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CASE NO.: Appeal (crl.)  434 of 2005

PETITIONER: PARDEEP KUMAR

RESPONDENT: UNION ADMINISTRATION, CHANDIGARH

DATE OF JUDGMENT: 18/08/2006

BENCH: B.N. AGRAWAL & P.P. NAOLEKAR

JUDGMENT: JUDGMENT

P.P. Naolekar, J. :

       Accused Lalit Gupta, Ashok Kumar alias Babbu, Pardeep  Kumar and  Karam Chand were tried under Sections 366,  376,  whereas accused-Inderjit Singh was tried under Section  376 read with Section 109 and Section 368 of the Indian Penal  Code, 1860 (for short "IPC").  All the five accused were held  guilty under Section 376, IPC by the Additional Sessions  Judge, Chandigarh and sentenced to undergo rigorous  imprisonment for 10 years and to pay fine of Rs.500/- each  and in default of payment of fine to undergo further rigorous  imprisonment of two months.  The accused preferred appeals  before the High Court of Punjab & Haryana at Chandigarh.   Ashok Kumar and Karam Chand died during pendency of  proceedings; Inderjit Singh was acquitted of the charge under  Section 376, IPC, while the conviction of Lalit Gupta and  Pardeep Kumar under Section 376, IPC was upheld by the  High Court.  Against the impugned judgment, accused-  Pardeep Kumar has preferred this appeal by special leave.         The prosecution case as set out in the First Information  Report (FIR) is that the prosecutrix was living in House No.  3359, Sector 19D, Chandigarh with her brother and mother.   Accused-Lalit Gupta was after her and also promised to marry  her.  On 2nd February, 1987 at about 6.30 p.m., the  prosecutrix had gone to the market of Sector 19.  Accused-  Lalit Gupta met her in the market and invited her to the house  of his cousin so that the proposal regarding marriage could be  discussed with his relations.  On this, the prosecutrix agreed  to accompany him to Sector 38, Chandigarh.  Lalit Gupta  hired a three-wheeler scooter (auto-rickshaw) and they  proceeded towards Sector 38.  In the midway, the auto- rickshaw was got stopped by Lalit Gupta and accused-Ashok  Kumar alias Babbu also boarded the auto-rickshaw.   When  the prosecutrix, Lalit Gupta and Ashok Kumar entered the  house, another accused-Inderjit Singh, who was acquitted by  the High Court, met them there.  The three accused then  consumed liquor in the house.  When the advances made by  the accused were resisted, accused-Inderjit Singh threatened  her with dire consequences of death and thereafter she yielded  to the wishes of the accused persons.  Thereafter, Lalit Gupta  committed rape on the prosecutrix against her wish and  without her consent which was followed by Ashok Kumar who  also defiled her.  Thereafter, Karam Chand and Pardeep  Kumar arrived there and they also committed rape.  All of  them started taking liquor in another room, taking advantage,   the prosecutrix escaped from the house.  On the way, she met  police personnel to whom she narrated the whole incident.  

