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Patna High Court

Shankar Singh and Anr.versusThe State Of Bihar

Decided
Disposal
ALLOWED

Holding

The trial court erred in convicting the appellants; the judgment is quashed and the appellants are acquitted of all charges.

Summary

The appellants, Shankar Singh and Raju Singh, were convicted by a Sessions Court for kidnapping a minor girl and raping her under Sections 366‑A/34 and 376/34 IPC, based largely on the victim’s testimony that identified another accused, Chandan Kumar, as the rapist. The prosecution alleged that the appellants were present in a vehicle that later transported the victim, but no direct allegation or evidence linked them to the kidnapping or rape. The appellants appealed, arguing that the trial court failed to establish a prior meeting of minds or common intention required under Section 34 IPC and that the evidence against them was speculative. The High Court examined the victim’s statement, the prosecution witnesses, and the investigative lapses, concluding that the essential ingredients of the offences were not proved against the appellants. Consequently, the Court quashed the conviction, acquitted the appellants, and ordered the refund of any fine, allowing the appeal.

Issues considered

  • Whether the prosecution proved the appellants' participation and common intention in the kidnapping and rape under Sections 366‑A and 376 IPC.
  • Whether conviction under Section 34 IPC is sustainable in the absence of evidence of a prior meeting of minds or overt act by the appellants.
  • Whether the evidence on record establishes the elements of the offences beyond reasonable doubt.

Legislation cited

Subjects

  • kidnapping
  • rape
  • minor
  • common intention
  • Section 34 IPC
  • acquittal
  • quash
  • appeal
  • evidence
  • conviction

Judgment

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.261 of 2013
        Arising Out of PS. Case No.-249 Year-2011 Thana- SAUR BAZAR District- Saharsa
     ======================================================
1.    Shankar Singh S/O Pradeep Narain Singh Resident Of Village- Dhanchhoha,
      P.S.- Saur Bazar, District- Saharsa.
2.   Raju @ Rupesh Singh S/O Naresh Singh @ Naresh Pd. Singh Resident Of
     Village- Arraha Mahuwa, P.S.- Ghelarh, District- Madhepura

                                                                     ... ... Appellant/s
                                          Versus
     The State Of Bihar

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s    :        Ms. Sarandha Suman, Amicus Curiae
     For the Respondent/s   :        Mr. S.N. Pd., A.P.P.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
                          CAV JUDGMENT
     Date : 01-07-2026
                   Heard Ms. Sarandha Suman, learned Amicus

      Curiae for the appellants and Mr. S.N. Prasad, learned APP for

      the State through 'Virtual Hybrid Mode'.

                     2. The appellants have preferred the present appeal

      under Section 374(2) read with Section 389(1) of the Code of

      Criminal Procedure challenging the judgment dated 01.04.2013

      and order of sentence dated 04.04.2013 passed in Sessions Trial

      No. 187 of 2012 arising out of Saur Bazar P.S. Case No. 249 of

      2011      by Adhoc Additional Sessions Judge- 1 st, Saharsa,

      whereby and whereunder, the appellants have been convicted

      for the offence punishable under Sections 366-A/34 and 376/34

      of the Indian Penal Code and have been sentenced to undergo
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         rigorous imprisonment for five years and Rs. 5000/- fine and in

         default of payment of fine, to undergo rigorous imprisonment

         for six months under Section 366-A/34 IPC and to undergo

         rigorous imprisonment for ten years and Rs. 5,000/- fine and in

         default of payment of fine, to undergo rigorous imprisonment

         for six months under Sections 376/34 of the IPC. Both the

         sentences were directed to run concurrently.

                      3. Being aggrieved and dissatisfied with the aforesaid

         judgment of conviction and order of sentence, the appellants

         have preferred the present appeal before this Court. The

         appellants have assailed the impugned judgment primarily on

         the ground that the learned trial court failed to appreciate the

         evidence available on record in its proper perspective and has

         wrongly recorded the conviction of the appellants.

