2006 Supreme(SC) 743

2006(6) Supreme 379
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
B.N. Agrawal and P.P. Naolekar, JJ.
Pradeep Kumar — Appellant
versus
Union Administration, Chandigarh — Respondent
Criminal Appeal No. 434 of 2005
Decided on 18-8-2006
Counsel for the Parties :
For the Appellant : K.T.S. Tulsi, Sr. Advocate, and Jagjit Singh Chhabra, Advocate.
For the Respondent : Ms. Kamini Jaiswal, Mrs. Shomila Bakshi and Mrs. Rani Mishra, Advocates.

IMPORTANT POINT
Where evidence did not prove that accused was present on spot when other accused committed rape on prosecutrix and that he arrived at spot after rape had been committed and there was no evidence to pin point by his conduct that he had common intention in commission of rape, such accused could not be brought within purview of offence of gang rape u/s 376(2)(g) IPC.

Headnote:Indian Penal Code, 1860 — Section 376(2)(g) — Gang rape — On proof of common intention of group of persons to commit offence of rape, actual rape by even one individual forming group would fasten guilt on all members of group — Common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of parties — Five accused persons convicted for offence of rape by trial Court — High Court upheld conviction of appellant and another accused and acquitted third where as two died during pendency of appeal — Appeal — During trial prosecutrix attributed act of sexual intercourse to two dead accused — In FIR, prosecutrix stated that appellant reached spot after rape had been committed by other two accused but during trial she stated appellant was present and taking liquor in kitchen when other two accused committed rape on her — She admitted specifically that appellant had not defiled her and nothing specific was mentioned about his conduct or role to show that he shared common intention to commit rape — Appellant though apprehended immediately after incident was not got medically examined if he had consumed liquor — State of prosecutrix did not inspire confidence to reach conclusion that appellant was present at the place of incident right from beginning — Conviction of appellant could not be sustained.

       Held : 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 than 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. (Para 10)

       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.(Para 11)

       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.(Para 12)

       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-appellants 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-appellants 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.(Para 13)