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The police came to the house and apprehended Pardeep  Kumar, Karam Chand and Lalit Gupta, but two other accused  Ashok Kumar and Inderjit Singh managed to escape.  The FIR  was lodged on the intervening night of 2nd & 3rd February,  1987 with Sub-Inspector Moti Ram at about 2.20 a.m.  The  prosecutrix was unmarried at the time of incident, and she  was sent for medical examination.  Dr. G.K. Dhillon examined  her on 3rd February, 1987 at 1.30 p.m. and found no evidence  of any external injury.  The doctor also opined that she was  habitual to sexual intercourse.         The High Court, inter alia, has upheld the conviction of  the accused-appellant Pardeep Kumar for the offence under  Section 376, IPC relying on the version of the prosecutrix  supported by the testimony of Constable Raghubir Singh to  whom she had narrated the entire incident soon after her  escape from the place of occurrence.  The High Court has  observed that the presence of the accused-appellant on the  spot where the rape was committed by other accused persons,  was further corroborated by the fact that he was apprehended  from that house itself by CRPF jawans.         It was submitted before us by Mr. K.T.S. Tulsi, learned  senior counsel for the appellant that the High Court  committed an error in convicting the accused-appellant under  Section 376, IPC when the statement of the prosecutrix before  the court completely exonerated him from the commission of  offence of rape by deposing that only two accused persons,  namely, Karam Chand and Ashok Kumar, defiled her against  her wish and consent; and that she had further stated that the  other accused could not have sexual intercourse with her  because getting a chance she opened the bolt of the room and  ran away from the house.  It was submitted that on the face of  the above statements of the prosecutrix, the accused-appellant  Pardeep Kumar could not have been convicted.         On the other hand,  Ms. Kamini Jaiswal, learned counsel  for the State submitted that the accused-appellant, although  had not actually committed rape on the prosecutrix, was  rightly convicted under Section 376,  IPC, as it was amply  proved by the prosecution that the appellant was a member of  the group which acted in concert to commit rape on the  prosecutrix and in furtherance of the common intention, rape  was committed.    Thus, the submission of the learned counsel  for the State is that by virtue of Explanation 1 to Section  376(2)(g), IPC, all members of a group would be liable for the  acts committed by other members of that group when the act  is committed in furtherance of their common intention,  namely, intention to commit rape.               In order to appreciate the arguments advanced by the  learned counsel appearing on both sides, it would be  appropriate for us to extract the relevant provisions of Section  376, IPC,  as under:

"376. Punishment for rape.- xxx                             xxx                                xxx         (2) Whoever, - 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 \005\005 Explanation 1.- 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

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rape within the meaning of this sub-section."

               In Ashok Kumar v. State of Haryana, (2003) 2 SCC  143, this Court observed :

"8. \005In order to establish an offence under Section  376(2)(g) IPC,  read  with Explanation I  thereto,  the  

prosecution must adduce evidence to indicate that  more than one accused had acted in concert and in  such an event, if rape had been committed by even  one, all the accused will be guilty irrespective of the  fact that she had been raped by one or more of  them and it is not necessary for the prosecution to  adduce evidence of a completed act of rape by each  one of the accused. In other words, this provision  embodies a principle of joint liability and the  essence of that liability is the existence of common  intention; that common intention presupposes prior  concert which may be determined from the conduct  of offenders revealed during the course of action  and it could arise and be formed suddenly, but,  there must be meeting of minds. It is not enough to  have the same intention independently of each of  the offenders. In such cases, there must be criminal  sharing marking out a certain measure of jointness  in the commission of offence."

In Bhupinder Sharma v. State of Himachal Pradesh,  (2003) 8 SCC 551, the observations made by an earlier Bench  in Pramod Mahto and Others v. State of Bihar, 1989 Supp.  (2) SCC 672, were reiterated by this Court as follows:

"14. In cases of gang rape the proof of completed act  of rape by each accused  on the victim is not  required.  The statutory intention in introducing  Explanation I in relation to Section 376(2)(g) appears  to have been done with a view to effectively deal with  the growing menace of gang rape. In such  circumstances, 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."

In a recent decision in Priya Patel v. State of M.P. and  Anr., JT 2006(6) SC 303, this Court has observed as follows:

"8. \005By 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,

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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.  \005\005"

To bring the offence of rape within the purview of Section  376(2)(g), IPC, read with Explanation 1 to this Section, it is  necessary for the prosecution to prove:-

