BENGAI MANDAL @ BEGAI MANDALversusSTATE OF BIHAR

                    [2010] 1 S.C.R. 439

          BENGAi MANDAL @ BEGAI MANDAL                          A
                             v.
                     STATE OF BIHAR'
            (Criminal Appeal No. 1418 of 2004)
                    JANUARY 11, 2010
                                                                B
      [V.S. SIRPURKAR AND DR. MUKUNDAKAM ·
                   SHARMA, JJ.)

     Penal Code, 1860:
                                                                c
     ss.304 Part II and 326 rlw s.34 and s.302 r/w s.34 -
 Appellant and co-accused allegedly entered into house of
 deceased and poured acid over her, which caused blisters
 and rashes on her entire body, and ultimately she died -
 Dying declaration given by deceased - Conviction of            0
 appellant under s.302 rlw s.34 - Challenge to - Held: In her
 dying declaration, deceased imputed acts of entry into her
house and physical presence at the time of incident to
appellant without anything more - In absence of any active
role played by appellant or overt act being done by him, it
cannot be said with cerlainty that he accompanied co-accused    E
to house of deceased with common intention to murder her -
Hence, conviction of appellant under s.302 rlw s.34 cannot be
sustained - However, appellant did not prevent the co-
accused from throwing acid on deceased, which clearly
establishes that he intended to cause injury to and also        F
disfigurement of deceased and as such is liable to be
punished under s.326 - Also since appellant could be said
to be possessing knowledge that throwing of acid is likely to
cause death of deceased, case under s.304 parl II is also
made out - However, since death ensued twenty six days after    G
the incident as a result of septicemia and not as a
consequence of burn injuries, and as appellant had already
served RI for seven years, quantum of sentence reduced to
period already undergone.
                            439                                 H
    440      SUPREME COURT REPORTS                [2010] 1 S.C.R.


A         s. 34 - Nature, purpose and scope of - Discussed.

         Accor~1ng to the prosecution, since PW-7's sister-in-
    law had turned down the sexual advances of the
    appellant-accused and a co-accused, they, with the intent
    to kill her. entered into her house at night and poured
8
    acid over her, which caused blisters and rashes on her
    entire bc.:ly, and ultimately she died. The courts below
    convicted appellant under s.302 r/w s.34 and sentenced
    him to life imprisonment.

C      In apoeal to this Court, it was contended that Courts
  below erred in convicting the appellant under s,.302 IPC
  and if at all a case existed against the appellant, it was
  under s.304 Part II IPC, for it was the other accused, who
  had carried the vessel containing the acid and actually
D poured the acid on the deceased causing her death and
  that there was no overt act on the part of the appellant in
  the commission of the said offence.

          Partly allowing the appeal, the Court

E      HELD: 1. The position with regard to s.34 IPC is
  crystal clear. The existence of common intention is a
  question of fact. Since intention is a state of mind, it is
  therefore very difficult, if not impossible, to get or procure
  dirnct proof of common intention. Therefore, courts, in
F most cases, have to infer the intention from the act(s) or
  conduct of the accused or other relevant circumstances
  of the case. However, an inference as to the common
  intention shall not be readily drawn; the criminal liability
  can arise only when such inference can be drawn with a
G certain degree of assurance. [Para 14] [447-E-G]

         Girija Shankar v. State of U.P. (2004) 3 SCC 793 and
    Vaijayanti v. State of Maharashtra (2005) 13 SCC 134, relied
    on.
H         2. On a perusal of the evidence on record, it is found
 BENGAi MANDAL @ SEGAi MANDAL v. STATE OF 441
                  BIHAR
that all the prosecution witnesses except the official        A
witnesses namely, PW-8, PW-10 and PW-11 disowned the
prosecution case (some completely and some to the
extent of the identification of the accused persons).
However, what is clearly established from the evidence
of prosecution witnesses is that acid was thrown over         B
the deceased on the night intervening 13.07.1996 and
14.07.1996 which caused blisters and rashes on her body
and later led to her death. This fact finds corroboration
in the dying declaration given by the deceased to PW-11
wherein the deceased has categorically stated that on the     c
night intervening 13.07 .1996 and 14.07.1996, the appellant
and the co-accused had entered into her house and the
co-accused poured a watery substance over her from the
pot which the co-accused was carrying in his hand. [Para
15] (448-A-C]                                                 D