                      BRIEF FACTS OF THE CASE

                     4. The case of the prosecution, in brief, is that The

         informant who is the father of the victim has alleged that on

         12.09.2011 at around 10:00 a.m., his daughter aged about 14

         years along with one Doli Kumari went to school. She kept her

         books on the desk and went to the shop of Janardan Ram with

         one Shabnam Praveen to get some chocolates. While returning

         to school, when she reached near Voda's Tower towards north of
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         the shop, Chandan Kumar, Munna Kumar and 3-4 unknown

         persons called her and locked her in the room constructed in the

         tower. Doli Kumari after school went to her house and informed

         the informant that the victim was not in the school. Informant

         went for her search and found from Bhushan Yadav that she was

         seen going inside the tower. When the informant reached there

         the room was locked. It is alleged that the room of the tower is

         the shelter for criminals and Chandan Kumar is anti-social

         element and has committed such type of offences several times.

                     ARGUMENT ON BEHALF OF Amicus Curiae

                     5. Learned Amicus Curiae submitted that the

         conviction of the appellants under Sections 366-A/34 and

         376/34 IPC is wholly unsustainable in law as there is no specific

         allegation either in the FIR or in the evidence of the prosecutrix

         attributing any act of kidnapping, inducement or rape to the

         present appellants. The prosecution case, from its very

         inception, is directed against Chandan Kumar and Munna

         Kumar, who were alleged to have followed the victim near the

         tower and forcibly took her away. The prosecutrix (PW-7)

         specifically stated that Chandan Kumar committed rape upon

         her and has not alleged that any act of sexual assault was

         committed by the appellants. In the absence of any overt act or
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         direct participation on the part of the appellants, their conviction

         merely on the basis of their alleged subsequent participation

         with the co-accused Chandan Kumar and, as such, in absence of

         any direct allegation, the learned trial Court erred in convicting

         the appellants.

                     6. It is further case of appellants that the learned Trial

         Court erroneously invoked Section 34 IPC without there being

         any evidence of prior meeting of minds or common intention

         shared by the appellants with the co-accused. The prosecution

         has failed to establish that the appellants had participated in the

         alleged kidnapping, confinement or commission of rape, or that

         they had knowledge of any such criminal design. Significantly,

         the learnede trial Court itself recorded a finding that the

         prosecution has failed to prove any conspiracy amongst the

         accused persons. Once conspiracy and pre-arranged plan were

         not proved, mere presence of the appellants in a vehicle, as

         alleged by the prosecutrix, could not legally lead to an inference

         that they shared the common intention to commit offences under

         Sections 366-A and 376 IPC. The conviction, therefore, rests on

         presumptions and conjectures rather than on cogent evidence.

                     7. Learned Amicus Curiae, submitted that the

         prosecution        case     suffers     from        serious   infirmities   and
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         deficiencies in investigation which create substantial doubt

         regarding the involvement of the appellants. The Investigating

         Officer admitted that he neither visited the alleged hotel at

         Banmankhi, nor examined any hotel employee, driver of the

         vehicle, or any independent witness from Banmankhi or

         Madhepura. No vehicle number was traced and no material

         evidence connecting the appellants with the alleged offences

         was collected during investigation. In such circumstances, when

         the entire evidence against the appellants is limited to an

         uncorroborated allegation of their presence in a vehicle, the

         prosecution cannot be said to have proved its case beyond

         reasonable doubt. Consequently, the appellants are entitled to

         the benefit of doubt and the judgment of conviction and order of

         sentence deserve to be set aside.

                    ARGUMENT ON BEHALF OF THE STATE

                    8. Per Contra, learned APP appearing for the State while

         opposing the appeal submitted that the learned District court,

         after considering all the evidences on record and exhibits

         submitted on behalf of the parties during the course of trial, has

         rightly convicted the appellants for said offences.

                    ANALYSIS AND CONCLUSION

                    9. Heard the parties.
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                    10. I have perused the lower court records and

         proceedings and also taken note of the arguments canvassed by

         learned counsel appearing on behalf of the parties.

