HIGH COURT OF CHHATTISGARH AT BILASPUR’ Criminal Appeai No. 19’?2 of i996. Judgment post for $‘1—7-2OO’7 HPELLANT Jajlai and another Vs. RESPGEDENT The State of Chhattisgarh HIGH COURT §F CIEiATTiSGARH AT BILASPUR - ' Criminal Appeal No. 1972 of 1996. 1. son of Rajbhan, rijan, gedabout 18 years ‘2. Ram Prasad, son ofDeosai, aged about 19 years Both are residents of viliage Gadbadi, Bajkunhpur, Distt. Surguja (C.G.) . / The State of Chhattisgarh, t‘mough Distxict Magistrate, Surguja, C/o. Police Station aikunfhpur, Distt. Surguja (C.G.) vs RESPONDENT B Shri Cndresh Shn'vastava, Ac‘lvocate for the appeliants. Shri Pradeep Singh, Panel Lawyer, for the State. The appellants he preferred this appeal against the judgnent dated 31st October 19 passed in ST. No. 239/ 1995 whereby learned Additional Sessions Judge Baikunthpur District Sarguj has convicted the appellants under Section 36 366 nd Section 376(2)(g) of l.P.. and sentenced each of them to undergo three years R.l. to pay a fine of Rs 00/-, in default"of payment of f1ne to further undergo . for hree months, to undergo RI. for 5 years, to pay a fme of Rs 500[- in default of payment of fme o further undergo RI. for 3 monts, ad to undergo R.l. for 10 years, to pay a fme of Rs. lOOUf- nd in defalt of payment of line to further undergo RI. for 5 months respectively. All the substantive sentces are o r concurrently. '. Case o the prosecutn, brief is tha on 13-2-1995 the rosecuirix along with her friend Ku. Anjana Sahu as returnin h‘om her schoo to her home at tha time accused alal stopped her on wa co-accused R Prasad took out vermillion from his pocket and gave it to Jailal who pu it in the J APPELLANT Jaiiai, Ha a‘ t ha J U I) G E E K T Dhireadra Mishra, J. av , 96 , a 3, a C , . 5 RI t . , t h n a u en t un 2 f io in , t , p w g l , t Ji y, am t inan‘ partmg of the prosecumx wmcn was ODJected to bV the prosecutnx who med to run awav, however the accused Jallal caught her brala. Vljay, Kamleshwar, Nareshwar etc. tged to intervene , and Kamleshwar proceeded in- that direction, appellant Ram Prasad took out a kmfe E0111 ms pocket and threatened and also slapped 4 tune to Kamlesnwar, mereafter ’dallal took the prosecutnx on h1s shoulder and ulumatelv he tooK her on ms b1cycle and proceeded towards sprmg s1tuated in hilloc‘k in Golhapani road. Theprosecutrix was weeping all through and was requesting to freeher, hoWever, the accused Jajlal committed rape and accused Ram Prasad stood guard. After committing the offence, he to‘ok her to a temple and obtained vow and-left her. The prosecutrix returned to her home and narrated the incident to her brother Rajendra who communicated the same to his father, thereafter report was lodged in the Police Station, Bailmnthpur vide Ex. P-6. The prosecutrixvwas sent for medical examination to Community Health Centre Baikunthpur where Dr. ‘Rajni Shanna (RW. l l) examined her and gave report of Ex P— 10 3. ihe appellants were charged bV learned trial court for offence under bections 36d dob and 3/bi2)(g) of IP C who abiured their guilt lne prosecutlon m order to establish the charges against the appellants examined 14 Witnesses lne. appellants 1n their statements under becnon 313 of brP denied the Circumstances appearing r against them in prosecution evidence and _ pleaded V. innocence and false implication However; "learned trial “Court convicted and sentenced the appellants as mentioned above H4. Learned counsel Ior the appellants submitted that the prosecution has failed to prove that the prosecutrix was less than la vears old at the time ol 1nc1dent No admisSible documentary ,or‘medical eVIdencexwas adduced m this regard and the fmdingaof the trial Courts *Wh’ich is based on oral testimony of the prosecutrix herseif and her parents and also based on photo copies of the mark sheets of the prosecutrix, is not in accordance with law. Reliance is piaced upon the judgments in the matter of Ravinder Sing}; Gorkhi —v- State of U.?. (AIR 2006 SC 2157') and Ram iliurti —v- State of Haryana (MR 1970 SC 1020). It is further argued that the prosecutrix was a consenting party as is evident from her own testimony and the statement of