Subhash Singh And Others vs State

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 212 of 1986
Subhash Singh and others
…..Appellant(s)
Versus
State
…..Respondent(s)
Counsel for Appellant(s) : Ajay Kumar Pandey(ac),
K.d.awasthi, S.m.
Chaturvedi, S.m. Dayal
Counsel for
Respondent(s)
: A.G.A.
Court No. - 93 AFR
Reserved On 2.7.2026
Delivered On 29.7.2026
HON'BLE SANTOSH RAI, J.
1. Heard Sri Ajay Kumar Pandey, learned Amicus Curiae
for the appellant nos.1,3; Sri Purushottam Maurya, learned
AGA for the State and perused the material on record.
2. Three accused appellants have filed the instant
appeal in the year 1986, but when the matter is taken up
for hearing today, we were informed that one of them
namely, Shanti has already died, hence the appeal qua him
has already abated. The surviving appellants are Subhash
Singh and Sher Singh.
3. The present appeal has been preferred by the
appellants to set aside the judgment and order dated

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CRLA No. - 212 of 1986
6.12.1985 passed by the II Additional Sessions Judge,
Rampur, in Sessions Trial No.142 of 1984 (State Vs.
Subhash Singh & Ors.), under Section 376/34 IPC, Police
Station Tanda, District Rampur, whereby the accused
appellants have been convicted and sentenced to five
years rigorous imprisonment under Section 376/34 IPC.
4. The prosecution case, briefly stated, is that on
14.3.1984 the prosecutrix Smt. Rafeeqan (P.W.2) and her
brother's daughter Kumari Nayab Jahan (P.W.3) had gone
to the jungle of village Badli to collect dry leaves from the
grove of Vishnu Autar, where the five accused persons,
who were tending their cattle nearby, are alleged to have
surrounded the two girls. It is alleged that accused
Preetam and Shanti caught hold of Smt. Rafeeqan and
threw her into a pit, while accused Pooran and Sher Singh
similarly overpowered Kumari Nayab Jahan. Accused
Preetam is alleged to have cut the naara of the shalwar of
Smt. Rafeeqan with a knife and committed rape upon her,
appellant Subhash Singh and Shanti having pressed her
mouth and hands. Accused Pooran is alleged to have
committed rape upon Kumari Nayab Jahan, appellant Sher
Singh having assisted in overpowering her and standing
guard. The alarm raised by the victims attracted P.W.1
Amir Ahmed, brother of P.W.2 and father of P.W.3,
whereupon the accused persons fled. A first information
report was lodged the same day, and after investigation,
charge-sheet was submitted against all five accused
persons.
5. The learned trial court, upon appreciation of the
ocular testimony of P.W.1 Amir Ahmed, P.W.2 Smt.
Rafeeqan and P.W.3 Kumari Nayab Jahan, read with the

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CRLA No. - 212 of 1986
medical evidence of P.W.5 Dr. S.C. Gupta and P.W.6 Dr.
(Mrs.) Sheela Khanna, held that the prosecution had
proved beyond reasonable doubt that accused Preetam
committed rape upon Smt. Rafeeqan and accused Pooran
committed rape upon Kumari Nayab Jahan, and that the
appellants Subhash Singh and Shanti had, in furtherance
of the common intention to facilitate the commission of
rape upon Smt. Rafeeqan, caught her hands and pressed
her mouth, while appellant Sher Singh had similarly
assisted in facilitating the rape upon Kumari Nayab Jahan
and stood guard to warn his companions of any danger.
The trial court accordingly convicted the appellants with
the aid of Section 34 IPC.
6. Learned Amicus Curiae for the appellants has assailed
the impugned judgment on the following grounds: (i) that
the statements of P.W.2 and P.W.3 are riddled with material
contradictions regarding the specific role attributed to each
accused, rendering their testimony unsafe for conviction;
(ii) that no specific overt act constituting rape has been
attributed to the appellants, who were, at best, alleged to
have facilitated the commission of the offence by the
principal accused; (iii) that no independent role has been
assigned to appellant Sher Singh, who was merely alleged
to be "standing guard", which cannot by itself found a
conviction with the aid of Section 34 IPC; (iv) that the
medical evidence, particularly the finding of an intact
hymen in respect of Kumari Nayab Jahan, is inconsistent
with the prosecution case of rape by five persons; and (v)
that the FIR and the testimony of P.W.1, being interested
witnesses, ought not to have been relied upon, more
particularly in view of the affidavit dated 30.3.1984

