REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1215 OF 2006

RAMESH                  …. APPELLANT

   Versus

STATE OF MADHYA PRADESH           .... RESPONDENT

O R D E R

1. Appellant  aggrieved  by  his  conviction  for  the  offence  

under Section 363, 366, 342 and 376(2)(g) of the Indian Penal  

Code and sentence to undergo rigorous imprisonment for the  

period  of  five  years,  five  years,  one  year  and  ten  years  

respectively and fine, has preferred this appeal with the leave  

of the Court.

2. According to the prosecution PW.1, Radha Bai, the victim  

of the crime along with her two sisters, namely, Sunita and  

PW.4, Anita had gone to witness a movie in a video-hall  at  

21:00 hours on 8th November,  1988.  In the midnight,  while  

Radha Bai came out of the hall to answer the call of nature

and  went  in  a  lane  at  that  point  of  time  the  two  accused  

namely, Ramesh (appellant herein) and Dinesh caught her and  

took her forcibly inside a tailoring shop and closed its doors.  

Sunita  and  Anita,  the  two  sisters  of  the  victim  Radha  Bai  

returned to their house and when it was found that she had  

not reached her home, a search was made to locate her by  

PW.3, Damaji, the father of the victim girl and other witnesses.  

Damaji suspected the presence of her daughter in the tailoring  

-shop of appellant Ramesh as the said tailoring shop had not  

so far opened and Dinesh and Ramesh were talking outside  

the shop.  Informant-Ramesh, according to the prosecution,  

went to the said shop, peeped inside and saw the victim there.  

Informant  asked  the  appellant  and  the  accused  Dinesh  to  

open the shop but they declined. The informant gave report in  

regard to the incident to the Officer-Incharge of  the Sausar  

Police  Station  at  09:00  hours  on  9th November,  1988.  

According to the informant Radha Bai  aged about 15 years  

had been kidnapped and confined in the tailoring shop styled  

as “Famous Tailors”.  After registration of the case, the Sausar  

Police along with the informant and others came to the shop  

2

and in their presence accused Dinesh unlocked the shop and  

the victim was recovered from the said shop.  She was first  

taken to the Police Station and thereafter sent to the Hospital  

for  medical  examination  where  she  was  examined  by  Dr.  

Paramjit  Kaur.   She  was  also  examined  by  PW.9,  Dr.  S.K.  

Dubey to ascertain her age.  Appellant as also accused Dinesh  

after arrest were sent for their medical examination and as per  

the  report  (Exhibit  P-6 and P-7)  of  Dr.  R.  Agarwal,  both of  

them were found to be capable of sexual intercourse. The cloth  

of victim and both the accused were seized and sent to the  

Forensic  Science  Laboratory  which  sent  its  report  

(Exhibit P.13).

3. After  usual  investigation  the  Police  submitted  charge-

sheet against the two accused, namely, appellant Ramesh and  

Dinesh and they were ultimately  committed to the Court of  

Sessions to face the trial. Both of them pleaded not guilty to  

the  charge  and  claimed  to  be  tried.   Specific  plea  of  the  

appellant herein is that he handed over the key of the shop to  

the accused Dinesh for white-washing and he had no concern  

whatsoever with the occurrence.   

3

4. Prosecution  in  order  to  bring  home  the  charge  had  

altogether examined nine witnesses besides a large number of  

documentary  evidence  were  exhibited,  which  included  the  

report (Exhibit  P-4)  of  Dr.  Paramjit  Kaur who examined the  

victim, report (Exhibit P-15) of PW.9, Dr. S.K. Dubey in regard  

to the age of the victim, reports (Exhibits P-6 and P-7) of Dr. R.  

Agarwal  regarding capability  of  the  accused of  doing sexual  

intercourse  and  the  report  (Exhibit  P-13)  of  the  Forensic  

Science Laboratory.  

5. On appraisal  of  the oral and documentary evidence on  

record the trial court came to the conclusion that the victim  

was below 16 years of age on the date of occurrence. Further  

after she was kidnapped and confined in the tailoring-shop by  

both the accused it also held that accused Dinesh had sexual  

intercourse with her. Accordingly it convicted both of them for  

offence  under  Section  363,  366,  342  and  376  (2)(g)  of  the  

Indian Penal  Code and sentenced them to various terms of  

imprisonment,  which  were  directed  to  run  consecutively.  

