Judgment:-

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 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. 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.

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 applicati