                     11. It would be appropriate to reproduce the provisions

         of Sections 366(A) and 376 of the IPC for the sake of

         convenience and better understanding of the facts, which are as

         under:-

                                          “366A. Procuration of minor girl.—
                                          Whoever, by any means whatsoever, induces
                                          any minor girl under the age of eighteen
                                          years to go from any place or to do any act
                                          with intent that such girl may be, or knowing
                                          that it is likely that she will be, forced or
                                          seduced to illicit intercourse with another
                                          person      shall    be    punishable    with
                                          imprisonment which may extend to ten years,
                                          and shall also be liable to fine.
                                          376. Punishment for rape.—
                                          (1)Whoever, except in the cases provided for
                                          in sub-section (2), commits rape, shall be
                                          punished with rigorous imprisonment of
                                          either description for a term which [shall not
                                          be less than ten years, but which may extend
                                          to imprisonment for life, and shall also be
                                          liable to fine](Subs. by Act 22 of 2018, s. 4,
                                          for “shall not be less than seven years, but
                                          which may extend to imprisonment for life,
                                          and shall also be liable to fine” (w.e.f. 21-4-
                                          2018)
                                          (2)Whoever,—
                                          (a)being a police officer, commits rape—
                                          (i)within the limits of the police station to
                                          which such police officer is appointed; or
                                          (ii)in the premises of any station house; or(
                                          iii)on a woman in such police officer's
                                          custody or in the custody of a police officer
                                          subordinate to such police officer; or
                                          (b)being a public servant, commits rape on a
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                                          woman in such public servant's custody or in
                                          the custody of a public servant subordinate
                                          to such public servant; or
                                          (c)being a member of the armed forces
                                          deployed in an area by the Central or a State
                                          Government commits rape in such area; or
                                          (d)being on the management or on the staff
                                          of a jail, remand home or other place of
                                          custody established by or under any law for
                                          the time being in force or of a women's or
                                          children's institution, commits rape on any
                                          inmate of such jail, remand home, place or
                                          institution; or
                                          (e)being on the management or on the staff
                                          of a hospital, commits rape on a woman in
                                          that hospital; or
                                          (f)being a relative, guardian or teacher of, or
                                          a person in a position of trust or authority
                                          towards the woman, commits rape on such
                                          woman; or
                                          (g)commits rape during         communal     or
                                          sectarian violence; or
                                          (h)commits rape on a woman knowing her to
                                          be pregnant; or
                                          (i)commits rape on a woman when she is
                                          under sixteen years of age; or
                                          (j)commits rape, on a woman incapable of
                                          giving consent; or
                                          (k)being in a position of control or
                                          dominance over a woman, commits rape on
                                          such woman; or
                                          (l)commits rape on a woman suffering from
                                          mental or physical disability; or
                                          (m)while committing rape causes grievous
                                          bodily harm or maims or disfigures or
                                          endangers the life of a woman; or
                                          (n)commits rape repeatedly on the same
                                          woman,shall be punished with rigorous
                                          imprisonment for a term which shall not be
                                          less than ten years, but which may extend to
                                          imprisonment for life, which shall mean
                                          imprisonment for the remainder of that
                                          person's natural life, and shall also be liable
                                          to fine.
                                          Explanation.— For the purposes of this sub-
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                                          section, —
                                          (a)"armed forces" means the naval, military
                                          and air forces and includes any member of
                                          the Armed Forces constituted under any law
                                          for the time being in force, including the
                                          paramilitary forces and any auxiliary forces
                                          that are under the control of the Central
                                          Government or the State Government;
                                          (b)"hospital" means the precincts of the
                                          hospital and includes the precincts of any
                                          institution for the reception and treatment of
                                          persons during convalescence or of persons
                                          requiring        medical      attention     or
                                          rehabilitation;
                                          (c)"police officer" shall have the same
                                          meaning as assigned to the expression
                                          "police" under the Police Act, 1861 (5 of
                                          1861);
                                          (d)"women's or children's institution" means
                                          an institution, whether called an orphanage
                                          or a home for neglected women or children
                                          or a widow's home or an institution called by
                                          any other name, which is established and
                                          maintained for the reception and care of
                                          women or children.
                                          (3)Whoever, commits rape on a woman
                                          under sixteen years of age shall be punished
                                          with rigorous imprisonment for a term which
                                          shall not be less than twenty years, but
                                          which may extend to imprisonment for life,
                                          which shall mean imprisonment for the
                                          remainder of that person's natural life, and
                                          shall also be liable to fine:Provided that
                                          such fine shall be just and reasonable to
                                          meet the medical expenses and rehabilitation
                                          of the victim:Provided further that any fine
                                          imposed under this sub-section shall be paid
                                          to the victim"


                          12. On the basis of materials surfaced during the

         trial, the appellants/accused were examined under Section 313

         of the Cr.PC by putting incriminating circumstances/evidences

         surfaced against them, which they denied and show their
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         complete innocence.

