REPORTABLE  

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

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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