Active participation in the activity of gang rape can make an individual equally responsible and guilty of the offence of gang rape, even if they did not physically commit the rape.

A.B. Chaudhari, J.

1. Being aggrieved by the Judgment and Order dated 22nd June, 2012, passed by learned Additional Sessions Judge-1, Amravati in Sessions Trial No. 165 of 2010 by which the appellant - Accused No. 2 -- Jalandar was convicted of offence punishable under Section 376(2)(g) of Indian Penal Code, and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 1,000/- in default further Rigorous Imprisonment for two months the appellant filed the present appeal before this Court. In support of the appeal, learned counsel for the appellant submitted that it is the case of the prosecution itself that the present appellant accused Jalandar did not commit any rape on the prosecutrix 'V' and that he was only with the principal accused Rauf Khan son of Noor Khan who in fact committed rape and he has been convicted by Additional Sessions Judge - 1 Amravati by Judgment and Order dated 6th January, 2014 and Imprisonment for Life has been imposed on him. According to the learned counsel for the appellant the question of holding the appellant guilty of the offence of gang rape, therefore, did not arise since there is no overt action the part of appellant and therefore, he should have been acquitted of the charge levelled against him. He submitted that the appellant could not be convicted by virtue of the definition of the 'gang rape' under Section 376 (2) (g) of Indian Penal Code, looking to the alleged role played by the appellant only of waiting outside the room where the rape was being committed by the principal accused Rauf Khan. He therefore, submitted that the appellant could not be held guilty of the offence of gang rape.

2. Per contra, learned APP for the State supported the impugned Judgment and Order and submitted that though it is true that the appellant did not physically commit rape on the victim 'V' looking to the previous background so also the evidence on the date of incident of rape and the participation of the appellant, no error has been committed by the Trial Judge in convicting him of the offence of gang rape. He, therefore, prayed for dismissal of the appeal.

3. I have carefully perused the evidence of all the witnesses that was tendered by the prosecution before Trial Judge with the assistance of the learned counsel for the rival parties. I have perused the reasons recorded by the learned Trial Judge for convicting the appellant-accused.

4. The evidence of the witnesses clearly established that the accused Rauf Khan committed rape on the prosecutrix ' V, who was mentally ill in the room at the village which was in the possession of Gram Panchayat. As a matter of fact, the counsel for the appellant did not and, in fact, could not assail the evidence so far as commission of actual rape is concerned, because the evidence does not relate to appellant about the actual incident of rape. However, so far as the appellant is concerned, he was an active participant with Rauf Khan right from the beginning till the offence of rape was completed and that evidence was relevant in so far as the present appellant Jalandar is concerned. The evidence of the witness about the role played by Jalandar the present appellant, is crucial to find out whether he can be held responsible as an accused for commission of gang rape within the meaning of definition of 'gang rape.' I quote the evidence of Vilas Madar [PW1] in this context in relation to the role of Jalandar along with Rauf Khan, the main accused, which reads thus:--

"...............................In our village a mad woman was roaming around. Raufkhan and Jalandar said that they will treat Vimal. The villagers agreed for the same. We villagers collected contribution for the treatment of Vimal. There is a water pump of water supply in front of my house. There is one room. In that room Jalandar Wadekar and Raufkhan had started Pooja for treatment. Myself and other villagers were present outside the room. After some time Jalandar came out of the