                      13. The learned trial court, on the basis of materials as

         collected during the course of investigation, passed the

         judgment dated 01.04.2013 and order of sentence dated

         04.04.2013 for the offences under Sections 366-A/34 and

         376/34 of the IPC.

                      14. During the trial, the prosecution has examined

         altogether four witnesses, namely:

                     1. P.W.1 – Dr. Bibha Rani (Doctor who examined the

         Victim)

                 2.P.W.2 – Sunil Kumar Bhagat (S.I.)

                 3.P.W.3 – Ram Milan Kumar (Hearsay Witness)

                  4. P.W.4 – Raj Kishore Yadav (Hearsay Witness)

                  5. P.W.5- Dinesh Yadav (Informant)

                P.W.6 - Chandra Bhushan Kumar (Hearsay Witness)

                P.W.7- Babita Kumari (Victim)

                      15. The prosecution has also relied upon following

         documents exhibited during the course of trial:-

                          (i) Ext.1 – Medical Report

                          (ii) Ext.2 – Forwarding on Written Report

                          (iii) Ext.3 – Charge-Sheet
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                          (iv) Ext.3/1- Signature of the informant on Charge

                          Sheet

                          (v) Ext. 4 - Formal F.I.R.

                          (vi) Ext. 5 – Signature of the informant on the

                          Written Report

                          (vii) Ext. 5/1- Signature of Parmanand Yadav on

                          the Written Report which was identified by P.W. 5

                          (viii) Ext. 6- Statement of the victim under Section

                          164 Cr.P.C.

                      16. From the perusal of records, I proceed to analyse

         the statements of the prosecution witnesses whether they have

         supported the prosecution case.

                      P.W.1 – Dr. Bibha Rani-Examined the victim on 14-

         09-2011 at Sadar Hospital, Saharsa. Found her height 4’-11”,

         weight 40 kg, with a wound scar on the right side of her face.

         Breast well developed, axillary and pubic hair present, no

         external injury on the body. Per vaginal examination showed

         hymen not intact, with slight erosion on the posterior vaginal

         wall but no visible external injury. Pathological examination of

         the vaginal swab showed no spermatozoa, with 3-4 epithelial

         cells/HPF and 2-3 pus cells/HPF. Radiological examination

         assessed her age between 14-16 years. She opined there was
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         confirmatory evidence of sexual intercourse. In cross-

         examination, she admitted that measurements of breast size and

         colour of pubic/vaginal hair were not mentioned in her report,

         though she maintained these were not essential for age

         assessment.

                      P.W.2 – S.I. Sunil Kumar Bhagat (Investigating

         Officer) Posted at Baijnathpur O.P. on 13-09-2011 when the

         informant Dinesh Yadav submitted his written petition, which

         was forwarded to Saur Bazar P.S. (Ext.2). He visited village

         Khajuri and investigated, recording statements of the informant

         and witnesses. On receiving information, he went to Madhepura

         where Madhepura Police handed over the victim and accused

         Chandan Kumar to him. He recorded the victim’s statement,

         sent her for medical examination, and arranged recording of her

         statement under Section 164 Cr.P.C. He submitted the charge-

         sheet (Ext.3) and the formal F.I.R. (Ext.4). In cross-examination,

         he conceded he did not record statements of witnesses from the

         hotel in Banmankhi, did not note the vehicle number used to

         transport the victim, and did not record statements of witnesses

         present when the victim was apprehended at Madhepura —

         lapses the trial court treated as investigative deficiencies not

         fatal to the prosecution case.
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                      P.W.5 – Dinesh Yadav (Informant/Father of victim)

         Deposed that on 12-09-2011 at about 10 A.M. his daughter

         Babita Kumari, aged about 14 years, went to school and later to

         purchase a pen, and while returning was caught near the tower

         by accused Chandan Yadav and Munna Kumar and locked in a

         room there. She was later brought to Banmankhi at night, where

         she was raped at a hotel; thereafter the accused were arrested,

         though Shankar Singh and Raju Singh fled from Madhepura. He

         identified his written petition (Ext.5) and the signature of

         Parmanand Yadav (Ext.5/1). In cross-examination, he admitted

         he had no opportunity to speak with his daughter between her

         kidnapping and recovery, and that his statement was based on

         presumption. He denied the defence’s suggestion that he gave

         his statement to police on 13-09-2011 at 6 P.M., asserting

         instead that he submitted his petition around 8-9 P.M. that day.

