Om Prakash vs State Of Haryana

appellant') and Jai Prakash were committed to the Court of

Additional Sessions Judge at Jagadhri vide order dated 30th

September, 1994 to face trial in the case of Jai Prakash under

Sections 363, 366 and 376(2)(g) of the Indian Penal Code,

1860 (in short the `IPC') and in the case of appellant under

Sections 368 and 376(2)(g) IPC. Both these accused pleaded

not guilty to the charge and faced trial. The prosecution -

examined as many as nine witnesses to bring home the guilt

of the accused in response to the questions posed by the Court

disclosing incriminating evidence against the accused under

2 Section 313 of the Code of Criminal Procedure, 1973 (in short

the 'Code'). The appellant denied the incident and stated that

he had never known either Jai Prakash or the prosecutrix. Jai

Prakash took the stand that he used to visit the house of one

Bhagwan Dass and there was enmity between Bhagwan Dass

and the father of the prosecutrix. Fufa of the prosecutrix, Jeet

Ram, was posted at the Yamuna Nagar police station and

because of personal animosity, he has been falsely implicated.

The trial court vide a detailed judgment dated 30th January,

1996 recorded a finding that all the essential ingredients

constituting offence for which the accused were charged were

fully proved and subsequently convicted both the accused of

3

the said offences. After hearing them on the quantum of

sentence and noticing the antecedents and the family

background of the accused, the trial court took a lenient view

and sentenced Jai Prakash to undergo rigorous imprisonment

for five years under Section 363 of the IPC and to pay a fine of

-

Rs.250/- and in default of payment of fine, to undergo further

rigorous imprisonment for four months. The Court also

convicted him under Section 376 (2)(g) IPC with a sentence of

rigorous imprisonment for ten years and fine of Rs.500/- and

in default of payment of fine to undergo further rigorous

4

imprisonment for six months. However, the Court awarded

sentence of five years rigorous imprisonment to appellant

under Section 368 IPC and a fine of Rs.250/- and in default of

payment of fine to further undergo rigorous imprisonment for

four months and/or for the offence under Section 376(2)(g) of

the IPC awarded him R.I. for seven years and fine of Rs.500/-

and to further undergo, in the event of default of payment of

fine, four months R.I. Dissatisfied with the judgment of the

trial court, Jai Prakash and the appellant preferred separate

appeals before the High Court of Punjab and Haryana at

Chandigarh. The same were dismissed and the judgment of

conviction and order of sentence as awarded by the trial court,

5

was upheld by the High Court vide its well reasoned judgment

dated 9th August, 2005. Against this judgment of the High

Court, the appellant alone has filed the present appeal.

Learned counsel appearing for the appellant, while

challenging the judgment of the High Court before this Court,

has contended that there was an inordinate delay in lodging

the FIR, the appellant had been falsely implicated in the case

and he had no role to play whatsoever either in the alleged

kidnapping of the prosecutrix or in raping her. According to

him, even if the entire evidence is read in its correct

perspective, the appellant would be entitled to the benefit of

doubt and consequent acquittal. It is also contended that the

6

basic ingredients of Section 376 (2)(g) IPC are not satisfied in

the present case.

In order to examine the merit of these contentions, it will

be important for us to notice the case of the prosecution in

brief.

Complainant Ram Pal (PW-6) is a resident of House No.