other Witnesses. She accompanied the accused of her own freewill on the carrier of his bicycle and did not make any attempt to flee from his clutches, though she had an opportunity to do so, and it is indicative of the fact that she was a consenting party. Reliance is placed upon the judgment in the matter of $hvam and another —v- State of Maharashtra (MR 1995 SC 2l69). It is further contended that the appellant Ram Prasad has not participated in the offence of rape. There is no evidence available on record that he had common intention y along with accused Jailal right from inception to commit rape. On the contrary, there is categorical evidence that he was only present there and stood guard while allegation of rape is against the accused Jailal. Placing reliance upon the judgment in the matter of Pradeep Kumar —v- Il‘nion Administration (AR 2006 SC 2992), it is argued that mere presence of the accused appellant in spot is insudicient to show that there was a prior concert or meeting of mind or plan formed at time of commission of offence by him with other accused person for commission of rape on prosecutrix. Placing reliance upon the judgment in the matter of Friva Fatel —v- State of M.P. and another (2006 AIR SCW 3539), it is argued that a person may be convicted under Section 376(2)(g) for the od‘ence of gang rape only when the prosecution has been able to establish that the offence was committed in furtherance of common intention of committing rape by all. However}; in the instant case, there is no evidence that the appellant No. 2 Ram Prasad had at any point l / 1 of time a common intention with rape with the ‘ PW T*l°$\°? ‘ a. e On the other hand, ieahied counsel’for the State supports adduoed in the evidence as Ex. P- date of birth of the prosecutrix is The documents of was produced and not its original copy, 16‘ years of age at the time of commiS acepte. cd ’“ co-acqused Jaiial to commit 3, P-4 and P—5 in which the that the prosecutrix was iess than i6 years 01d at the Ex. 13-3 P—4 and P—S being s‘ , years of age at the lime of commission of oEence does not appear to be in' accordance with law and it is heid that the prosecution has not been able to estabhsh that the prosecutrlx was iess than 16 vears of age or Iess tnan 18 vears of age at tne tlme of 1nc1dent. 7. Now coming to the second argument advanced by the counsel that the prosecutrix was a consenting party. PW. 1 the prosecutrix who has not been administered oath because she was considered minor, has stated that she was returning hem her school along with friend Ku. Anjana Sahu, when both the accused persons stopped her, applied vermillion on her hair palting and appellant No. i forcibly took her on his bicycle towards spring and ignored her repeated prayer to free her. When Kamleshwar and other students tried to intervene, they were threatened with knife point and one of them Kamleshwar was even slapped. Co-accused Ram Prasad also accompanied hem to a certain distance and Jailai took her into fomst and torn her cloth, took out her Salwar and raped her; thereafter asked her not to disclose this fact to any one and both the accused persons took her to Hamuman temple, Jaliadand and obtained vow in the temple that she will not disclose the incident to any one. However, she narrated the incident to her brother who narrated the same to the parents and, thereafter report was lodged. She has admitted that two months prior to the incident also, the accused had eve teased‘her. She has further stated that she was examined by the doctor and she had sustained injuries on her private part. In para 12 of her statement, she has stated that Jailal had taken her on the carrier of his bicycle. Since Ram Prasad was holding knife, she did not jump dom the bicycle. She has denied the suggestion that she'accompanied the accused by her own freewill. Learned counsel for the appellant had pointed/out para 2 i of statement of this witness wherein she has stated that it is correct to say ‘ A ¥i\\ t that Ram Prasad was asking Jaiiai as to where he was taking her. However she has admitted that Ram Prasad had done nothing with her nor he told anythinglto her. PW. 2 