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CRLA No. - 212 of 1986
wherein P.W.1 had alleged that all five accused persons
had committed rape upon both the prosecutrix turn by
turn, a version at variance with the case set up at trial.
7. Having heard learned counsel for the parties and
perused the record, we find no merit in these submissions.
It is well settled that the testimony of a prosecutrix, if
found to be trustworthy, does not require corroboration as
a rule of law, and minor discrepancies arising out of the
rustic, illiterate background of the witnesses, or the trauma
and passage of time, cannot be treated as fatal to the
prosecution case.
8. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat,
(1983) 3 SCC 217, Honble Supreme Court held in para 11
as under:-
“11……...We are therefore of the opinion that if the evidence
of the victim does not suffer from any basic infirmity, and
the “probabilities factor” does not render it unworthy of
credence, as a general rule, there is no reason to insist on
corroboration except from the medical evidence, where,
having regard to the circumstances of the case, medical
evidence can be expected to be forthcoming, subject to
the following qualification : Corroboration may be insisted
upon when a woman having attained majority is found in a
compromising position and there is a likelihood of her having
levelled such an accusation on account of the instinct of self-
preservation. Or when the “probabilities factor” is found to
be out of tune.”
9. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
Honble Apex Court held in para 21 as under:-
“21. Of late, crime against women in general and rape in
particular is on the increase. It is an irony that while we are
celebrating woman's rights in all spheres, we show little or
no concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the violation
of human dignity of the victims of sex crimes. We must
remember that a rapist not only violates the victim's privacy
and personal integrity, but inevitably causes serious
psychological as well as physical harm in the process. Rape

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CRLA No. - 212 of 1986
is not merely a physical assault — it is often destructive of
the whole personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very soul
of the helpless female. The courts, therefore, shoulder a
great responsibility while trying an accused on charges of
rape. They must deal with such cases with utmost
sensitivity. The courts should examine the broader
probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the
statement of the prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement
in material particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it may
look for evidence which may lend assurance to her
testimony, short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be sensitive
while dealing with cases involving sexual molestations.”
10. Thus, in the light of principle laid down in above
cases, the trial court has, in my view, correctly appreciated
the ocular testimony of P.W.2 and P.W.3 by separating the
core of their statements, namely, that they were forcibly
waylaid, thrown into a pit, and ravished, from the
embellishments and exaggerations natural to young,
agitated victims giving evidence of a traumatic sexual
assault before a court of law. The consistent thread
running through the statements of P.W.1, P.W.2 and P.W.3,
namely that accused Pooran raped Kumari Nayab Jahan
and accused Preetam raped Smt. Rafeeqan while the
remaining three accused persons facilitated and stood
guard, has rightly been accepted by the trial court as the
reliable core of the prosecution case.
11. Section 34 of the Indian Penal Code embodies the
principle of joint or constructive liability. It is not a
substantive offence but a rule of evidence and