115 in Vijay Colony and is a labourer in paper mill,

Yamunanagar. He has five daughters and one son aged about

three years. On the evening of 2nd January, 1994, one of his

daughters the prosecutrix, aged about 14 years, went out of

the house to throw rubbish but she did not return. The

complainant searched for her but she could not be traced. On

7

3rd January, 1994, his son-in-law - Bali Ram (PW-7) came

from Village Topra and told him that Jai Prakash had taken

the prosecutrix on his cycle the previous night and then

dropped her to Bali Ram's House that morning. After receiving

this information he brought his daughter from the village

Topra; she did not tell anything to the complainant at that

time but after 2-3 days, she narrated the entire incident. She

informed that she had been taken away by Jai Prakash-

accused at knife point and he raped her in the house of the

appellant in his presence. Ram Pal (PW6), father of the

prosecutrix lodged the report with the police on 6th January,

1994. Thereafter, as already noticed, Jai Prakash and the

8

appellant were tried by the court of competent jurisdiction and

convicted. In terms of the statement of the prosecutrix, Jai

Prakash, accused threatened to kill her if she did not

accompany him. She was taken on his cycle to Gulab Nagar

after crossing the railway line. He took her to the house of the

appellant and talked secretly with him to arrange space and a

cot. Both the accused slept in the same room in which she

was raped. It has also come in evidence that Jai Prakash had

intercourse with her twice after threatening her with a knife

and the appellant did not come to her rescue despite her cries

for help. The appellant slept in that very room near the door

to guard against entry of any other person as well as to

9

prevent her from going out. Jai Prakash threatened to kill the

prosecutrix with his knife if she raised alarm and at about 3-4

A.M., Jai Prakash-accused took her away to village Topra on

cycle and left her at the house of her brother in law namely

Bali Ram.

Dr. V.K. Sharma (PW8) had stated before the Court that

he had examined Jai Prakash on 17th January, 1994 and in

his opinion, he was capable of performing intercourse and this

fact is proved by his report (Ex.PG).

Dr. Neeru Ohri (PW2) had medically examined the

prosecutrix on 6th January, 1994 and had opined that the girl

had been subjected to coitus. Besides medical experts and the

10

investigating officer, there are three material witnesses-the

prosecutrix (PW5), Ram Pal (PW6) and Bali Ram (PW7). All

these witnesses have stated what they were told by the

prosecutrix. Thus, the basic foundation for either acquittal or

holding the accused guilty primarily depends upon the

statement of these witnesses. According to her, the appellant

met Jai Prakash after he had taken her away at a knife point

to Gulab Nagar and there they had talked for some time and

then the appellant had provided a cot and space to Jai

Prakash. It is not the statement of the prosecutrix that she

either over heard or was even certain as to what both of them

discussed within that short duration. She has clearly stated

11

that the appellant did not directly or indirectly participate in

the act of rape. We are not concerned with the offence

committed by Jai Prakash in the present appeal. Statement of

PW6 is primarily based upon what was narrated to him by the

prosecutrix so is the statement of PW7. They have no personal

knowledge about the event and role, if any, played by the

appellant. The entire material evidence would relate to the

medical evidence of Jai Prakash for performing the sexual

intercourse and that of the prosecutrix that she was subjected

to sexual inter course. It is in no way even suggestive of the

role, if any, which has been played by the appellant. There

can hardly be any doubt that Jai Prakash raped the

12

prosecutrix. As far as the appellant is concerned, according to

the prosecutrix, he did not come to her help when she tried

out to him and thus the appellant wrongly ensured her

confinement in the room where Jai Prakash subjected her to

the assault of rape. To put in a nutshell the prosecutrix was

threatened at knife point and taken away on the pillion rider

on a cycle across a distance of 15 to 20 km, raped and then

dropped to her brother in law-Bali Ram's house the next

morning. In this entire episode no role is attributed to the

appellant. Even according to Bali Ram (PW7), Jai Prakash

alone came to drop her at his place. In the words of the

prosecutrix " I asked Om Parkash accused to some (sic) to my

13

help but he did not pay any heed. Om Parkash accused has

slept in that very room. So that he may guard the entry of any

other persons and so may guard my going out...."

