Full Judgment Text
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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.