Rajendla F’rasad has also stated that Anjana is her younger sister and she informed him after returning from the school that the appellants have taken the prosecutrix forcibly towards village Dohda. RW. 4 Anjna Kumari has also stated that the accused peons et hem o w whe the e urnin orn the schoo an Jailal caugh the roserix whereupon the prosec'uix sted e and Jailal ased her to go o her home or he will beat. Simila is te staent of Vay ingh (RW. 5) o ha also corroborate staement o th prosecutrix. itss ha so statedtha h rosecurix weg an ti to fre rself nd Ram P tig in te i nif R 2 Kamleha ed ha e g w e ng pc AAnja wer returnng orn hool, o wa hey od Jaill d m Prasa a caught hold o" the ad o th rosec e prosut d t e herse ut J o allw r Ram P llhn t dalal h pp same on he pan f tr h i poix Ram ‘Pad cat aiial sl him 4 tim a Ram asad thie him With nif Jaiil k ptri n his shr was Rm Psa ll m and at h ye ts of the Witeses are er cort y e atet f h r ami Sharm (PW 1) ho ha ammed the p1 osecutrix n s od nous aas1o the bak of the osctrx bhe as thr sd hat hen of e rosecu s abse oer . no o ingers easd d a n ul and re wa a wa m h . i rs m t n the ay n y wer retg h l d t pcut tr art weping k. t r h tem ij S wh s d‘ the t f e This wne s al tt te pt was epin d ryng e he a rasad was sitn h bcycle with ke. W. 1 swr-has stat tt h alon ith othr students includi the roseutrix and na e i h sc n y, t fun a an Ra d Jilal f hn f e putrix lh ecrlx trie o Ire lf b aual did nt o he. rasad gave vermo o J wo ahed the t hair rtig o the prosecuix. Wen he tred to nee the rsecutr ras ugh him and J apped es nd Pr atened ke. a too the rosecux o oulde tord Dohda. a rad foowed the ll~he three went in te biccl Satement se ns furth orrobaed b th stmen o te D R a 1 w s ex ad ha fun umer brns on c preui h fure tate t ym th ptrix wa nt hwev her vagina did t admit tw f v an it ws enterig With difficty the s swelling 1n the vgna and she s coplaining pain She has furter observed that w te liquid was present §§L"‘H’"*' V£R inside the vagina and she was complaining pain. On the basis of injuries present on back portion and pain in the vagina, she has opined that the prosecutrix was forcibly raped. 8. in the matter of Shvam and another (supra), the ‘i—Ion’ble Supreme Court on the evidence that two accused persons came on their respective bicycles, took the prosecutrix ‘on carrier of the bicycle to house of someone and she was made to perform a ritual signifying marriage between her and Shyam, considering that the girl did not jump from the carrier of the bicycle or put up a struggle or raised an alarm to protect herself, has held the prosecutrix of that case a wunng party. However in the instant case, apart from the statement of the prosecutrix, her statement is duly corroborated by the witnesses who are students studying in the same school Whose presence is absolutely natural and Who have categorically stated that the prosecutrix was forcibly taken by the accused on the knife point. Therefore, the submission of the counsel that the prosecutrix was consenting party is ruled out and the same cannot be accepted. 9. Now coming to the third argument advanced by the counsel regarding Ram Prasad that he could not have been convicted under Section 376(2}(g) of LRC. as there is no evidence available on record to show that accused Ram Prasad had at any point of time a common intention with the accused Jailal to commit rape. From the perusal of the statement of P.W.l the prosecutrix and other witnesses, the case of the prosecution, it appears, is that the accused Jailal wanted to marry the prosecutrix and, therefore, he applied vermillion on her hair parting and thereafter forcibly took the prosecutrix and committed rape in the forest and allegation against the accused Ram Frasad is that he helped Jailal in abducting the pros‘ecutrix and remained at a distance when the appellant committed rape upon the ,prosecutrix. ln the matter of Priya Patel (supra), while dealing with explanation (1) of Section 7 376(2Hg} gang rape Hon’ble Supreme Court has held that accordmg to explanatlon ( ) wnere a woman 1s raped DV one or more m a goup ol persons actmg 1n Iurtherance of