This is the precise role, in the words of the prosecutrix,

which is attributable to the appellant. Even if we take the

statement of the prosecutrix as gospel truth, nothing more can

be attributed to the appellant. Of course, Gandhi Prasad

(DW1), the defence witness stated that he had been a tenant in

Moti Ram's house in Gulab Nagar since five years. His room

was situated towards the eastern side of the house and Moti

Ram and his family were residing in the opposite room. Moti

Ram had since died. The appellant was stated to be the

14

nephew of Moti Ram but neither the owner of the house nor a

tenant. The appellant was married, he denied that any girl

ever came to those premises. The statement of DW1 does not

really advance the case of the defence but the effect of the

matter remains that the appellant was stated to be neither the

owner nor tenant of the premises in question. Be that as it

may, DW1's statement cannot be given greater weightage than

the statement of the prosecutrix. It is not even the statement

of DW 1 that he was there on that particular day. He has only

stated that in January, 1994, he was in his room which

obviously does not inspire confidence as it cannot be inferred

that he was staying in the room the entire month, day in and

15

day out. His statement was that no girl came to those

premises on 2nd January, 1994. He does not even say that for

the entire day and night of 2nd January, 1994, he was present

in the house. For the above reasons and even otherwise, DW1

appears to be an interested witness being a friend of the

appellant as he is staying in the same premises and would be

interested in protecting the appellant.

There is some delay in lodging the FIR but that

delay has been well explained. A young girl who has

undergone the trauma of rape is likely to be reluctant in

describing those events to any body including her family

members. The moment she told her parents, the report was

16

lodged with the police without any delay. Once a reasonable

explanation is rendered by the prosecution then mere delay in

lodging of a first information report would not necessarily

prove fatal to the case of the prosecution.

The learned counsel appearing for the appellant has

hardly been able to bring to our notice any material

contradictions in the statements of the prosecution witnesses.

Every small discrepancy or minor contradiction which may

erupt in the statements of a witness because of lapse of time,

keeping in view the educational and other background of the

witness, cannot be treated as fatal to the case of the

prosecution. The court must examine the statement in its

17

entirety, correct perspective and in light of the attendant

circumstances brought on record by the prosecution.

The High Court in its judgment has not discussed

whether the ingredients of Section 376(2)(g) of the IPC are

satisfied in the present case. It will be useful to refer the

provisions of Section 376(2) of the IPC at this stage which read

as under:

"376(1) xxx xxx

(2) Whoever,-

(a) being a police officer

commits rape-

(i) within the limits of the police

station to which he is

appointed; or

(ii) in the premises of any

station house whether or not

18

situated in the police station to

which he is appointed; or

(iii) on a woman in his custody

or in the custody of a police

officer subordinate to him; or

(b) being a public servant, takes

advantage of his official position

and commits rape on a woman

in his custody as such public

servant or in the custody of a

public servant subordinate to

him; or

(c) being on the management or

on the staff of a jail, remand -

home or other place of custody

established by or under any law

for the time being in force or of

a women' s or children' s

institution takes advantage of

his official position and

commits rape on any inmate of

19

such jail, remand home, place

or institution; or

(d) being on the management or

on the staff of a hospital, takes

advantage of his official position

and commits rape on a woman

in that hospital; or

(e) commits rape on a woman

knowing her to be pregnant; or

(f) commits rape on a woman

when she is under twelve years

of age; or

(g) commits gang rape, shall be

punished with rigorous

imprisonment for a term which

shall not be less than ten years

but which may be for life and

shall also be liable to fine:

Provided that the court may, for

adequate and special reasons to

be mentioned in the judgment,

impose a sentence of

20

imprisonment of either

description for a term of less

than ten years

Explanation 1. Where a woman

is raped by one or more in a

group of persons acting in

furtherance of their common

intention, each of the persons

shall be deemed to have

committed gang rape within the

meaning of this sub- section.

Explanation 2.- "women's or

children's institution" means an

institution, whether called an

orphanage or a home for

neglected women or children or

a widows' home or by any other

name, which is established and

maintained for the reception

and care of women or children.

Explanation 3.-" hospital"

means the precincts of the

21

hospital and includes the

precincts of any institution for

the reception and treatment of

persons during convalescence

or of persons requiring medical

attention or rehabilitation."