Appellant was convicted of the offence under Section 376(2)(g)  

4

of the Indian Penal Code taking into account the explanation  

appended thereto.

6. Appellant Ramesh as also the convict Dinesh aggrieved  

by their conviction and sentence preferred separate appeals.  

Both  the  appeals  were  heard  together  and  by  a  common  

judgment the High Court of Madhya Pradesh dismissed both  

the  appeals  affirming  the  finding  of  the  trial  court.   The  

appellate court, however, set aside the order of the trial court  

directing the sentences to run consecutively and it observed  

that same would run concurrently.   

7. It is in these circumstances that the appellant is before us  

with the leave of the Court.

8. Mr.  P.P.  Singh,  learned  Counsel  appearing  for  the  

appellant submits that appellant Ramesh is the owner of the  

tailoring-shop and he is not involved at all in the occurrence.  

It has been pointed out that the key of the shop was handed  

over to the convict Dinesh by his nephew DW.1, Rakesh for  

white-washing in the eve of Deepawali Festival and he had no  

concern whatsoever with that.  It has been pointed out that  

5

according to the prosecution itself the shop was opened in the  

presence of the Police by the convict Dinesh and in this view of  

the matter the finding of guilt arrived at against this appellant  

is erroneous and fit to be set aside. Mr. Sidharth Dave, learned  

Counsel appearing on behalf of the State, however, supported  

the judgment of conviction and sentence.  

9. We do not find any substance in the submission of Mr.  

Singh. PW.1, Radha Bai, the victim in her evidence has stated  

that she had gone to witness a movie in the video-hall along  

with her two sisters Sunita and PW.4, Anita and in the midst  

of the show she came out of the hall to answer the nature’s  

call in a lane where the appellant and the convict caught her  

and forcibly brought her to the tailoring-shop.  She has further  

stated that convict  Dinesh closed the shop from inside and  

after removing her cloths subjected her to rape.  She further  

deposed that  appellant  Ramesh was present  there  and had  

pressed  her  breasts  and  in  the  course  of  ravishment  she  

attempted to raise alarm but nobody came to her rescue. The  

medical-report (Exhibit P-2) of Dr. Paramjit Kaur reveals that  

the victim had no mark of injury internal or external on her  

6

person  and  she  being  habitual  to  sexual  intercourse  no  

definite  opinion  of  rape  could  be  given.   The  report  of  the  

Forensic Science Laboratory, however, reveals the existence of  

human semen on the cloths of the victim and convict Dinesh.  

From the material aforesaid it is evident that the victim was  

kidnapped,  forcibly  brought  to  the  tailoring  shop  and  

subjected  to  rape  and  appellant  Ramesh  had  actively  

participated in the entire occurrence.

10. The plea of the appellant Ramesh that he had given the  

key of the shop to the convict Dinesh does not absolve him of  

the charge. Even if this defence of the appellant is accepted it  

does not  mean that  he  could not  go inside  the shop.   The  

victim has clearly stated the role played by this appellant and  

there  does  not  seem  any  earthly  reason  to  disbelieve  her  

statement.  Therefore, on the basis of the evidence on record it  

is evident that both the accused had acted in concert and in  

prearranged  plan  and  in  furtherance  of  their  common  

intention  without  permission of  the  lawful  guardians of  the  

victim  kidnapped  a  minor  with  the  object  of  illicit  sexual  

intercourse  with  her,  kept  her  in  detention  and  ultimately  

7

subjected to rape.  Therefore, the plea of the appellant that he  

has nothing to do with the occurrence is fit to be rejected.   

11. Mr. Singh, then contends that conviction of the appellant  

for offence under Section 376(2)(g) of the Indian Penal Code is  

bad as according to the  case of  the  prosecution  itself  this  

appellant  did  not  rape  the  victim.   In  this  connection  our  

attention has been drawn to the following finding of the High  

Court:

“Thereafter, in the facts and circumstances of this  case, read with the evidence on the record, it stands  established  that  PW-1  Radha  Bai  was  forcibly  brought from the place where she had gone for the  nature’s call to the said tailoring shop and she was  ravished  by  the  appellant  Dinesh  and  appellant  Ramesh had actively participated in the occurrence  though he  has himself  not  committed  any sexual  intercourse.”   

