1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION REVISION APPLICATION NO. 696 OF 2009 Kundan Raj Borgohain. ... Applicant. V/s. The State of Maharashtra (at the instance of Trombay Police Station). ... Respondent. Mr. H.H. Ponda for the Applicant. Mr. Y.M. Nakhwa, APP for the State. Mrs. Maharukh Adhenwala for the Complainant. CORAM : S.C. DHARMADHIKARI,J. DATED : 04th JANUARY 2010. P.C. :- This is a Revision Application challenging the order passed by the learned Sessions Judge refusing to discharge the Applicant. 2. Sessions Case No.406 of 2009 is pending on the file of the learned Judge (Additional Sessions Judge, C.R. No.6, Sewri, Mumbai). The present Applicant is Accused No.6. 3. The Applicant applied for discharge and contended that the only allegation against him is that when the other accused came alongwith the victim to the flat he greeted them. He took them inside the flat after introduction. Thereafter, the other accused went to the bed room and the present Applicant switched on some music. He left the room. The present accused was neither in the company of others nor did 2 he had any point of time allegedly involved in the acts complained off. It is contended by Mr. Ponda that this Applicant has been therefore implicated only because the house in which the alleged act was performed was that of this accused. That the other accused were allowed therein. However, there is absolutely no material on record to show that this accused had any common intention with the others to commit the crime. Therefore, mere presence at the house cannot be said to be something which can be said to be acting in furtherance of a common intention to commit the offence. 4. Inviting my attention to Section 376(2)(g) of the I.P.C. together with the explanation 1 thereto and relying upon the decisions in the field, Mr. Ponda submits that if the necessary and relevant ingredients are missing, then, there is absolutely no ground for proceeding against this Applicant and he should have been discharged. 5. On the other hand, Mr. Nakhwa, learned APP appearing for the prosecution took me through the statements of the complainant - victim and that of the watchman of the building. He submitted that the prosecution version is based on all these statements and further material on record. At this stage, it will not be proper to presume that the Applicant herein has no role to play in the crime. On the other hand, from the statement of the watchman of the building it is apparent that the present accused was known to others. He had intimated the watchman in advance about the accused 3 and the victim visiting the premises late in the night. Therefore, it is a case falling within the relevant statutory provisions and therefore, the present Applicant cannot be discharged. He submits that the Revision Application is devoid of any merits and must be dismissed. 6. With the assistance of Mr. Ponda, I have perused the Application and the annexures thereto including the statements of the victim. I have also perused the statement of the watchman of the building. I have also perused the relevant statutory provisions and the decisions brought to my notice. 7. The principles which are to be applied at this stage are well settled. They need not be set out or repeated in this order. The Indian Penal Code has, in Section 375, after defining the term Rape, in Section 376(2)(g) speaks of a gang rape. Whoever commits gang rape is to be punished with rigorous imprisonment as provided in this provision. Further, explanation 1 states that where woman is raped by one or group of persons acting in furtherance of their common intention, each of the person be deemed to have committed gang rape within the meaning of the sub-Section. 8. The decisions which are brought to my notice by Mr. Ponda are rendered on Appeals after the order of conviction and sentence has been recorded. After a full fledged trial and on scrutiny and assessment of the entire evidence that the 4 Courts have concluded that the persons/accused before them could not be held to be acting in furtherance of a common intention. It is in the facts of that case, the Supreme Court came to the conclusion that the principle on which Section 34 of the IPC is based so also the explanation 1 are not applicable. 9. In the instant case, the matter is at the stage of framing of charges. The learned Judge has considered the submissions which have been canvassed before me. Prima- facie, he seems to be right in holding that the present Applicant can be proceeded against. The acts of the present Applicant cannot be seen in isolation as projected before me. The statements of the watchman and that of the victim, do indicate that the present Applicant was also known to the victim and others who are alleged to have committed the offence. Ultimately, the prosecution will have to be given a liberty in such cases to establish that the accused person had acted with common intention. It is not as if at this stage itself a conclusion can be drawn and that too on the basis of the isolated circumstances highlighted before me. The entire evidence will have to be scrutinized and thereafter, the Court can record a definite conclusion as to whether the present Applicant can be said to be guilty of the offence alleged. At this stage, and when the principles are clear inasmuch as it is not necessary that the prosecution should adduce clinching proof of a completed act of rape of the victim by each of the accused that the prima-facie observations require no 5 interference in my revisional jurisdiction. I cannot hold that in the peculiar facts of this case, the learned Judge had committed any error apparent or the order suffers from perversity so as to call for interference in my revisional jurisdiction. The Revision Application is, therefore, devoid of any merit and is accordingly dismissed. (S.C. DHARMADHIKARI,J.)