Point of Law: 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 offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence

JUDGMENT :

Vinod Chandran, J.

The prosecution has charged a case of abject moral depravity in which five persons, aged between 48 to 79, were alleged to have ravished a minor girl, as complained of by the victim and her mother. The prosecution case rests squarely on the evidence of the victim.

I. The revision and prayer for conversion as an appeal:

2. The appeals are filed by the accused and after hearing commenced and continued for two days, Sri.Siddarth A. Menon, Legal Aid Counsel appointed in Crl.R.P.246/2016 sought for conversion of the R.P. into an appeal under Section 401(5) of the Code of Criminal Procedure, 1973 ['Cr.P.C.' for brevity]. The revision filed by the victim was called to the Division Bench, to be heard along with the appeals. The Counsel appearing for the accused appearing in the appeals have taken notice for the respondents on 08.02.2020. The prayer for conversion as appeal is on the ground that, unwittingly, the victim, filed a revision against the order of acquittal under the Protection of Children from Sexual Offences Act, 2012 ['POCSO Act' for brevity]. A victim is enabled to file an appeal against such order of acquittal as per the proviso to Section 372 of the Cr.P.C. The learned Counsel would rely on the decisions of the Hon'ble Supreme Court in Blssu Mahgoo v. State of Uttar Pradesh [AIR 1954 SC 714] and Bachan Singh v. State of Punjab [(1979) 4 SCC 754].

3. Learned Senior Counsel Sri.P.Vijaya Bhanu specifically pointed out that the revision only has a prayer for enhancement of sentence for which a victim has no right to file appeal. There is no prayer as such for reversing the order of acquittal under the POCSO Act. It is also urged that in any event, the accused would be prejudiced if now the revision is converted into an appeal against acquittal, since at no time, for the past five years, when the accused were in custody, the prayer was made.

4. Blssu Mahgoo held that when either the State or the complainant moved the High Court in revision against the sentence awarded, the High Court was well within its powers to enhance the sentence. Bachan Singh was a case in which appeals were filed by both the accused and the State. The High Court enhanced the sentence by partly allowing the appeal of the State, which order was challenged for non compliance of S.377(3). The Hon'ble Supreme Court held that erroneously the enhancement of sentence was ordered in the appeal; which obviously the State did not seek. The enhancement was actually made in a clearly maintainable revision under Section 401 of Cr.P.C. which was also pending along with the appeals.

5. In the present case the prayer for enhancement of sentence can be considered in the revision itself. Though there is no prayer made for reversing the acquittal under the POCSO Act, we see that one of the grounds raised is against acquittal. We were hence of the opinion that the prayer for conversion could have been considered; but for the accused being disabled from filing an appeal for enhancement of sentence. The revision petitioner cannot seek for conversion of a portion of the revision as an appeal and retain the revision to the extend it seeks enhancement of sentence.

6. The acquittal sought to be challenged by the victim is against the acquittal under the POCSO Act. Which came into effect from 14.11.2012. The alleged incidents of rape occurred in the year 2010 and 2011 and there is no specific date mentioned. There is nothing in evidence to show that even after 14.11.2012 the victim was sexually assaulted by A1 to A5 and thus the acquittal under the POCSO Act. We find no reason to interfere with the order of acquittal. There is also the technical difficulty in retaining the revision for enhancement of sentence and converting a portion of it as an appeal against acquittal. We do not intend to invoke our powers under Section 401(5). The prayer for conversion of the revision into an appeal stands rejected. As far as the enhancement of sentence is concerned, we