Hanuman Prasad &
Ors. Vs. State of Rajasthan  INSC 1966 (18 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1186 OF 2001
Hanuman Prasad and Ors. ....Appellants Versus State of Rajasthan ....Respondent
(With Crl.A. NO. 799 of 2002)
Dr. ARIJIT PASAYAT,
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.
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 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.
counsel for the appellants submitted that Section 376(2)(g) has no application
so far as the present appellants are concerned.
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.
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.
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.
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 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.
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.
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.
(Dr. ARIJIT PASAYAT)