Bengai
Mandal @ Begai Mandal Vs. State of Bihar [2010] INSC 27 (11 January 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1418
OF 2004 Bengai Mandal @ Begai Mandal .... Appellant Versus State of Bihar ....
Respondent
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.
10.The counsel appearing on behalf of the respondent- State, on
the other hand, supported the decisions of the courts below.
11.
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
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