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CRLA No. - 212 of 1986
interpretation which provides that when a criminal act is
committed by several persons in furtherance of the
common intention of all, each of them is liable for the
entire act as if he alone had committed it. The law proceeds
on the principle that where two or more persons act
together to achieve a common unlawful object, the act of
one becomes the act of all. Once common intention and
participation are proved, it is not necessary to determine
the precise role played by each accused in causing the final
result. In such a situation, the responsibility is common
because the intention is common. For attracting Section
34 IPC, the prosecution must establish not only the
existence of a common intention but also the participation
of the accused in the commission of the crime. Such
participation may be active or even passive, provided it is
intended to facilitate or advance the common design. Mere
presence at the place of occurrence, without sharing the
common intention or without participating in the
commission of the offence, is not sufficient to invoke
Section 34. The common intention may be formed before
the occurrence or even at the spot, and in most cases it
has to be inferred from the conduct of the accused, the
nature of the assault, their behaviour before, during and
after the incident, and the surrounding circumstances.
Thus, where the accused jointly participate in carrying out
the criminal act in furtherance of a shared intention, each
of them becomes equally liable for the offence committed.
12. On the question of constructive liability under Section
34 IPC, it is well settled that common intention may
develop on the spot and can be inferred from the conduct
of the accused, the manner of the assault, and the roles

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CRLA No. - 212 of 1986
played by each participant, and that it is not necessary that
an overt act of penetration be attributed to every person
sought to be convicted with its aid. In the present case,
the evidence establishes that appellants Subhash Singh
and Shanti caught hold of Smt. Rafeeqan and pressed her
mouth and hands to facilitate the rape upon her by accused
Preetam, and that appellant Sher Singh actively assisted
in overpowering Kumari Nayab Jahan and thereafter stood
guard to warn the other accused of any danger, thereby
enabling the commission of rape upon her by accused
Pooran. Such conduct is not that of a passive bystander
but reflects a shared, pre-arranged design to overpower
the two girls and facilitate their ravishment, squarely
attracting Section 34 IPC. The argument that no role can
be fastened on appellant Sher Singh merely because he
did not himself commit penetration is misconceived; one
who keeps watch to enable his companions to commit an
offence is as much a participant in the common intention
as the principal offender, on the time-tested principle that
"they also serve who only stand and wait”.
13. The submission founded on the medical evidence,
namely that the hymen of Kumari Nayab Jahan was found
intact and therefore rape could not have taken place, does
not assist the appellants. The Explanation to Section 375
IPC, as it stood at the relevant time, makes it clear that
penetration, howsoever slight, is sufficient to constitute
the sexual intercourse necessary for the offence of rape,
and rupture of the hymen is not a sine qua non for proving
the offence. The medical witness herself admitted the
possibility of partial penetration without rupture of the
hymen. This position has since been reiterated by the

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CRLA No. - 212 of 1986
Hon'ble Supreme Court, which has repeatedly held that the
absence of injuries or an intact hymen cannot, by itself, be
a ground to discredit an otherwise credible and consistent
testimony of a victim of sexual assault. In State of H.P. v.
Sanjay Kumar, (2017) 2 SCC 51 Honble Apex Court held
as under:-
“31…..By now it is well settled that the testimony of a victim
in cases of sexual offences is vital and unless there are
compelling reasons which necessitate looking for
corroboration of a statement, the courts should find no
difficulty to act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking corroboration
to a statement before relying upon the same as a rule, in
such cases, would literally amount to adding insult to injury.
The deposition of the prosecutrix has, thus, to be taken as
a whole. Needless to reiterate that the victim of rape is not
an accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an
injured witness does. If the court finds it difficult to accept
her version, it may seek corroboration from some evidence
which lends assurance to her version. To insist on
corroboration, except in the rarest of rare cases, is to equate
one who is a victim of the lust of another with an accomplice
to a crime and thereby insult womanhood. It would be
adding insult to injury to tell a woman that her claim of rape
will not be believed unless it is corroborated in material
particulars, as in the case of an accomplice to a crime.
Why should the evidence of the girl or the woman who
complains of rape or sexual molestation be viewed with the
aid of spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of corroboration
has no substance (See Bhupinder Sharma v. State of H.P.
[Bhupinder Sharma v. State of H.P., (2003) 8 SCC 551 :
2004 SCC (Cri) 31] )……....”
14. In Raju @ Umakant Vs. State of Madhya Pradesh
2025 8 SCC 281, Honble Supreme Court held in para
nos.22,23 as under:-
22. Further, in Ashok Kumar v. State of Haryana [Ashok
Kumar v. State of Haryana, (2003) 2 SCC 143 : 2003 SCC
(Cri) 446] , it was held as under: (SCC p. 146, para 8)

