Bengai Mandal @ Begai Mandal vs State Of Bihar

Bengai Mandal @ Begai Mandal .... Appellant

Versus

State of Bihar .... Respondent

JUDGMENT

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 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 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-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 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 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 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 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

there and went out to look for the appellant and the

accused no.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 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.I.R.

under Sections 302, 326, 448, 323 read with Section 34

IPC was registered on the same day at 1 p.m.

6. After completion of the investigation, the police

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 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 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 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 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 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 II 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

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 below.

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.

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 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 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 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 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 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 identically similar. The acts may be different in character, 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:

"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 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 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 situation obtaining in each case."

(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

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

drawn; the criminal liability can arise only when such

inference can be drawn with a certain degree of assurance.

15. With the aforesaid legal position in mind, we have

considered the submissions made by the counsel for the

parties 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 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 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 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 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 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 common with the accused no.1 so that

he may be convicted under Section 302 IPC by invoking the aid of Section 34 IPC.

16. To find answer to this question, we need to revert back

to the dying declaration of the deceased. In her dying

declaration, the deceased has imputed the acts of entry into

her house and physical 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 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

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.

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 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

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 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 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 case under Section 304 part II

is also made out. The appellant has 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 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.

.................................J. [V.S. Sirpurkar]

...

.............................J. [Dr. Mukundakam Sharma]

January 11, 2010 New Delhi.

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