12. We do not find any substance in this submission of Mr.  

Singh  also.  It  is  not  the  case  of  the  prosecution  that  this  

appellant  himself  had  actually  committed  any  sexual  

intercourse  with  the  victim.   However,  the  case  of  the  

prosecution is that while  the victim had come out from the  

video-hall to answer the call of the nature she was picked up  

8

by both of them, forcibly taken inside the tailoring shop and  

subjected to rape by the convict Dinesh and at that time he  

was pressing her breasts. Explanation 1 to Section 376(2)(g)  

of  the  Indian Penal  Code,  inter  alia,  provides  that  where  a  

woman is raped by one or more in a group of persons acting in  

furtherance  of  their  common intention,  each of  the persons  

shall be deemed to have committed gang rape.   

13. This appellant had acted in concert with other accused  

and actively participated in the commission of crime.  Both of  

them in furtherance of their common intention kidnapped and  

confined the  victim in the tailoring-shop and thereafter  she  

was subjected to rape by co-accused and at that point of time  

this  appellant  was  present  and  pressing  her  breasts.  This  

clearly  shows  that  this  appellant  shared  the  common  

intention. Once it is held so, Explanation 1 to Section 376(2)(g)  

of the Indian Penal Code springs into action and brings the  

offence within the mischief of gang rape.  The fact that this  

appellant  had  not  actually  committed  sexual  intercourse  

would  not  absolve  him  from the  punishment  of  gang-rape.  

Reference in this connection can be made to a decision of this  

9

Court in the case of  Pramod Mahto and others v. State of  

Bihar, (1989) Supp.(2) SCC 672, wherein it has been held as  

follows:-

“10.  This  Explanation  has  been  introduced  by  the legislature with a view to effectively deal  with  the growing menace of gang rape. In such circum- stances,  it  is  not  necessary  that  the  prosecution  should adduce clinching proof of a completed act of  rape by each one of the accused “on the victim or on  each one of the victims where there are more than  one in order to find the accused guilty of gang rape  and convict them under Section 376 IPC.”

14. Similar view has been expressed by this Court in the case  

of  Pradeep Kumar v. Union Administration, Chandigarh,  

(2006) 10 SCC 608, in which it has been observed as follows:-

“10. To  bring  the  offence  of  rape  within  the  purview of Section 376(2)(g) IPC, read with Explana- tion 1 to this section, it is necessary for the prose- cution to prove:

(i) that more than one person had acted in con- cert with the common intention to commit rape on  the victim;

(ii) that more that one accused had acted in con- cert  in  commission  of  crime  of  rape  with  pre-ar- ranged plan,  prior  meeting of  mind and with ele- ment of participation in action. Common intention  would be action in concert in pre-arranged plan or a  plan formed suddenly at the time of commission of  offence which is reflected by the element of partici- pation in action or by the proof of the fact of inac- tion when the action would be necessary. The pros- ecution would be required to prove pre-meeting of  minds of the accused persons prior to commission  of offence of rape by substantial evidence or by cir- cumstantial evidence; and

(iii) that in furtherance of such common intention  one or more persons of the group actually commit-

10

ted offence of rape on victim or victims. Prosecution  is not required to prove actual commission of rape  by each and every accused forming group.

11. On proof of common intention of the group of  persons which would be of more than one, to com- mit the offence of rape, actual act of rape by even  one individual forming group, would fasten the guilt  on other members of the group, although he or they  have not committed rape on the victim or victims.”

Hence, we reject this submission of  Mr. Singh.

15. We  accordingly  find  no  merit  in  this  appeal  and  it  is  

dismissed accordingly. The appellant is on bail, his bail bonds  

are cancelled and he is directed to surrender forthwith to serve  

out the sentence.  

……….………………………………..J.                               ( HARJIT SINGH BEDI )

..........………………………………..J.                                           ( CHANDRAMAULI KR. PRASAD )

NEW DELHI, DECEMBER 15, 2010.

11

12