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CRLA No. - 212 of 1986
“8. Charge against the appellant is under Section
376(2)(g)IPC. In 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.
23. In view of this, it is very clear that in a case of gang rape
under Section 376(2)(g), an act by one is enough to render
all in the gang for punishment as long as they have acted in
furtherance of the common intention. Further, common
intention is implicit in the charge of Section 376(2)(g)
itself and all that is needed is evidence to show the existence
of common intention.”
15. Thus, in the light of principle laid down by the
Supreme Court in above case laws and fact and
circumstances in totality, I am of considered view that the
argument of the learned amicus curiae for the appellants
in this regard is very fake, hence liable to be rejected.
16. As regards the affidavit of P.W.1 dated 30.3.1984, the
trial court has rightly noted that the same appears to have
been sworn to oppose the bail application of the accused
persons and does not, by itself, discredit the substantive
testimony of P.W.1 recorded before the court on oath,
which is broadly consistent with the statements of P.W.2
and P.W.3 on the material particulars. The mere

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CRLA No. - 212 of 1986
relationship of P.W.1 with the victims, being the brother of
one and father of the other, cannot be a ground to discard
his testimony; rather, being a natural witness present at or
near the spot of occurrence who responded to the alarm
raised by the victims, his evidence inspires confidence and
is corroborative of the core prosecution case.
17. This Court may also usefully refer to the recent
pronouncement of the Hon'ble Supreme Court on the
approach to be adopted while dealing with offences of gang
rape and the appreciation of the collective culpability of
persons acting in concert. In Ehsaan v. State (NCT of
Delhi), 2026 SCC OnLine SC 1356, the Supreme Court held
in para 6.3 and 6.4 as under:-
6.3. In State of Karnataka v. Krishnappa (2000) 4 SCC 75
three-Judge Bench of this Court observed as follows to the
effect that a retributive view in cases involving the offence
of rape is entirely justified:
“18. …The measure of punishment in a case of rape
cannot depend upon the social status of the victim or
the accused. It must depend upon the conduct of the
accused, the state and age of the sexually assaulted
female and the gravity of the criminal act. Crimes of
violence upon women need to be severely dealt with.
The socio-economic status, religion, race, caste or
creed of the accused or the victim are irrelevant
considerations in sentencing policy. Protection of
society and deterring the criminal is the avowed
object of law and that is required to be achieved by
imposing an appropriate sentence. The sentencing
courts are expected to consider all relevant facts and
circumstances bearing on the question of sentence
and proceed to impose a sentence commensurate with
the gravity of the offence. Courts must hear the loud
cry for justice by the society in cases of the heinous
crime of rape on innocent helpless girls of tender
years, as in this case, and respond by imposition of
proper sentence. Public abhorrence of the crime needs
reflection through imposition of appropriate sentence
by the court. …”