         He denied any prior enmity with the accused, a suggestion the

         defence failed to substantiate with evidence.

                      P.W.6 – He has deposed that on 12.09.2011 at about

         10:00 A.M., he saw the victim, Babita Kumari, taking a pen

         from a shop when accused Chandan Kumar and Munna Kumar

         forcibly dragged her away. Thereafter, he left the place. On the

         following day, i.e., 13.09.2011, he came to know that Babita
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         Kumari had been kidnapped and recovered. According to him,

         when he met the victim, she disclosed that accused Chandan

         Kumar, Munna Kumar, Raju Kumar and Shankar Singh had

         taken her to Banmankhi, kept her in a hotel and committed rape

         upon her. He further stated that Chandan Kumar was

         apprehended at Madhepura, whereas Munna Kumar and Raju

         Kumar had fled away. He identified the victim as well as the

         accused persons present in Court.

                        In cross-examination, the witness admitted that his

         statement was recorded by the police on 13.09.2011 at about

         6:45 P.M. He further admitted that at the time of giving such

         statement he had neither met the victim nor visited Madhepura.

         He stated that he had earlier deposed before the Court on

         04.08.2012 and denied having stated therein that the victim had

         disclosed the names of all four accused, that she had been taken

         to Banmankhi and raped, or that she had been kept in a hotel at

         Banmankhi for 3–4 days. He further stated that he reached

         Madhepura at about 9:00 P.M. on 13.09.2011 and denied having

         previously stated that he had reached there at 6:00 P.M. The

         witness admitted that he had known both the accused persons

         for about five years and, therefore, could identify them. He

         denied the defence suggestion that he had never gone to
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         Madhepura, that no such occurrence had taken place, or that he

         was deposing falsely.

                      P.W.7 – Babita Kumari (Victim) has Deposed that on

         12-09-2011 at about 10 A.M. she went to school, then to

         purchase a pen, and while returning near the tower was caught

         by Munna Kumar and Chandan Kumar, who locked her in the

         tower and made her inhale something, causing her to lose

         consciousness. She was brought to Banmankhi at night and kept

         in a hotel, regaining consciousness around 12-1 A.M. She

         clearly stated that Chandan Kumar raped her. On 13-09-2011

         around 1:30-2:00 P.M., three persons — Shankar Singh, Raju

         Singh, and Munna Kumar — arrived by vehicle and threatened

         her en route while transporting her to Madhepura. On sighting

         the police, the three fled; she and Chandan Kumar were

         apprehended. She was sent to Baijnathpur O.P. via Madhepura

         Police, then to Saur Bazar P.S., medically examined on 14-09-

         2011, and her statement recorded under Section 164 Cr.P.C. on

         15-09-2011 (Ext.6).

                      In cross-examination, she stated she did not know the

         hotel’s name (being unconscious when booked in), could not

         describe its boundary or give the vehicle’s number or driver’s

         name, but specifically recalled sitting on the middle seat and
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         that her mouth was kept closed, preventing her from raising an

         alarm. She stated the vehicle was parked at Madhepura, that the

         three accused fled leaving her with Chandan Kumar, and that

         police then caught them. She confirmed both accused (Shankar

         Singh and Raju Singh) were known to her, that her father was

         present when she gave her statement, and that she deposed of

         her own free will. She denied no incriminating article was

         recovered from the vehicle. She firmly denied the defence’s

         suggestions that no occurrence took place, that she was never

         taken to Madhepura, and that she had a love affair with Chandan

         Kumar with both intending to marry at Singheshwar Temple

         before being apprehended denying that the accused were falsely

         implicated.

                      17. A careful reading of the testimony of P.W.7

         (Babita Kumari), the victim herself, makes it evident that the

         specific allegation of rape has been attributed solely to co-

         convict Chandan Kumar. In her examination-in-chief, she

         categorically stated that after being taken to Banmankhi and

         kept in a hotel, "Chandan Kumar committed rape upon her."