      3.1. From the dying declaration given by the
deceased, it is clear that it was the other accused who
had carried (in his hand) the vessel containing the acid
and who had actually thrown its contents i.e. the acid on
the deceased. The deceased, in her dying declaration,         E
had attributed the acts of carrying the vessel containing
the acid and throwing the contents thereof on her only
to the other accused whereas she accused both the
accused of demanding illicit body relations with her as
also entering into her house. From the dying declaration,     F
it is clearly established that the appellant was present at
the-time and. scene of the offence. [Para 15] (448-C-F]

    3.2. In her dying declaration, the deceased has
imputed the acts of entry into her house and physical         G
presence at the time of the incident to the appellant
without anything more. No other overt act save as
mentioned above has been imputed to the appellant by
the deceased. It has also not come in evidence that the
appellant tried to gag her mouth or overpower the             H
    442    SUPREME COURT REPORTS             (2010] 1 S.C.R.


A deceased in any other manner so as to facilitate the
  pouring of acid on her by the co-accused. Had the
  appellant shared an intention common with the co-
  accused to kill the deceased by throwing acid on her, it
  would have been manifest in his conduct which would
B certainly have been something more than him being just
  a mute spectator to the whole incident. [Para 16) (448-G-
  H; 449-A-C]

      4.1. In absence of any active role played by the
C appellant or overt act being done by him, it cannot be said
  with certainty that the appellant had accompanied the co-
  accused to the house of the deceased with a common
  intention to murder the deceased. In view thereof, the
  conviction of the appellant under s.302 r/w s.34 IPC
  cannot be sustained. [Para 17) (449-C-D]
D
       4.2. However, keeping in mind the facts that the
  deceased had turned down the sexual advances made
  by the appellant and that he had accompanied the co-
  accused who was carrying a vessel containing acid in his
E hand at the dead of the night and in an unearthly hour, it
  can be said with certainty that the appellant had the
  intention to inflict bodily harm on the deceased otherwise
  the appellant would not have accompanied the co-
  accused to the house of the deceased. Since the
F appellant was present at the scene of occurrence and
  simply watched the co-accused throwing acid on the
  deceased without preventing the co-accused from doing
  so, it clearly establishes that the appellant had intended
  to cause injury to and also disfigurement of the deceased
G and as such is liable to be punished under s.326 IPC. Also
  since the appellant could be said to be possessing
  knowledge that the throwing of acid is likely to cause
  death of the deceased, a case under s.304 part II is also
  made out. The appellant has already served rigorous
  imprisonment for a period of seven years. Considering
H
 BENGAi MANDAL @ BEGA! MANDAL v. STATE OF 443
                  BIHAR

the facts that the death ensued after twenty six days of           A
the incident as a result of septicemia and not as a
consequence of burn injuries, the period already
undergone by the appellant would be sufficient to meet
the ends of justice. [Para 18] [449-E-H; 450-A-B]
                                                                   B
                   Case Law Reference :
     (2004) 3 sec 793          relied on             Para 12
     (2005) 13 sec 134         relied on             Para 13
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal               C
No. 1418 of 2004.

    From the Judgment & Order dated 20.05.2004 of the High
Court of Judicature at Patna in Criminal Appeal No. 505 of
2000.
                                                                   D
    Anil K. Chopra (N.P.) and Anagha S. Desai (A.C.), for the
Appellant.
    Gopal Singh for the Respondent.
    The Judgment of the Court was delivered by                     E
      DR. MUKUNDAKAM SHARMA, J. 1. By this appeal, the
present appellant seeks to challenge the judgment and order
dated 20.05.2004 passed by the Patna High Court, whereby
the High Court upheld the conviction and sentence passed
against the appellant by the trial Court. The trial Court had by   F
its judgment dated 24.07.2000 and order dated 25.07.2000
convicted the appellant and sentenced him to undergo
imprisonment for life under Section 302 read with Section 34,
RI for a period of seven years under Section 326 read with
Section 34, RI for a period of three years under Section 452       G
and RI for a period of three years under Section 324 IPC.