(i)     that more than one person had acted in  concert with the common intention to commit   rape on the victim ; (ii)    that more that one accused had acted in  concert in commission of crime of rape with  pre-arranged plan, prior meeting of mind and  with element of participation in action.   Common intention would be action in consort  in pre-arranged plan or a plan formed  suddenly at the time of commission of offence  which is reflected by element of participation  in action or by the proof of the fact of inaction  when the action would be necessary.  The  prosecution would be required to prove pre- meeting of mind of accused persons prior to  commission of offence of rape by substantial  evidence or by circumstantial evidence; and (iii)   that in furtherance of such common intention  one or more persons of the group actually  committed offence of rape on victim or victims.   Prosecution is not required to prove actual  commission of rape by each and every accused  forming group.  On proof of common intention of the group of persons  which would be of more than one, to commit 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. It is settled law that the common intention or the  intention of the individual concerned in furtherance of the  common intention could be proved either from direct evidence  or by inference from the acts or attending circumstances of the  case and conduct of the parties. Direct proof of common  intention is seldom available and, therefore, such intention  can only be inferred from the circumstances appearing from  the proved facts of the case and the proved circumstances.          In the light of the principles enumerated in the above- mentioned cases, we have to analyse the factual matrix of the  present case with regard to the accused-appellant’s conduct  and role played by him in the commission of offence.  The  prosecutrix while lodging the FIR had stated that the accused- appellant reached the spot after the rape had been committed  by Lalit Gupta and Ashok Kumar, but in her statement before  the court she deposed that on reaching  House No. 2451,  Sector 38C, Chandigarh, when she did not find parents of  accused-Lalit Gupta present in the house, she told accused-  Lalit Gupta that she would return to her home.   She also told  him that he had defrauded her.  On this, accused-Ashok

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dragged her inside the house and at the instance of Inderjit  Singh, Pardeep Kumar and Karam Chand came to the house.   Accused had also brought one person by name Bitu.    Accused-Karam Chand caught hold of her and raped her and,  thereafter Ashok caught hold of her and  committed rape  against her wish.  She stated that Pardeep,  Lalit and one  other person Bitu were taking liquor in the kitchen.  If we  believe the case of the prosecution that the accused-appellant  (Pardeep Kumar) was present at the spot right from the very  beginning along with other accused persons, Explanation 1 to  Section 376(2) would be attracted as it can be safely inferred  that all the accused persons acted in concert with a common  intention to commit rape even if all the accused person have  not actually committed rape.  But if statement of the  prosecutrix is considered as a whole with the FIR, it appears  that the accused-appellant entered the house after the rape  had been committed on the prosecutrix and thereafter he was  consuming liquor with Lalit Gupta and one Bitu, then his  mere presence would not be sufficient to find him guilty taking  aid of Explanation 1.  Although there has been some  probability of the accused-appellant’s presence at the place of  the commission of offence as he was apprehended from a place  nearby the spot of occurrence with the other accused persons,  namely, Lalit Gupta and Karam Chand, but mere presence at  such place is insufficient to show that there was a prior  concert or meeting of mind or plan formed suddenly at the  time of commission of offence by the accused-appellant with  the other accused persons for the commission of rape on the  prosecutrix.  The prosecutrix in her earlier version had  mentioned that the accused-appellant arrived late at the place  of incident and thereafter he was consuming liquor with the  other accused persons in a room.  Moreover, where specific  acts had been attributed to the other accused persons to show  their connivance and pre-concert to facilitate the offence in  pre-planned manner, no such act or conduct has been  attributed to portray the accused-appellant’s role in   furtherance of the common intention to commit rape.  The  prosecutrix in her statement before the court had categorically  stated that the accused-appellant had not defiled her and  nothing specific was mentioned about his conduct or role to  show that he shared the common intention to commit rape.   The prosecution did not produce any medical evidence to show  that he consumed liquor when accused-appellant was  available for such test as he  was alleged to have been arrested  immediately after the incident at the place of occurrence.  The  prosecutrix had changed her version from time to time.  She  began with  alleging commission of the offence of rape by all  the accused who faced trial, whereas in her deposition before  the court she stated that only Karam Chand and Ashok  Kumar had committed rape on her.   The statement of the  prosecutrix does not inspire confidence to reach to the  conclusion that the accused-appellant was present at the  place of incident right from the very beginning to infer any pre- concert of the appellant with other accused persons to commit  rape.  In these circumstances, we feel that the accused- appellant is entitled  to the benefit of doubt.         Hence, in the light of above discussion, we set aside the  order of the Session Court as also that of the High Court  convicting the accused-appellant under Section 376, IPC.  The  appeal is, accordingly, allowed.  The accused-appellant shall  be set at liberty forthwith if not required in any other case.