State of Rajasthan Vs.
Hemraj & ANR. [2009] INSC 834 (27 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 847 OF 2009
(Arising out of SLP(Crl.) No. 2207 OF 2008) State of Rajasthan ....Appellant
Versus Hemraj & Anr. ....Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the
Rajasthan High Court, Jaipur Bench dismissing the application for grant of
leave to question correctness of the judgment of learned Additional District
Sessions Judge (Fast track), No.2 Alwar.
3.
Background
facts in a nutshell are as follows:
Respondents were
facing the trial for alleged commission of offence punishable under Section 342
and 376(2) of the Indian Penal Code, 1860 (in short the `IPC'). PW1 was the
victim. The trial court noticed that it was the accused Chandan who committed
rape on her. There was no allegation of rape against the other accused persons
namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the
provisions of Juvenile Justice Act, 2000 (in short the `Juvenile Act').
The trial court as
noted above held the accused Hemraj guilty of offence punishable under Section
342 IPC and held that the Accused Kamla cannot be convicted in terms of Section
376 (2) IPC.
The State filed an
appeal questioning acquittal of the respondent from the accusations relatable
to Section 376(2) IPC. The High Court held that so far as the accused Hemraj is
concerned his presence at the spot was doubtful. In any event both the
respondents cannot be held guilty of offence punishable under Section 376(2)
IPC.
4.
Learned
counsel for the appellant-State submitted that scope and ambit of Section
376(2)(g) and the explanation appended thereto have been lost sight of by the
High Court.
5.
Learned
counsel for the respondent on the other hand submitted that the High Court
rightly noted that the presence of accused Hemraj at the alleged time of rape
has not been established. Additionally, a lady i.e. respondent No.2 cannot be
held guilty even in terms of the Explanation to Section 376 (2)(g) of the IPC.
6.
In
order to appreciate rival submissions Sections 375 and 376 need to be noted.
They so far as relevant read as follows:- "375. Rape A man is said to
commit "rape" who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six
following descriptions:-- First.--Against her will.
Secondly.--Without
her consent.
Thirdly.--With her
consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt. Fourthly.--With her
consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.--With her
consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly.--With or
without her consent, when she is under sixteen years of age.
Explanation.--Penetration
is sufficient to constitute the sexual intercourse necessary to the offence of
rape.
Exception.--Sexual
intercourse by a man with his own wife, the wife not being under fifteen years
of age, is not rape.] 376. Punishment for rape (1) Whoever, except in the cases
provided for by sub-section (1), commits rape shall be punished with imprisonment
of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall
also be liable to fine unless the women raped is his own wife and is not under
twelve years of age, in which cases, he shall be punished with imprisonment of
either description for a term which may extend to two years or with fine or
with both:
Provided that the
court may, for adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-- xx xx
xx xx xx (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 imprisonment of either description for a term of less than
ten years, Explanation I.--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. x xx xx xx xx"
7.
A
bare reading of Section 375 makes the position clear that rape can be committed
only by a man. The section itself provides as to when a man can be said to have
committed rape.
Section 376(2) makes
certain categories of serious cases of rape as enumerated therein attract more
severe punishment. One of them relates to "gang rape". The language
of sub-section(2)(g) provides that "whoever commits `gang rape" shall
be punished etc. The Explanation only clarifies that when a woman is raped by
one or more in a group of persons acting in furtherance of their common
intention each such person shall be deemed to have committed gang rape within
this sub- section (2). That cannot make a woman guilty of committing rape. This
is conceptually inconceivable. The Explanation only indicates that when one or
more persons act in furtherance of their common intention to rape a woman, each
person of the group shall be deemed to have committed gang rape. 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 IPC and provides that when a criminal act is done by several
persons in furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it was done by him alone.
"Common intention" denotes action in concert and necessarily
postulates a pre- arranged plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary in character, but
must be actuated by the same common intention, which is different from same
intention or similar intention. The sine qua non for bringing in application of
Section 34 IPC that the act must be done in furtherance of the common intention
to do a criminal act. The expression "in furtherance of their common
intention" as appearing in the Explanation to Section 376(2) relates to
intention to commit rape. A woman cannot be said to have an intention to commit
rape. Therefore, the counsel for the appellant is right in her submission that
the appellant cannot be prosecuted for alleged commission of the offence
punishable under Section 376(2)(g).
8.
The
appeal is without merit, deserves dismissal, which we direct.
.......................J.
(Dr. ARIJIT PASAYAT)
.................................J.
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