     2. The facts necessary for the disposal of the present
appeal and as presented by the prosecution may be set out at
this stage. On 14.07.1996 at 6 a.m., Shrikant Mahto, brother-      H
    444     SUPREME COURT REPORTS                 [201 O] 1 S .C.R.


A in-law of the deceased (PW-7) gave a fard-e-bayan to the
  Assistant Sub-Inspector of Police wherein he stated that on
  13.07.1996 after having his supper, he had gone to sleep at
  his darwaza (open space in front of the house). Pramila Devi,
  the deceased was sleeping inside the house with her son Sonu
B Mahto. At about 2.30 in the night, PW-7 woke up on hearing
  the cries of the deceased and rushed inside to find out what
  was happening. PW-7 saw that the deceased was lying on the
  ground and was tossing about on the ground. PW-7 picked up
  the deceased and found that the entire body and clothes of the
C deceased had burnt. PW-7 further noticed that blisters and
  rashes were erupting all over the body of the deceased and
  that she was writhing in pain.

         3. The deceased told PW-7 that the appellant herein and
  one Mahendra Mahto (accused no. 1) had entered into the
D house carrying a vessel in his hand and had thrown its contents
  over her as a result of which her entire body and clothes were
  burnt. The deceased further informed PW-7 that the appellant
  and the accused no.1 would try to stop the deceased on her
  visit to market or work and ask for sexual favour. The deceased
E further told that she had turned down their advances and for that
  reason they had thrown acid over her to burn her body with the
  intent to kill her.

       4. On hearing the commotion, some villagers assembled
F there and went out to look for the appellant and the accused
  nc.1, who were seen fleeing towards the east. The deceased
  was taken to the hospital. At the hospital also, the deceased
  stated that acid was thrown over her by the appellant and the
  accused no. 1. After treatment at the District hospital at Purnea
G for a few days, the deceased was sent back to her home where
  she finally died on 10.08.1996.

        5. On the basis of the aforesaid fard-e-bayan, an F.l.R.
    under Sections 302, 326, 448, 323 read with Section 34 IPC
    was registered on the same day at 1 p.m.
H
                     \




   BENGAi MANDAL @ SEGAi MANDAL v. STATE OF 445
       BIHAR [DR. MUKUNDAKAM SHARMA, J.]

      6. After completion of the investigation, the police              A
 submitted a charge-sheet against the appellant and accused
 no.1. On the basis of the aforesaid charge sheet, the trial Court
 framed charges under the Section 302 read with Section 34,
 Section 326 read with Section 34, Section 452 and Section
 324 IPC against the appellant and the accused no. 1 to which           B
 they pleaded not guilty and claimed to be tried.

       7. At the trial, the prosecution examined 11 witnesses and
  exhibited several documents in support of its case. On
' conclusion of the trial, the trial Court by its judgment dated        C
  24.07.2000 and order dated 25.07.2000 convicted the
  appellant and accused no. 1 to undergo imprisonment for life
  under Section 302 read with Section 34, RI for a period of
  seven years under Section 326 read with Section 34, RI for a
  period of three years under Section 452 and RI for a period of
  three years under Section 324 IPC. All the sentences were             D
  directed to run concurrently.

       8. Aggrieved by the decision of the trial Court, the appellant
 herein and the accused no. 1 filed two separate appeals before
 the Patna High Court. By a common judgment and order dated             E
 20.05.2004, the Patna High Court upheld the decision of the
 trial Court and dismissed the said appeals.

       9. The counsel appearing on behalf of the appellant
 strongly contended before us that the High Court as well as the
                                                                        F
 trial Court had erred in convicting the appellant under Section
 302 IPC and if at all a case existed against the appellant, it
 was under Section 304 part 11 IPC, for it was accused no. 1 who
 had carried the vessel containing the acid and actually poured
 the acid on the deceased causing her death. The counsel
 further submitted that there was no overt act on the part of the       G
 appellant in the commission of the said offence.

