2002 Supreme(SC) 1252

2003(1) Supreme 426
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S. Rajendra Babu and P. Venkatarama Reddi, JJ.
Ashok Kumar -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 734 of 2002
Decided on 17-12-2002
Counsel for the Parties :
For the Appellant : Sushik Kumar, Sr. Advocate, S.C. Paul, Shiv P. Pandey and Anil Kaushik, Advocates.
For the Respondent : Aditya Kumar Chaudhary and Ranbir Singh Yadav, Advocates.

IMPORTANT POINT
In the absence of any evidence of concert between Anil Kumar and his brother (the appellant), the conviction rendered by the trial Court as affirmed by the High Court of the appellant under Section 376(2)(g) IPC of deemed rape cannot be sustained.

Headnote:Indian Penal Code, 1860-Sections 376 and 376(2)(g)-Appellant and his brother Anil Kumar (later died in an accident) charged for offences under-Victim committed suicide-Brothers of deceased saw Anil in compromising position-Anil, appellant was later disclosed by victim to have also committed rape-Medical evidence not sustaining it-Trial Court and High Court convicted under Section 376(2)(g)-Appeal to Supreme Court-Whether Courts below were correct? (No).

       Held : From the sequence of events, it is not possible to draw a reasonable conclusion that the appellant had raped the deceased person. The time gap between PW 6 noticing the victim being taken inside the Baithak and his entry into the Baithak was so short that it is not possible to infer that the appellant would have committed rape in the first instance. Soon after PW 6 entered the Baithak and witnessed what was happening, the appellant withdrew from there. In the face of this version in cross examination, it is difficult to believe that both have committed rape. However, we have to examine whether the appellant could be convicted with reference to Section 376(2)(g) IPC even if he had not actually raped the victim. (Para 7)

       Held thereafter : 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 offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence. Now what is to be seen is whether there are any circumstances to indicate concert between the appellant and Anil Kumar in committing rape on Sudesh. Learned Advocate appearing for the respondent, contended that the appellant had facilitated Anil Kumar to commit rape on the deceased, Sudesh and, therefore, it must be inferred that he was in concert with him. Facilitation of rape by Anil Kumar by the appellant, if at all, has to be inferred from the circumstances. Apart from the fact that he was present in his house at about 3.30 p.m. in hot summer month at the crucial time, nothing more is established. By that factum alone, the inference that the appellant being in concert with Anil Kumar cannot be established. We cannot presume that by his mere presence in his house, he was aware of the illicit affair going on between Anil Kumar and the victim, or that he was acting in concert with Anil Kumar. The evidence of Ranbir (PW 4) and Rajbir (PW 6) before the Court that they found Anil Kumar to be in compromising position with Sudesh when the appellant walked in with a pistol and threatened to shoot them is not believed by the trial Court. In fact, no pistol was recovered from him. He has been acquitted of that charge under Section 506 IPC and that part of the order has now become final since no appeal has been preferred against such acquittal. No case is put forth or established that the appellant committed an offence under Section 376 IPC as such, but he is charged with an offence arising under Section 376(2)(g) IPC by which he is deemed to have committed such an offence. In the absence of any evidence of concert between Anil Kumar and the appellant, the conviction recorded by the trial court as affirmed by the High Court cannot be sustained. (Paras 8, 9 and 10)

       Held consequently : In the result, we set aside the order made by the trial Court as affirmed by the High Court and acquit the accused of the offence with which he was charged. He shall be set at liberty forthwith. Fine amount, if already paid by the appellant, shall be refunded to him. The appeal is allowed accordingly. (Paras 11 and 12)