2010 Supreme(SC) 43

2010 (1) Supreme 49
SUPREME COURT OF INDIA
V.S. Sirpurkar and Dr. Mukundakam Sharma, JJ.
Bengai Mandal @ Begai Mandal — Appellant
versus
State of Bihar — Respondent
Criminal Appeal No. 1418 of 2004
Decided on : 11-01-2010

IMPORTANT POINT
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 of IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.

Headnote:Indian Penal Code,1860 – Sections 302 read with Section 34, 326, 452 ,324 – Prosecution of appellant along with accused1 for throwing acid over deceased and for burning her body with the intent to kill her – Conviction by Trial Court – Appeals thereagainst – Dismissed by High Court – Appeal – In her dying declaration, deceased 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 had been imputed to the appellant by deceased – No evidence that 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 – Thus, in absence of any active role played by appellant or overt act being done by the appellant, it could not 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 held unsustainable – However, keeping in mind the facts that deceased had turned down sexual advances made by appellant and that he had accompanied accused no.1 who was carrying a vessel containing acid in his hand at the dead of night and in an unearthly hour, it could be said with certainty that appellant had intention to inflict bodily harm on the deceased otherwise the appellant would not have accompanied the accused no.1 to the house of 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 established that appellant had intended to cause injury to and also disfigurement of deceased and as such was liable to be punished under Section 326 IPC. – Also since the appellant could be said to be possessing knowledge that the throwing of acid was likely to cause death of deceased, a case under Section 304 part II was also made out – The appellant had already served rigorous imprisonment for a period of seven years – Considering the facts that the death ensued after twenty six days of incident as a result of septicemia and not as a consequence of burn injuries, held that the period already undergone by appellant would be sufficient to meet the ends of justice – Appeal partly allowed to the said extent. (Paras 15 to18)

        Indian Penal Code,1860 – Section 34 – Common intention – 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 – Hence , 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. (Para 14)

       Facts of the Case :

        Appellant along with accused1was prosecuted herein in the instant case for throwing acid over deceased and for burning her body with the intent to kill her. Trial Court convicted appellant along with accused1 for said offences. Appeals thereagainst were dismissed by High Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        In her dying declaration, deceased 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 had been imputed to the appellant by deceased. It had also not come in evidence that 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. Thus, in absence of any active role played by appellant or overt act being done by the appellant, it could not 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 was held unsustainable. 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 could be said with certainty that appellant had intention to inflict bodily harm on the deceased otherwise the appellant would not have accompanied the accused no.1 to the house of 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 deceased and as such was liable to be punished under Section 326 IPC. Also since the appellant could be said to be possessing knowledge that the throwing of acid was likely to cause death of deceased, a case under Section 304 part II was also made out. The appellant had already served rigorous imprisonment for a period of seven years. Considering the facts that the death ensued after twenty six days of incident as a result of septicemia and not as a consequence of burn injuries, held that the period already undergone by appellant would be sufficient to meet the ends of justice. Appeal was partly allowed to said extent.