Hanuman Prasad & Ors vs State Of Rajasthan

Hanuman Prasad and Ors. ....Appellants

Versus

State of Rajasthan ....Respondent

(With Crl.A. NO. 799 of 2002)

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

2 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.

3 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.

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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

application of Section 376 IPC.

6. A bare reading of the entire evidence of the prosecutrix goes to show

that the appellants were not involved in the act of rape. There is also

nothing on evidence to show that they shared common intention.

7. The important expression to attract Section 376(2)(g) is `common

intention'. The essence of the liability in terms of Section 376 (2) is the

existence of common intention. In animating the accused to do the criminal

act in furtherance of such intention, the principles of Section 34 IPC have

clear application. In order to bring in the concept of common intention it is

to be established that there was simultaneously consensus of the minds of

the persons participating in the act to bring about a particular result.

Common intention is not the same or similar intention. It presupposes a

prior meeting and pre-arranged plan. In other words, there must be a prior

meeting of minds. It is not necessary that pre-consert in the sense of a

distinct previous plan is necessary to be proved. The common intention to

5 bring about a particular result may well develop on the spot as between a

number of persons which has to be gauzed on the facts and circumstances of

each case.

8. In the instant case no evidence was led to show that the appellants

had a common intention of committing rape on the victim. This aspect

unfortunately has been lost sight of by the High Court though the Trial

Court has elaborately dealt with this aspect.

9. Above being the position the conviction as recorded by the High

Court cannot stand and is set aside. Appeals are allowed. Appellants are on

bail. Their bail bonds shall stand discharged.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 18, 2008

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