         Significantly, no allegation has been levelled by the victim that

         either of the present appellants, namely Shankar Singh and Raju

         Singh, subjected her to any act constituting rape or participated
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         in the commission thereof. The role assigned to the appellants is

         confined to their alleged presence on 13.09.2011, when they,

         along with Munna Kumar, are stated to have arrived in a vehicle

         and transported the victim from Banmankhi to Madhepura.

         Even in her cross-examination, the victim consistently

         maintained that Chandan Kumar alone remained with her when

         the police apprehended them, while the other three persons

         allegedly fled away. Thus, the prosecutrix has not attributed any

         overt act of sexual assault to the present appellants. In the

         absence of any specific allegation, cogent evidence, or material

         demonstrating their participation in the alleged act of rape, the

         essential ingredients of the offence punishable under Section

         376 of the Indian Penal Code are not established against the

         present appellants. Merely because the appellants are alleged to

         have accompanied or assisted the principal accused at a

         subsequent stage would not, by itself, be sufficient to attract

         liability under Section 376 IPC, particularly when the

         prosecutrix has consistently attributed the act of rape

         exclusively to Chandan Kumar. Consequently, the conviction of

         the present appellants for the offence under Section 376 IPC

         cannot be sustained on the basis of the evidence available on

         record.
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                      18.     For     establishing       common   intention,   the

         prosecution is required to prove, firstly, a prior meeting of

         minds or a pre-arranged plan; secondly, active participation

         indicating that the appellants, Raju Singh and Shankar Singh,

         shared the common intention to commit the alleged offences of

         kidnapping and rape; or thirdly, circumstances demonstrating

         that they had knowledge of and consciously joined the criminal

         venture from its very inception. Upon a careful consideration of

         the evidence on record, I find that the victim's own testimony

         establishes that the alleged rape was committed by co-accused

         Chandan Kumar and that she was initially kidnapped by Munna

         Kumar and Chandan Kumar. There is no allegation whatsoever

         against the present appellants that they committed rape upon the

         victim. Further, the materials available on record do not disclose

         any circumstance from which it can be inferred that the

         appellants had, from the very beginning, shared a common

         intention with co-accused Chandan Kumar and Munna Kumar

         either to kidnap the victim or to commit rape upon her. In the

         absence of any evidence of prior concert, pre-arranged plan, or

         active participation in the commission of the offence from its

         inception, the essential ingredients necessary to attract the

         principle of common intention are not established against the
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         present appellants.

                      19. The case of the prosecution against the appellants

         is that of having participated in the alleged commission of rape

         with the victim P.W.-7 by having conspired to kidnap the victim

         and commit rape.

                      20. The Hon'ble Supreme Court has consciously held

         that common intention cannot be inferred merely from presence,

         association, or subsequent conduct unless participation and

         shared intention are proved beyond reasonable doubt. It is a

         settled principle of law that for convicting the accused with the

         aid of Section 34 of the IPC the prosecution must establish

         prior meetings of minds. It must be established that all the

         accused had preplanned and shared a common intention to

         commit the crime with the accused who has actually committed

         the crime. It must be established that the criminal act has been

         done in furtherance of the common intention of all the accused.

                      21. In case of Krishnan v. State of Kerala, reported in

         (1996) 10 SCC 508, the Hon’ble Supreme court has held as

         under:

                                               15. Question is whether it is obligatory
                                  on the part of the prosecution to establish
                                  commission of an overt act to press into service
                                  Section 34 of the Penal Code. It is no doubt true that
                                  the court likes to know about an overt act to decide
                                  whether the person concerned had shared the
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                                  common intention in question. Question is whether
                                  an overt act has always to be established? I am of
                                  the view that establishment of an overt act is not a
                                  requirement of law to allow Section 34 to operate
                                  inasmuch as this section gets attracted when “a
                                  criminal act is done by several persons in
                                  furtherance of the common intention of all”. What
                                  has to be, therefore, established by the prosecution
                                  is that all the persons concerned had shared the
                                  common intention. Court's mind regarding the
                                  sharing of common intention gets satisfied when an
                                  overt act is established qua each of the accused. But
                                  then, there may be a case where the proved facts
                                  would themselves speak of sharing of common
                                  intention: res ipsa loquitur.


