SUPREME COURT OF INDIA
Pardeep Kumar
Vs
Union Administration, Chandigarh
Appeal (Crl.) 434 of 2005
(B. N. Agarwal and P. P. Naolekar, JJ)
18.08.2006
P. P. NAOLEKAR, J.
Accused Lalit Gupta, Ashok Kumar alias Babbu, Pardeep Kumar and Karam Chand
were tried under Sections 366, 376, whereas accused-Inderjit Singh was tried
under Section 376 read with Section 109 and Section 368 of the Indian Penal Code, 1860 (for short "IPC"). All
the five accused were held guilty under Section 376, Indian
Penal Code, 1860
The prosecution case as set out in the First Information Report (FIR) is that
the prosecutrix was living in House No. 3359, Sector 19D, Chandigarh with her
brother and mother. Accused-Lalit Gupta was after her and also promised to
marry her. On 2nd February, 1987 at about 6.30 p.m., the prosecutrix had gone
to the market of Sector 19. Accused- Lalit Gupta met her in the market and
invited her to the house of his cousin so that the proposal regarding marriage
could be discussed with his relations. On this, the prosecutrix agreed to
accompany him to Sector 38, Chandigarh. Lalit Gupta hired a three-wheeler
scooter (auto-rickshaw) and they proceeded towards Sector 38. In the midway,
the auto- rickshaw was got stopped by Lalit Gupta and accused-Ashok Kumar alias
Babbu also boarded the auto-rickshaw. When the prosecutrix, Lalit Gupta and
Ashok Kumar entered the house, another accused-Inderjit Singh, who was
acquitted by the High Court, met them there. The three accused then consumed
liquor in the house. When the advances made by the accused were resisted,
accused-Inderjit Singh threatened her with dire consequences of death and
thereafter she yielded to the wishes of the accused persons. Thereafter, Lalit
Gupta committed rape on the prosecutrix against her wish and without her
consent which was followed by Ashok Kumar who also defiled her. Thereafter,
Karam Chand and Pardeep Kumar arrived there and they also committed rape. All
of them started taking liquor in another room, taking advantage, the
prosecutrix escaped from the house. On the way, she met police personnel to
whom she narrated the whole incident. The police came to the house and
apprehended Pardeep Kumar, Karam Chand and Lalit Gupta, but two other accused
Ashok Kumar and Inderjit Singh managed to escape. The FIR was lodged on the
intervening night of 2nd & 3rd February, 1987 with Sub-Inspector Moti Ram
at about 2.20 a.m. The prosecutrix was unmarried at the time of incident, and
she was sent for medical examination. Dr. G.K. Dhillon examined her on 3rd
February, 1987 at 1.30 p.m. and found no evidence of any external injury. The
doctor also opined that she was habitual to sexual intercourse.
The High Court, inter alia, has upheld the conviction of the accused-appellant
Pardeep Kumar for the offence under Section 376, Indian
Penal Code, 1860 relying on the version of the prosecutrix supported by
the testimony of Constable Raghubir Singh to whom she had narrated the entire
incident soon after her escape from the place of occurrence. The High Court has
observed that the presence of the accused-appellant on the spot where the rape
was committed by other accused persons, was further corroborated by the fact
that he was apprehended from that house itself by CRPF jawans.
It was submitted before us by Mr. K.T.S. Tulsi, learned senior counsel for the
appellant that the High Court committed an error in convicting the
accused-appellant under Section 376, Indian Penal Code,
1860 when the statement of the prosecutrix before the court completely
exonerated him from the commission of offence of rape by deposing that only two
accused persons, namely, Karam Chand and Ashok Kumar, defiled her against her
wish and consent; and that she had further stated that the other accused could
not have sexual intercourse with her because getting a chance she opened the
bolt of the room and ran away from the house. It was submitted that on the face
of the above statements of the prosecutrix, the accused-appellant Pardeep Kumar
could not have been convicted.
On the other hand, Ms. Kamini Jaiswal, learned counsel for the State submitted
that the accused-appellant, although had not actually committed rape on the
prosecutrix, was rightly convicted under Section 376, Indian
Penal Code, 1860
In order to appreciate the arguments advanced by the learned counsel appearing
on both sides, it would be appropriate for us to extract the relevant
provisions of Section 376, Indian Penal Code, 1860,
as under:
"376. Punishment for rape.-
(2) Whoever, -
(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 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."
In Ashok Kumar v. State of Haryana, 5, this
Court observed :
"8. : In order to establish an offence under Section 376(2)(g) Indian Penal Code, 1860, 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 offenders. In such cases, there must be
criminal sharing marking out a certain measure of jointness in the commission
of offence."
In Bhupinder Sharma v. State of Himachal Pradesh, , the observations made
by an earlier Bench in Pramod Mahto and Others v. State of Bihar, , were
reiterated by this Court as follows:
"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 I 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 Indian Penal Code, 1860."
In a recent decision in Priya Patel v. State of M.P. and Anr. 2006 (6) JT 303,
this Court has observed as follows:
"8. By operation of the deeming provision, a person who has not
actually committed rape is deemed to have committed rape even if only one of
the group in furtherance of the common intention has committed rape. 'Common
intention' is dealt with in Section 34 Indian Penal Code,
1860
To bring the offence of rape within the purview of Section 376(2)(g), Indian Penal Code, 1860, 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 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 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.
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.
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.
In the light of the principles enumerated in the above- mentioned cases, we have to analyse the factual matrix of the present case with regard to the accused-appellant's conduct and role played by him in the commission of offence. The prosecutrix while lodging the FIR had stated that the accused- appellant reached the spot after the rape had been committed by Lalit Gupta and Ashok Kumar, but in her statement before the court she deposed that on reaching House No. 2451, Sector 38C, Chandigarh, when she did not find parents of accused-Lalit Gupta present in the house, she told accused- Lalit Gupta that she would return to her home. She also told him that he had defrauded her. On this, accused-Ashok dragged her inside the house and at the instance of Inderjit Singh, Pardeep Kumar and Karam Chand came to the house. Accused had also brought one person by name Bitu. Accused-Karam Chand caught hold of her and raped her and, thereafter Ashok caught hold of her and committed rape against her wish. She stated that Pardeep, Lalit and one other person Bitu were taking liquor in the kitchen. 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-appellant's 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-appellant's 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.
Hence, in the light of above discussion, we set aside the order of the Session
Court as also that of the High Court convicting the accused-appellant under
Section 376, Indian Penal Code, 1860. The appeal is,
accordingly, allowed. The accused-appellant shall be set at liberty forthwith
if not required in any other case.