BENGAI MANDAL @ BEGAI MANDAL versus STATE OF BIHAR

Citation: [2010] 1 S.C.R. 439 · Decided: 11-01-2010 · Supreme Court of India · Bench: V.S. SIRPURKAR · Disposal: Case Partly allowed

Judgment (excerpt)

[2010] 1 S.C.R. 439 
BENGAi MANDAL @ BEGAI MANDAL 
v. 
STATE OF BIHAR' 
(Criminal Appeal No. 1418 of 2004) 
JANUARY 11, 2010 
[V.S. SIRPURKAR AND DR. MUKUNDAKAM · 
SHARMA, JJ.) 
Penal Code, 1860: 
A 
B 
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 
8 
to kill her. entered into her house at night and poured 
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 carri

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