A plain reading of Section 376(2)(g) with Explanation I

thereto shows that where a woman is raped by one or more of

a group of persons acting in furtherance of their common

intention, each of the persons shall be deemed to have

committed gang rape within the meaning of Section 376 (2)(g)

of the IPC. In other words, the act of gang rape has to be in

furtherance of their common intention before the deeming

fiction of law can be enforced against the accused. This Court

22

in the case of Ashok Kumar v. State of Haryana, (2003) 2 SCC

-143 had occasion to dwell on Explanation 1 to Section 376(2)

(g), IPC while examining whether the appellant Ashok Kumar

could be convicted under the same because at the crucial

time, he happened to be in the house of the co-accused Anil

Kumar in whose case the judgment of conviction under

Section 376(2)(g) had attained finality. The Court observed

that the prosecution must adduce evidence to show that more

than one accused has acted in concert and in such an event, if

rape had been committed by even one of the accused all will

be guilty irrespective of the fact that she has not been raped

by all of them. Therefore, it may not be necessary for the

23

prosecution to adduce evidence of a completed act of rape by

each one of the accused. The provision embodies a principle

of joint liability and the essence of that liability is existence of

common intention. That common intention pre-supposes

prior concert as there must be meeting of minds, which may

be determined from the conduct of the offenders which is

revealed during the course of action. After examining the

circumstances relied upon by the prosecution to indicate

concert, the Court in Ashok Kumar (supra) concluded that

mere presence of the appellant could not establish that he had

shared a common intention with the co-accused to rape the

prosecutrix. A similar view was taken in the case of

24 Bhupinder Sharma v. State of Himachal Pradesh [(2003) 8 SCC

551] in which the court held as under:

"14. In cases of gang rape the proof of

completed act of rape by each accused on

the victim is not required. The statutory

intention in introducing Explanation 1 in

relation to Section 376(2)(g) appears to

have been done with a view to effectively

deal with the growing menace of gang

rape. In such circumstances, it is not

necessary that the prosecution should

adduce clinching proof of a completed act

of rape by each one of the accused on the

victim or on each one of the victims

where there are more than one in order to

find the accused guilty of gang rape and

convict them under Section 376 IPC."

25

Another Bench of this Court in the case of Pardeep

Kumar v. Union Administration, Chandigarh, [(2006) 10 SCC

608] after noticing the judgment of this Court in the case of

Ashok Kumar (supra), Bhupinder Sharma (supra) and Priya

Patel v. State of M.P. [(2006) 6 SCC 263], while elaborating

the ingredients of the offence under Section 376(2)(g) of the

I.P.C. stated the law as follows:

"10. 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:

26

(i) that more than one person had acted

in concert with the common intention to

commit rape on the victim;

(ii) that more that 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 concert in pre-arranged plan or

a plan formed suddenly at the time of

commission of offence which is reflected

by the 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 minds of the accused

persons prior to commission of offence of

27

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.

11. 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.

28 12. 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."