tnelr icommon mtenuon each such person shall be deemed to hav ’ commltted gang rape Wlthm sub a sectlon 2 of bectxon .576 BV ' operauon of the deemlng proVISlon, a person who has not actuallv comm1tted rape 1s deemed to have commltted rape even 1f onlv one of tne goup 1n furtherance of the common mtentlon ’ has commltted rape Common mtennon 1s dealt w1th under Sectlon 34 of the 1 P C It prov1des that when a crumnal act ls done by several persons 1n furtherance of the commonmtennon ‘of ”all, each of such persons is iiablefor that act in the same manner as if it were done bV him aione’ Common intention denotes actlon 1n concert m comnnssmn of crlme of rape Wlth pre arranged pian pnor meetmg of mmd and Wlth element of part1c1pat10n m act10n. The acts maybe dinerent and vary 1n“ character but must be actuated by the same common intention which is different from same intention or similar intention Sine quo non Ior bringing an application under bection 34 of I P C that the act must be done 1n furtherance ol the common mtenuon to do a cnmlnal act the express1on ‘m furtherance OI their, common intention as appearing m the explanation to Section 376(2) relates to intention to commit rape. 10. ln the matter of ?radeep§supra1 the Hon’ble Supreme ourt has further held that to bring home the offence Within the purview of Section 376(2)(g) of I.P.C._ read with explanation l 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 than one accused had acted 1n concert in commisston of crime of rape With pre arranged plan, prior meeting of mind and With, element ol participation in action. Comm‘bn intention would be a e C aon n conso m pre-arrange pan or a plan formed suddenlv at the time of comm1ss1on of onence Whlch Is reflected by element of paltlmpatlon 111 acUon or DV the proof of the Iact of mactlon when tne actlon womd be necessarv The prosecutlon would be requlred to prove pre-meetmg of mmd of accused persons prlor to commlssmn of odence of rape bv substanhal ev1dence or bv cu‘cumstantlal ev1dence and that 1n Iurtherance'of‘such’common intention one or more persons of the group” actuallv committed ‘ oflence of rape on v1ct1m or v1ct1ms Prosecutlon 1s not requJred to prove actual comm1ss1on ol rape bv each and everv accused formlng group 1 l 11 the above prmc1ples of law 1am down by the Apex court 1s appued 1n the facts of the present case then Irom the ev1dence avallable on record 1t 1s ev1dent that there 1s no ev1dence that , Ram Frasad shared the common mtenhon to comlmt rape W1th appellant Jamal as there 1s no ewdence agamst tms appellant (iii; _ ,, . that before the meldent of abductlon, dunng abducuon or , thereafter subsequent thereto at anV pomt 01 tlme he had common mtentlon to commlt rape Wlth the prosecutrlx ln , these c1rcumstances the suomlsswn of the learned counsel for ‘ the appellants that appellant No 2 cannot De conv1cted Ior Vlcommlssmn 01 oh‘ence pumshable under Sectlon 3/6(2)(gj ol ; 12. 1n the result the appeal preferred bv the appellants ls partlv allowed Lonv1ct10n and sentence ol appellant Jallal under becuon ($63 of I P t, are set as1de however hls conv1cuon under bechon 66b ol l P ls malntamed and he 1s sentenced to I P C has to be accepted ‘ undergo R l for two years to pav a fine ol Rs 500/ m default of pavment of nne to further undergo addltlonal Kl lor three months Hls conV1ct10n under sectlon d70(2)(g) l l-' L 1s altered ll/‘x‘ cu 1 rt d l F * g to Section 3'76 of LRC. and he is sentenced to undergo RI. for 10 years, to pay a flne of Rs. IOOO/-, in default of payment of fme, to further undergo additiona1 Rf. for ’6 months. Similarly, conviction and sentence of appellant Ram Prasad ‘ under Sections 363 and 376(2)(g) I.P.C. are set aside and he is acquitted of the above charges. However, his conviction under Section 366 IPC. is maintained and he is sentenced to undergo RI. for two years, to pay a fme of Rs. 5001—, in default of payment of fine, to further undergo additional Ri. for three months: it is stated that he is on bail. His bail bond is cancelled. He shaii surrender forthwith to undergo the remaining jail sentence. f/ P Sdi- ? DmENDRAMISm Y “if,” Judge \\ gb_7-2oo7 i i ,_.5‘r