as to whether, the bums were ante-mortem or postmortem. Admittedly carbon particles were not found either in the nostrils or in the trachea or respiratory system of the deceased which must have been found in case of death by bum which is also agreed by both the experts. Many photographs of the deceased have been brought on record. According to them, the deceased was found on her bed in extensive burnt condition. We are of the view that in light of the above medical evidence and further in light of the other surrounding circumstances, the learned Sessions Judge was fully justified in recording a finding that it was a case of homicidal death. 5. Mr. Datt has further contended that in absence of any positive evidence against each appellant, merely on account of their presence at the time of incident, they cannot be convicted with the aid of Section 34 IPC. 6. Let us firstly remind the principles relating to Section 34 IPC and Section 106 of the Evidence Act. 7. In Aizaz & ors. Vs. State of U.P., 2008 AIR SCW 5765 it was held vide Paras- 6 & 7 : "6. Coming to the plea relating to Section 34 the Section really means that if two or more persons intentionally do a common thing jointly, it is just the same as if each of them had done it individually. It is a well recognized canon of criminal jurisprudence that the Courts cannot distinguish between co-conspirators, nor can they inquire, even if it were possible as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object each and every person becomes responsible for the act of each and every other in execution and furtherance of their common purpose; as the purpose is common, so must be the responsibility. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting. All are guilty of the principal offence, not of abetment only. In a combination of this kind a mortal stroke, though given by one of the parties, is deemed in the eye of law to have been given by every individual present and abetting. But a party not cognizant of the intention of his companion to commit murder is not liable, though he has-joined his companion to do an unlawful act. Leading feature of this Section is the element of participation in action. The essence of liability under this Section is the existence of a common intention animating the offenders and the participation in a criminal act in furtherance of the common intention. The essence is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result {See Ramaswami Ayyanagar and Ors. v. State. of Tamil Nadu ( AIR 1976 SC 2027 )}. The participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence may be necessary, but such is not the case in respect of other offences when the offence consists of diverse acts which may be done at different times and places. The physical presence at the scene of offence of the offenders sought to be rendered liable under this Section is not one of the conditions of its applicability in every case. Before a man can be held liable for acts done by another, under the provisions of this Section, it must be established that (i) then; was common intention in the sense of a pre-arranged plan between the two, and (ii) the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this Section cannot apply. 7. 'Common intention' implies pre-arranged plan and acting in concert in pursuant to the pre-arranged plan. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Under this Section a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to, the commission of offence showing, a pre-arranged plan and prior concert. {See Krishna Govind Patil v. State of Maharashtra ( AIR 1963 SC 1413 ). In Amrit Singh and Ors. v. State of Punjab (1972 Cri LJ 465 SC)}, it has, been held that common intention pre-supposes prior concert. Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bonds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice. To constitute common intention, it is necessary that intention of each one of them be known to the rest of them and shared by them. Undoubtedly, it is a difficult thing to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. But however difficult may be the task, the prosecution must lead evidence of facts, circumstances and conduct of the accused from which their common intention can be safely gathered. In Magsogdan and Ors. v. State of U.P. (AIR 1988 SC 126) it was observed that prosecution must lead evidence from which the common intention of the accused can be safely gathered. In most cases it has to be inferred from the act, conduct or other relevant circumstances of the case in hand. The totality of the circumstances must be taken into consideration in arriving at a conclusion whether the accused had a common intention to commit offence for which they can be convicted. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. The facts and circumstances of cases vary and each case has to be decided keeping in view of the facts involved. Whether an act is in furtherance of the common intention is an incident of fact and not of law. In Bhaba Nanda Barma and Ors. v. The State of Assam ( AIR 1977 SC 2252 ) it was observed that prosecution must prove facts to justify an inference that all participants of the acts had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Mere presence of a person at the time of commission of an offence by his confederates is not, in itself sufficient to bring his case within the purview of Section 34, unless community' of designs is proved against him (See Malkhan and Anr. v. State of Uttar Pradesh ( AIR 1975 SC 12 ). In the Oxford English Dictionary, the word "furtherance" is defined as 'action of helping forward'. Adopting this definition, Russel says that "it indicates some kind of aid or assistance producing an effect in future" and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken, for the purpose of effecting that felony. (Russel on Crime 12th Edn. Vol. I pp. 487 and 488). In Shankarlal Kacharabhai and Ors. v. The State of Gujarat ( AIR 1965 SC 1260 ) the Supreme Court has interpreted the word "furtherance" as 'advancement or promotion'." 8. In Trimukh Maroti Kirkan V. State of Maharashtra, 2006 AIR SCW 5300, it was held that : "... If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would because an additional link in chain of circumstances." 9. Further in State of Rajasthan Vs. Kashi Ram, 2006 AIR SCW 5768 it was held that : "Whether an inference ought to be drawn under Section 106 is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts. The respondent, accused having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by S. 