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CRLA No. - 212 of 1986
The view above was referred to by a Bench of equal strength
in Shimbhu v. State of Haryana (2014) 13 SCC 318.
6.4. When a sentence is imposed on an offender, it is done
so with tri-fold purpose i.e. punitive, deterrent and
protective. The overall objective is to rid the society of
criminal proclivity. The same is done by ensuring that the
sentence imposed is proportional to the offence or in other
words not overly influenced by the possibility of reformation
and instead, striking a judicious balance between the
interest of the victim, society and the accused, after
following the due process of law. We have considered a
number of other judgments also inter-alia Allauddin Mian
v. State of Bihar (1989) 3 SCC 5; Navas v. State of Kerala
(2024) 14 SCC 82; Sevaka Perumal v. State of T.N (1991) 3
SCC 471; and Parsuram v. State of M.P.1 (2019) 8 SCC 382.
The following aspects reveal themselves when viewed from
the lens of imposition of sentence. It must:
(a) Be in accordance with the nature and gravity of the
crime;
(b) Adequately protect the interest of the society;
(c) Take into account the deterrent purpose of punishment;
(d) Consider the motive behind the crime, if any;
(e) Give due weight to the conduct of the accused;
(f) Examine whether the crime in question was pre-
meditated or not;
(g) Keep in view the age of the accused and whether he has
engaged in any similar offence in past for which he has been
duly convicted;
(h) Account for the number of victims of the offence;
(i) Not consider the religion, race, caste or creed of the
offender as a factor;
(j) Consider the possibility of reformation of the accused.
It is the duty of the State to establish that the same does
not exist; and
(k) The abuse of trust or misuse of personal relationship, if
any.
The facets identified by us above are illustrative and not
exhaustive. A holistic view of the entire case must be
taken in the attending facts of each case. Considering all
these factors among others, the foremost duty of the Court
is to assess the evidence in a given case; imposing just and
adequate punishment upon the accused.”

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CRLA No. - 212 of 1986
18. The Supreme Court in the above judgment, while
dealing with a conviction under Section 376D IPC (gang
rape), reiterated that sentencing in such cases must strike
a judicious balance between the interests of the victim, the
society and the accused, and that the testimony of the
prosecutrix, where clear, clinching and unwavering, is
sufficient to sustain a conviction without insisting on
corroboration in each and every particular. The Court
further emphasized that circumstances such as the
involvement of multiple accused acting with a shared
design to overpower and violate the victim aggravate the
offence, and that courts must remain alive to the trauma
and helplessness of victims subjected to sexual violence by
more than one person acting in concert. Though the said
decision arises under Section 376D IPC, a provision
introduced by the Criminal Law (Amendment) Act, 2013
and therefore not attracted to an offence of 1984, which
continues to be governed by Section 376(2)(g), the
underlying principles of appreciation of victim testimony
and collective culpability of persons acting in concert to
facilitate a sexual offence remain equally instructive and
apposite to the facts of the present case.
19. In this case at hand, the offence was committed in
1984, the applicable law was the Indian Penal Code, 1860
as it stood before the Criminal Law (Amendment) Act,
2013. The concept of “gang rape” existed, but in a more
limited form than today. The applicable provision was
Section 376(2)(g) IPC, which was inserted by the Criminal
Law (Amendment) Act, 1983 (Act 43 of 1983) and came
into force on 25 December 1983. Thus, for an offence
committed in 1984, Section 376(2)(g) IPC governed rape

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CRLA No. - 212 of 1986
committed by more than one person acting together.
Section 376(2)(g) Explanation 1 provided, in substance:-
”Where a woman is raped by one or more persons
constituting a group acting in furtherance of their common
intention, each of the persons shall be deemed to have
committed the offence of rape, irrespective of whether he
himself committed the act of penetration.”
20. This provision created a deeming fiction. Therefore
actual penetration by every accused was not necessary. If
the accused acted as a group in furtherance of their
common intention, every participant was legally guilty of
rape. It was a statutory application of the principle similar
to Section 34 IPC, specifically incorporated into the offence
of gang rape.
21. The punishment under Section 376(2) IPC, including
clause (g):-
“376.(2) (g)-Whoever commits gang rape,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may 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.”
22. The Court could impose a sentence of less than 10
years only for adequate and special reasons, which had to
be recorded in the judgment. Thus, the minimum
punishment was 10 years’ rigorous imprisonment, unless
the court recorded special reasons for awarding a lesser
sentence. The trial court has committed material legal
error in this regard, no specific reasons have been
recorded with the impugned judgment. Where the IPC
provision prescribes punishment in the form:”…shall be
punished with imprisonment … and shall also be liable to