      10. The counsel appearing on behalf of the respondent-
 State, on the other hand, supported the decisions of the courts
 bel~.                                                                  H
    446     SUPREME COURT REPORTS                     [2010] 1 S.C.R.


A        11. Before dwelling into the evidence on record and
    addressing the rival contentions made by the parties, we wish
    to reiterate the precise nature, purpose and scope of Section
    34 IPC.

B        12. In Girija Shankar v. State of U.P. (2004) 3 SCC 793,
    this Court, while bringing out the purpose and nature of Section
    34 IPC observed in para 9, as follows:

          "9. Section 34 has been enacted on the principle of joint
          liability in the doing of a criminal act. The section is only a
c         rule of evidence and does not create a substantive offence.
          The distinctive feature of the section is the element of
          participation in action. The liability of one person for an
         offence committed by another in the course of criminal act
         perpetrated by several persons arises under Section 34
D        if such criminal act is done in furtherance of a common
         intention of the persons who join in committing the crime.
         Direct proof of common intention is seldom available and,
         therefore, such intention can only be inferred from the
         circumstances appearing from the proved facts of the case
E        and the proved circumstances. In order to bring home the
         charge of common intention, the prosecution has to
       · establish by evidence, whether direct or circumstantial,
         that there was plan or meeting of minds of all the accused
         persons to commit the offence for which they are charged
F        with the aid of Section 34, be it pre-arranged or on the spur
         of the moment; but it must necessarily be before the
         commission of the crime. The true concept of the section
         is that if two or more persons intentionally do an act jointly,
         the position in law is just the same as if each of them has
         done it individually by himself. As observed in Ashok
G
         Kumar v. State of Punjab the existence of a common
         intention amongst the participants in a crime is the
         essential element for application of this section. It is not
         necessary that the acts of the several persons charged with
         commission of an offence jointly must be the same or
H
 BENGAi MANDAL@ BEGAI MANDAL v. STATE OF 447
     BIHAR [DR. MUKUNDAKAM SHARMA, J.]
     identically similar. The acts may be different in character,     A
     but must have been actuated by one and the same
     common intention in order to attract the provision."

     13. In Vaijayanti v. State of Maharashtra (2005) 13 SCC
134, this Court, observed in para 9, as follows:
                                                                      B
     "9. Section 34 of the Indian Penal Code envisages that
     "when a criminal act is done by several persons in
     furtherance of the common intention of, each of such
     persons is liable for that act, in the same manner as if it
     were done by him alone". The underlying principle behind         C
     the said provision is joint liability of persons in doing of a
     criminal act which must have found in the existence of
     common intention of enmity in the acts in committing the
     criminal act in furtherance thereof. The law in this behalf
     is no longer res integra. There need not be a positive overt     D
     act on the part of the person concerned. Even an omission
     on his part to do something may attract the said provision.
     But it is beyond any cavil of doubt that the question must
     be answered having regard to the fact situ;;Jtion obtaining
     in each case."                                                   E
                                            (emphasis supplied)

      14. Thus, the position with regard to Section 34 IPC is
crystal clear. The existence of common intention is a question
of fact. Since intention is a state of mind, it is therefore very     F
difficult, if not impossible, to get or procure direct proof of
common intention. Therefore, courts, in most cases, have to
infer the intention from the act(s) or conduct of the accused or
other relevant circumstances of the case. However, an inference
as to the common intention shall not be readily dr:_awn; the          G
criminal liability can arise only when such inference can be
drawn with a certain degree of assurance.

