REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1186  OF 2001

Hanuman Prasad and Ors.  ….Appellants  

Versus

State of Rajasthan  ....Respondent

(With Crl.A. NO. 799 of 2002)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. In these  appeals,  challenge  is  to  the  judgment  of  a  learned  Single

Judge of the Rajasthan High Court at Jodhpur. Though the appellants were

acquitted by the trial Court, the High Court in appeal filed by the State of

Rajasthan directed  their  conviction  for  offence  punishable  under  Section

376(2)(g) of the Indian Penal Code, 1860 (in short the ‘IPC’) and each was

sentenced to undergo 10 years rigorous imprisonment and fine with default

stipulation. In all there were 8 accused persons. Three of them who were

convicted by the trial Court namely, Dhruvendra Singh, Shivmuni @ Babua

and  Sushil  Kumar   did  not  prefer  any  appeal  before  the  High  Court

questioning their conviction. However, the Trial Court acquitted the present

appellants and in appeal filed by the State their acquittal was set aside.  

2. Background facts, as projected by the prosecution, in a nutshell, are

as follows:

On 6.10.1997 at about 4.10 p.m. the prosecutrix (PW-6) daughter of

Nemchand  (PW-4)  lodged  a  report  Ex.P/9  before  Kan  Singh,  Dy.  SP,

Raisingh Nagar District Sri Ganganagar (PW-5) against 8 accused persons

and one Vinod Sachdeva stating inter-alia that her father Nemchand was

under the employment of Indian Agriculture Farm and she has two brothers

and one elder sister. It was further stated in the report that in the month of

April, 1996 when she was going to her house, accused persons encircled her

and took her forcibly to the house of accused Shivmuni who was Chowkidar

and when she tried to make hue and cry she was beaten by them and she was

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offered water and after drinking water she felt giddy and thereafter, she was

raped by accused Dhruvendra Singh and rest accused persons were flirting

with  her  and  when  she  came to  her  senses  they  told  her  that  what  had

happened and in case she would tell this incident to anybody, her brothers

would be killed. Thereafter, she came to her house. It was further stated in

the report  that  whenever she went to school,  all  accused persons used to

take her to the house of accused appellant Shivmuni and all accused persons

Nos.1 to 8 used to commit rape on her and this process remained continued

for many times.

It was further stated in the report that when she was perturbed she

was asked by her mother Panadevi (PW-3). Then she unfolded the whole

story to her  mother and then her  mother narrated the whole story to her

husband Nemchand (PW-4). It was further stated in the report that thereafter

they met Vinod Sachdeva, who told them that accused persons hailed from

high family and if they were enjoying with her, let them do so and he further

told  them  that  he  would  arrange  the  marriage  of  the  prosecutrix  with

accused Dhruvendra Singh. It was further stated in the report that to rule out

pregnancy  she  was  given  tablets  for  preventing  pregnancy  and  she  was

given Mala-D tablets also.

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This  report  was  sent  by  Kan  Singh  (PW-5)  to  Police  Station  Sri

Vijyanagar,  District  Sri  Ganganagar,  where  the  case  was  registered  and

regular FIR Ex.P-10 was chalked out and investigation was conducted by

Tajaram (PW-7)   

The High Court by the impugned judgment found that the acquittal so

far as the present appellants are concerned was not sustainable. It held that

because of broad language of Section 376(2)(g),  the appellants were also

liable to be convicted.  

3. Learned counsel for the appellants submitted that Section 376(2)(g)

has no application so far as the present appellants are concerned.  

4. In  order  to  bring  in  application  of  Section  376(2)(g)  common

intention to commit rape is necessary and the evidence of the prosecutrix in

court clearly shows that the appellants did not have any intention to commit

rape. In the statements  recorded in terms of Sections 161 and 164 of the

Code of Criminal Procedure, 1973 (in short the ‘Code’) also,  that was the

position.  

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

complete act is not necessary. Mere presence would be sufficient to bring in

application of Section 376 IPC.  

6. A bare reading of the entire evidence of the prosecutrix goes to show

that  the  appellants  were  not  involved  in  the  act  of  rape.  There  is  also

nothing on evidence to show that they shared common intention.  

7. The  important  expression  to  attract  Section  376(2)(g)  is  ‘common

intention’.  The essence of the liability in terms of Section 376 (2) is  the

existence of common intention. In animating the accused to do the criminal

act in furtherance of such intention, the principles of Section 34 IPC have

clear application. In order to bring in the concept of common intention it is

to be established that there was simultaneously consensus of the minds of

the  persons  participating  in  the  act  to  bring  about  a  particular  result.

Common intention  is  not  the  same or similar  intention.  It  presupposes  a

prior meeting and pre-arranged plan. In other words, there must be a prior

meeting  of  minds.  It  is  not  necessary  that  pre-consert  in  the  sense  of  a

distinct previous plan is necessary to be proved. The common intention to

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bring about a particular result may well develop on the spot as between a

number of persons which has to be gauzed on the facts and circumstances of

each case.  

8. In the instant case no evidence was led to show that the appellants

had  a  common  intention  of  committing  rape  on  the  victim.  This  aspect

unfortunately  has  been lost  sight  of  by the  High Court  though the  Trial

Court has elaborately dealt with this aspect.  

9. Above  being  the  position  the  conviction  as  recorded  by the  High

Court cannot stand and is set aside. Appeals are allowed. Appellants are on

bail.  Their bail bonds shall stand discharged.  

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

…….…………….……………….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, November 18, 2008

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