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CRLA No. - 212 of 1986
fine”, or” …with imprisonment and fine”, the trial court is
expected to impose fine also. Failure to impose fine
amounts to an error in sentencing. It is true that the
learned trial court has committed an error in not imposing
the fine though the penal provision contemplates
punishment of imprisonment coupled with fine.
Nevertheless, the present appeal has been preferred only
by the convicted accused. Neither the State nor the victim
has preferred any appeal seeking enhancement of
sentence, nor has any revisional jurisdiction for
enhancement been invoked after due notice. Since
imposition of fine would undoubtedly amount to
enhancement of the sentence already awarded, this Court,
while deciding the appeal preferred by the accused alone,
cannot place him in a more disadvantageous position. The
omission of the trial court, though legally erroneous,
cannot therefore be rectified in the present appellate
proceedings.
23. Having regard to the foregoing discussion, we find
that the trial court has correctly appreciated the oral
testimony of the witnesses of fact, read with the medical
and other corroborative evidence on record, and has
rightly attributed distinct and specific roles to each of the
appellants in furtherance of the common intention to
facilitate the commission of rape upon the two victims, so
as to bring their case within the ambit of Section 376 read
with Section 34 IPC (gang rape) The findings recorded by
the trial court regarding conviction are well reasoned and
proper, being in consonance with the settled principles
governing appreciation of evidence in cases of sexual
assault, and call for no interference by this Court, at the

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CRLA No. - 212 of 1986
same time committed material legal error by not imposing
mandatory fine for the offence of rape. Furthermore no
adequate and special reason has been recorded in the
judgment for awarding sentence below the statutory limit
and excess leniency has been adopted by the Trial Court,
except as discussed above, no perversity, illegality or
infirmity has been shown in the impugned judgment
warranting interference in appeal.
24. For the reasons aforesaid, the appeal fails and is
hereby dismissed qua appellants Subhash Singh and Sher
Singh.
25. The conviction and sentence recorded by the II
Additional Sessions Judge, Rampur, vide judgment and
order dated 6.12.1985 in Sessions Trial No.142 of 1984 is
hereby affirmed in respect of appellants Subhash Singh
and Sher Singh.
26. The appellants Subhash Singh and Sher Singh, who
are on bail, shall surrender before the trial court within a
period of two weeks from today to serve out the remaining
sentence, failing which the trial court shall take coercive
steps including non bailable warrant, to secure their
custody in accordance with law.
27. The appellants shall be entitled to benefit under
Section 428 Cr.P.C.
28. Let trial court record along with copy of this judgment
be transmitted ‘forthwith’ to the court concerned for
information and necessary compliance.
29. The trial court is directed to submit its compliance
report within two months from the date of receipt of this

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CRLA No. - 212 of 1986
order. Further more, the registry is also directed to place
the compliance report on record.
30. The Registrar (Compliance) is also directed to serve a
copy of this order within two days by FAX/e-mail to the
trial court through District & Sessions Judge concerned for
compliance.
31. Let Sri Ajay Kumar Pandey, learned Amicus Curiae,
who has been appointed as Amicus Curiae in this case vide
order dated 5.12.2025 be paid remuneration of
Rs.25,000/-, within a period of two weeks from today.
32. Before parting with this judgment, this Court records
its appreciation for the sincere assistance rendered by the
Research Associates, Mr. Shivansh Pandey, Mr. Sandeep
Kumar Singh and Law Intern Ms. Ishika Rai, in researching
the legal issues involved and assisting in the preparation
of this judgment. Their efforts are gratefully
acknowledged.
(Santosh Rai,J.)
July 29, 2026
RA
Digitally signed by :-
RAZIQ ALI
High Court of Judicature at Allahabad