It must be noticed that in the case of Pardeep Kumar

(supra), the Court stated the above principles but acquitted

29

the accused. According to the statement of the prosecutrix in

that case, the accused had reached the premises after

commission of the offence, though he had consumed liquor

with the persons who had actually raped the prosecutrix. The

Court came to the conclusion that there was no common

intention or prior concert to commit the offence of gang rape

as mere presence would not be sufficient to find the appellant

guilty by taking aid of Explanation I. The present case is

slightly similar to the case of Pardeep Kumar (supra), of

course, it is not in any way identical on facts. In the case in

hand, the prosecutrix had not been gang-raped, as alleged by

the prosecution, and she had travelled all the way, i.e. nearly

30

15-20 kms on a cycle. Thus, the intention to kidnap and

commit rape or subject her to sexual assault was the intention

of Jai Prakash alone. There was no prior plan or meeting of

minds between the appellant and the Jai Prakash to either

kidnap or to rape the prosecutrix. As per the statement of the

prosecutrix, the appellant had provided a room to both Jai

Prakash and the prosecutrix and remained there to see that

she does not go out or that nobody comes in. The crucial

question in this entire sequence of events is whether Jai

Prakash told the appellant that he had kidnapped the

prosecutrix or that the prosecutrix was known to him and had

accompanied him of her own accord. There is no direct

31

evidence in this regard. A collective reading of the evidence

would show that the role of the appellant is limited to

wrongfully confining the prosecutrix and not rendering help

when asked for.

However, it would have been an entirely different

situation if the prosecutrix had stated in her statement that

the appellant had been told by Jai Prakash about her alleged

kidnapping and his intention to rape her, during the short

conversation that they are stated to have had before entering

the room. It is clear from her statement that she does not

even claim that she overheard the conversation. Thus, it may

32

not be possible for the Court to draw an adverse inference

against the appellant when the prosecution has not been able

to lead any definite evidence in that regard.

In the case of Smt. Saroj Kumari v. The State of U.P.

[(1973) 3 SCC 669], this Court while explaining the

constituents of an offence under Section 368 of the IPC clearly

held that when the person in question has been kidnapped,

the accused knew that the said person had been kidnapped

and the accused having such knowledge, wrongfully conceals

or confines the person concerned then the ingredients of

Section 368 of the IPC are said to be satisfied. The

33

prosecution evidence and particularly the statement of the

prosecutrix shows that the act of kidnapping with the

intention to rape and actual commission of rape of the

prosecutrix were completed by Jai Prakash himself. The

appellant had rendered the help of providing a room but there

is nothing on the record, including the statement of the

prosecutrix, to show that she overheard Jai Prakash telling the

appellant that he had kidnapped her and/or that the appellant

had any knowledge of the fact that she had been kidnapped.

The possibility of the appellant being informed by the Jai

Prakash that she had come of her own will and had travelled a

long distance of 15-20 km without protest does not appear to

34

be unreasonable. As noticed, according to the prosecutrix, it

was under threat but the prosecution was expected to produce

evidence to show that the factum of kidnapping as well as

intent to commit a rape was known to the appellant either

directly or at least by circumstantial evidence. As per the

evidence of the prosecution, the room where the prosecutrix

was raped belonged to one Sh. Moti Ram, the uncle of the

appellant who had died. Except the statement of DW1, no

other defence had been led by the appellant to prove that he is

innocent or has been falsely implicated. Though DW1 had

made a vague statement that on the date of occurrence, no girl

35

had come to that room, that statement cannot be said to be

truthful and it does not inspire confidence.

Even in the cases where the statement of prosecutrix is

accepted as truthful, it is expected of the prosecution to show

some basic evidence of common intention or concert prior to

commission of the offence. In the present case, it is an

undisputed fact that Jai Prakash alone at the knife point had

taken away the prosecutrix across a distance of more than 15

km and it is only after he reached Gulab Nagar that he met

the appellant. Except providing a space and cot and helping

the accused in wrongfully detaining the prosecutrix, no further

act or common intention is attributable. There is no evidence

36

that there was a common concert or common intention or

meeting of minds prior to commission of the offence between

the two accused.

For the reasons afore-recorded, we partially accept

the present appeal. The judgment of the trial court convicting

the accused under Section 376(2)(g) of the IPC is set aside and

he is acquitted of the said charge. However, his conviction

under Section 368 of the IPC and the sentence awarded by the

High Court is maintained. Therefore, the accused shall

undergo rigorous imprisonment for five years with fine of `

37

5000/-, in default of payment of fine to undergo rigorous

imprisonment for four months.

The appeal is accordingly disposed of.

...................................J.

[Dr. B.S. Chauhan]

....................................J.

[Swatanter Kumar]

New Delhi;

July 7, 2011

38

***