    15. With tti_e afore_said legal position in mind, we have
considered the submissions m~by the counsel for the parties
                                    '
                                                                      H
    448     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A and also scrutinized the evidence available on record before
  us. On a perusal of the evidence before us, we find that all the
  prosecution witnesses except the official witnesses namely,
  PW-8, PW-10 and PW-11 disowned the prosecution case
  (some completely and some to the extent of the identification
8 of  the accused persons). However, what is clearly established
  from the evidence of prosecution witnesses is that acid was
  thrown over the deceased on the night intervening 13.07.1996
  and 14.07.1996 which caused blisters and rashes on her body
  and later led to her death. This fact finds corroboration in the
C dying declaration given by the deceased to PW-11 wherein the
  deceased has categorically stated that on the night intervening
  13.07.1996 and 14.07.1996, accused no.1 and the appellant
  had entered into her house and accused no.1 poured a watery
  substance over her from the pot which the accused no.1 was
  carrying in his hand. The dying declaration given by the
D deceased comes as an important piece of evidence as it
  throws light on the role played by each of the accused persons
  at the time of the incident. After a careful reading of the dying
  declaration, what comes out to the fore is that it was accused
  no. 1 who had carried (in his hand) the vessel containing the
E acid and who had actually thrown its contents i.e. the acid on
  the deceased. The deceased, in her dying declaration, had
  attributed the acts of carrying the vessel containing the acid and
  throwing the contents thereof on her only to accused no. 1
  whereas she accused both the accused no.1 and the appellant
F of demanding illicit body relations with her as also entering into
  her house. From the dying declaration as on record before us,
  it is clearly established that the appellant was present at the
  time and scene of the offence. However, what needs to be
  ascertained is whether the appellant herein shared an intention
G common with the accused no.1 so that he may be convicted
  under Section 302 IPC by invoking the aid of Section 34 lPC.

       16. To find answer to this question, we need to revert back
  to the dying declaration of the deceased. In her dying
H declaration, the deceased has imputed the acts of entry into
 BENGAi MANDAL @ SEGAi MANDAL v. STATE OF 449
     BIHAR [DR. MUKUNDAKAM SHARMA, J.]

her house and physical presence at the time of the incident to       A
the appellant without anything more. No other overt act save as
mentioned above has been imputed to the appellant by the
deceased. It has also not come in evidence before us that the
appellant tried to gag her mouth or overpower the deceased
in any other manner so as to facilitate the pouring of acid on       B
her by the accused no.1. Had the appellant shared an intention
common with the accused no.1 to kill the deceased by throwing
acid on her, it would have been manifest in his conduct which
would certainly have been something more than him being just
a mute spectator to the whole incident.                              c
     17. Thus, in absence of any active role played by the
appellant or overt act being done by the appellant, it cannot be
said with certainty that the appellant had accompanied the
accused no.1 to the house of the deceased with a common
intention to murder the deceased. In view thereof, the conviction    D
of the appellant under Section 302 read with Section 34 IPC
cannot be sustained.

      18. However, keeping in mind the facts that the deceased
had turned down the sexual advances made by the appellant            E
and that he had accompanied the accused no.1 who was
carrying a vessel containing acid in his hand at the dead of the
night and in an unearthly hour, it can be said with certainty that
the appellant had the intention to inflict bodily harm on the
deceased otherwise the appellant would not have                      F
accompanied the accused no.1 to the house of the deceased.
Since the appellant was present at the scene of occurrence and
simply watched the accused no.1 throwing acid on the
deceased without preventing the accused no.1 from doing so
clearly establishes that the appellant had intended to cause         G
injury to and also disfigurement of the deceased and as such
is liable to be punished under Section 326 IPC. Also since the
appellant could be said to be possessing knowledge that the
throwing of acid is likely to cause death of the deceased, a casff
under Section 304 part II is also made out. The appellant has
                                                                     H
    450      SUPREME COURT REPORTS                 [2010) 1 S.C.R.


A already served rigorous imprisonment for a period of seven
  years. Considering the facts that the death ensued after twenty
  six days of the incident as a result of septicemia and not as a
  consequence of burn injuries, we are of the considered view
  that the period already undergone by the appellant would be
8 sufficient to meet the ends of justice. We, therefore, partly allow
  thE~ appeal to the aforesaid extent and direct that the appellant
  be released forthwith if not wanted in connection with any other
  case.

    8.8.8.                                   Appeal partly allowed.