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt." The Court further held that : "...The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd's case reported in AIR 1960 Madras 218." 10. In the instant case, the evidence of Patwari, Rasanand Barik (PW6) would show that the incident took place in a room in the second floor of the house where only the husband (A-1) and wife (deceased) were residing together. According to the prosecution, daughter of the deceased was not present in that room as she was sleeping in a room in the ground floor. Brijlal (PW5) is neighbour of the deceased. He was the first person to reach to the house of the appellants. According to him, he met Satyanarayan (A-4) who was present in front of his house. Satyanarayan (A-4) told him that he should go to upstairs as fire has caught there. When he was going to second floor, Imrati Devi (A-3) met him in the staircase. He met Sanjay (A-2) in a room on the upper floor. Ajay (A-1) was standing at the door of that room, where the incident had taken place. Ajay (A-1) also told him that fire has caught the articles, he should extinguish the fire. He tried to extinguish the fire by pouring water. He met Sanjay (A-2) in a room on the upper floor. Ajay (A-1) was standing at the door of that room, where the incident had taken place. Ajay (A-1) also told him that fire has caught the articles, he should extinguish the fire. He tried to extinguish the fire by pouring water. When he asked Ajay (A-1), Ajay told him that the fire had taken place on account of shot-circuit. 11. The incident took place at about 11.30 p.m. Normally it was a sleeping time. The evidence on record would show that only husband (A-1) and wife (deceased) were residing in a room in the second floor of the house and other accused were residing in ground floor. Therefore, in absence of any positive evidence of sharing common intention by the other accused persons, only husband (A-1) was responsible to give a cogent explanation as to how the crime was committed. 12. Section 106 of the Evidence Act is categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus the husband (A-1), who admittedly was present in the house at the time of the incident, was required to offer explanation on the basis of facts within his special knowledge. 13. In the instant case, the husband gave explanation that the incident took place on account of shot-circuit which was a false explanation on the face of evidence of Arvind Kumar Chaturvedi (PW-13) who found on examination that there was no shot-circuit in the room. Thus, it was an additional circumstance against him. The husband (A-1) tried to explanation that when the wife (deceased) was sleeping on the bed, the fire caught the quilt and she died on account of the bum injuries sustained by her. This explanation was also false because in postmortem examination carbon particles were not found in the nostrils, trachea or respiratory system of the deceased. The dead body of the deceased was found in the room of the appellant (A-1) situated in the second floor of the house, where only two persons (husband and wife) were residing separately. The husband (A-1) himself had lodged merg intimation to the police. He mentioned in the merg intimation that all the doors and windows of the room were closed which rules out the possibility of intervention of any other person. The husband (A-1) himself had lodged merg intimation to the police. He mentioned in the merg intimation that all the doors and windows of the room were closed which rules out the possibility of intervention of any other person. The two years daughter of the deceased was sleeping in the ground floor along with the grand parents. All above circumstances were fully established against the husband (A-1). The above circumstances were of conclusive nature and tendency and none of the circumstances were capable of being explained and the chain of circumstantial evidence was also complete. On appreciation of the entire evidence on record, we are of the view that the conviction of the husband (A-1) u/S 302 IPC was fully justified and the same deserves to be upheld. 14. So far as other appellants (A-2 to A-4) are concerned, as we have already stated, they were residing in the ground floor of the house. Since they were inmates of the house, therefore, their presence in the house in late night was natural. There is no evidence on record to show that either they had physically participated in commission of murder of the deceased or they had shared common intention for commission of her murder. Thus, they cannot be held liable for punishment u/S 302 with the aid of Section 34 IPC on the principles enumerated above. However, the evidence led against them would show that they also gave false explanation to the neighbours that the incident took place on account of shot-circuit and in that manner they tried to mislead them. Kerosene was used for burning the deceased and the container of the kerosene was hidden and it was seized on the discovery statements (Ex.-P/7 & /P/8) made by Sanjay Kumar (A-2) and Ajay Kumar (A-1). Thus, they had caused disappearance of evidence of offence of murder and had given false information to screen the main offender i.e. husband of the deceased namely- Ajay Kumar (A-1). We are of the view that in the above facts and circumstances of the case, the other appellants (A-2 to A-4) would be liable for punishment u/S 201 IPC. 15. For the foregoing reasons, we confirm the conviction and sentences awarded to Ajay Kumar Agrawal (A-1) with short modification that he shall stand convicted u/S 302 instead of 302/34 IPC. We are of the view that in the above facts and circumstances of the case, the other appellants (A-2 to A-4) would be liable for punishment u/S 201 IPC. 15. For the foregoing reasons, we confirm the conviction and sentences awarded to Ajay Kumar Agrawal (A-1) with short modification that he shall stand convicted u/S 302 instead of 302/34 IPC. The conviction and sentences awarded to other appellants (A-2 to A-4) u/Ss 302/34 IPC, are set-aside. Instead thereof, they are convicted u/S 201 IPC. 16. Sanjay Kumar Agrawal (A-2) has already undergone for about 6 years & 7 months; Imrati Devi (A-3) has undergone for about 3 years & 11 months and Satyanarayan Agrawal (A-4) has also undergone for about, 5 years & 11 months. Satyanarayan Agrawal (A-4) is aged about 81 years and Imrati Devi (A-3) is aged about 78 years. They are on bail since long. Sanjay Kumar Agrawal (A-2) is also on bail since long. Therefore, we sentence them to the period already undergone. 17. The appeal is allowed to the extent indicated above. Appeal Partly Allowed.