REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.     847         OF 2009 (Arising out of SLP(Crl.) No. 2207 OF 2008)

State of Rajasthan ….Appellant

Versus

Hemraj & Anr. ….Respondent                

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge  in this  appeal  is  to  the  order  passed  by a  learned  Single  Judge  of  the  

Rajasthan High Court,  Jaipur  Bench dismissing the  application for  grant  of leave to  question  

correctness  of  the  judgment  of  learned  Additional District  Sessions Judge  (Fast  track),  No.2  

Alwar.

3. Background facts in a nutshell are as follows:

Respondents were facing the trial for alleged commission of offence punishable under Section 342  

and 376(2) of the Indian Penal Code, 1860 (in short the ‘IPC’).  PW1 was the victim.  The trial  

court  noticed  that  it  was the  accused  Chandan who  committed  rape  on  her.   There  was no  

allegation of rape against the other accused persons namely Hemraj and Smt. Kamla.  The accused  

Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 (in short the ‘Juvenile

Act’).

The trial court as noted above held the accused Hemraj guilty of offence punishable under Section  

342 IPC and held that the Accused Kamla cannot be  convicted in terms of Section 376 (2) IPC.  

The State filed an appeal questioning acquittal of the respondent from the accusations relatable to  

Section 376(2) IPC.  The High Court  held that  so far as the accused Hemraj is concerned his  

presence at the spot was doubtful.  In any event both the respondents cannot be held guilty of  

offence punishable under Section 376(2) IPC.

4. Learned counsel for  the  appellant-State  submitted  that  scope  and ambit  of  Section  

376(2)(g) and the explanation appended thereto have been lost sight of by the High Court.  

5. Learned counsel for the respondent on the other hand submitted that the High Court  

rightly noted  that  the  presence  of  accused  Hemraj at  the  alleged time of  rape  has  not  been  

established.  Additionally, a lady i.e. respondent No.2 cannot be held guilty even in terms of the  

Explanation to Section 376 (2)(g) of the IPC.

6. In order to appreciate rival submissions Sections 375 and 376 need to be noted. They  

so far as relevant read as follows:-

“375. Rape  

A  man  is  said  to  commit  "rape"  who,  except  in  the  case  hereinafter  excepted,  has  sexual  intercourse  with  a  woman  under  circumstances  falling  under  any  of  the  six  following  descriptions:--

First.—Against her will.

Secondly.—Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in  whom she is interested in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent  is given because she believes that  he is another man to  whom she is or  believes herself to  be  lawfully married.

Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of  mind or intoxication or the administration by him personally or through another of any stupefying  or unwholesome substance, she is unable to  understand the nature and consequences of that to  which she gives consent.

Sixthly.--With or without her consent, when she is under sixteen years of age.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence  of rape.

Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years  of age, is not rape.]

376. Punishment for rape

(1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be punished  with imprisonment of either description for a term which shall not be less than seven years but  which may be for life or for a term which may extend to ten years and shall also be liable to fine  unless the women raped is his own wife and is not under twelve years of age, in which cases, he  shall be punished with imprisonment of either description for a term which may extend to  two  years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment,  impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

xx xx xx xx xx

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but  which may be for life and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment,  impose a sentence of imprisonment of either description for a term of less than ten years,

Explanation  I.--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 within the meaning of this sub-section.

x xx xx xx xx”

7. A bare reading of Section 375 makes the position clear that rape can be committed only  

by a man.  The section itself provides as to  when a man can be said to  have committed rape.  

Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract  

more severe punishment.  One of them relates to “gang rape”.  The language of sub-section(2)(g)  

provides that “whoever commits  ‘gang rape” shall be punished etc. The Explanation only clarifies  

that when a woman is raped by one or more in a  group of persons acting in furtherance of their  

common intention each such person shall be deemed to have committed gang rape within this sub-

section  (2).   That  cannot  make  a  woman  guilty  of  committing  rape.   This  is  conceptually  

inconceivable.  The Explanation only indicates that when one or more persons act in furtherance of  

their common intention to  rape a woman, each person of the group shall be deemed to  have  

committed  gang rape.  By operation of the  deeming provision,  a  person who has not  actually  

committed rape is deemed to have committed rape even if only one of the group in furtherance of  

the common intention has committed rape. “Common intention” is dealt with in Section 34 IPC  

and provides that when a criminal act is done by several persons in furtherance of the common  

intention of all, each of such persons is liable for that act in the same manner as if it was done by  

him alone.  “Common intention”  denotes  action  in  concert  and  necessarily postulates  a  pre-

arranged plan, a prior meeting of minds and an element of participation in action. The acts may be  

different and vary in character,  but must be actuated by the same common intention, which is  

different from same intention or similar intention. The sine qua non for bringing in application of  

Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal  

act.  The expression “in furtherance of their common intention” as appearing in the Explanation to  

Section 376(2) relates to intention to commit rape.  A woman cannot be said to have an intention  

to  commit rape.   Therefore,  the  counsel for  the  appellant  is right  in her  submission that  the  

appellant cannot be prosecuted for alleged commission of the offence punishable under Section  

376(2)(g).  

8. The appeal is without merit, deserves dismissal, which we direct.

        .......................J. (Dr. ARIJIT PASAYAT)

.................................J. (ASOK KUAMR GANGULY)

New Delhi, April 27, 2009