                      22. In case of Jasdeep Singh v. State of Punjab,

         reported in (2022) 2 SCC 545, the Hon’ble Supreme court has

         held as under:

                                               “20. Section 34 IPC creates a deeming
                                  fiction by infusing and importing a criminal act
                                  constituting an offence committed by one, into
                                  others, in pursuance to a common intention. Onus is
                                  on the prosecution to prove the common intention to
                                  the satisfaction of the court. The quality of evidence
                                  will have to be substantial, concrete, definite and
                                  clear. When a part of evidence produced by the
                                  prosecution to bring the accused within the fold of
                                  Section 34 IPC is disbelieved, the remaining part
                                  will have to be examined with adequate care and
                                  caution, as we are dealing with a case of vicarious
                                  liability fastened on the accused by treating him on
                                  a par with the one who actually committed the
                                  offence.
                                             21. What is required is the proof of
                                  common intention. Thus, there may be an offence
                                  without common intention, in which case Section 34
                                  IPC does not get attracted.
                                              22. It is a team effort akin to a game of
                                  football involving several positions manned by
                                  many, such as defender, mid-fielder, striker, and a
                                  keeper. A striker may hit the target, while a keeper
                                  may stop an attack. The consequence of the match,
                                  either a win or a loss, is borne by all the players,
                                  though they may have their distinct roles. A goal
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                                  scored or saved may be the final act, but the result is
                                  what matters. As against the specific individuals
                                  who had impacted more, the result is shared
                                  between the players. The same logic is the
                                  foundation of Section 34 IPC which creates shared
                                  liability on those who shared the common intention
                                  to commit the crime.
                                              23. The intendment of Section 34 IPC is
                                  to remove the difficulties in distinguishing the acts
                                  of individual members of a party, acting in
                                  furtherance of a common intention. There has to be
                                  a simultaneous conscious mind of the persons
                                  participating in the criminal action of bringing
                                  about a particular result. A common intention qua
                                  its existence is a question of fact and also requires
                                  an act “in furtherance of the said intention”. One
                                  need not search for a concrete evidence, as it is for
                                  the court to come to a conclusion on a cumulative
                                  assessment. It is only a rule of evidence and thus
                                  does not create any substantive offence.
                                              24. Normally, in an offence committed
                                  physically, the presence of an accused charged
                                  under Section 34 IPC is required, especially in a
                                  case where the act attributed to the accused is one
                                  of instigation/exhortation. However, there are
                                  exceptions, in particular, when an offence consists
                                  of diverse acts done at different times and places.
                                  Therefore, it has to be seen on a case-to-case
                                  basis.”


                      23. The aforesaid judgment was reiterated by the

         Apex Court in case of Constable 907 Surendra Singh & Anr.

         Versus State Of Uttarakhand reported in (2025) INSC 114.

                          24. What emerges from the aforesaid legal

         principles that the statement of the victim may be treated as a

         “sterling witness” and her testimony can be relied upon without

         additional corroboration, provided its quality and credibility are

         of an exceptionally high standard. The statement of the

         prosecutrix should remain consistent throughout, from the initial
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         version to the oral evidence, barring minor discrepancies, and

         should not give rise to any doubt regarding the prosecution’s

         case. Although, in cases of sexual offences, the testimony of the

         victim is generally sufficient, a version that is unreliable or

         inadequate, suffering from evident shortcomings and gaps, may

         render it difficult to sustain a conviction.

                          25. From the above admitted facts, I find that no

         case under Section 376 is made out against the appellants in

         absence of any allegation made by the P.W.-7 (victim).

                      26. I find that the learned trial Court has erred in

         arriving to conclude that the appellants namely, Shankar Singh

         and Raju @ Rupesh Singh had the similar intention like the

         accused Chandan Kumar and Munna Kumar, who had actively

         participated in the kidnapping of the victim in absence of their

         presence at the place of occurrence and had committed rape

         cannot be sustained. I am of the opinion that the trial court has

         erred in convicting the appellants under Sections 376/34 of the

         Indian Penal Code, as such, the impugned judgment is liable to

         be quashed and set aside.

                      27. The impugned judgment dated 01.04.2013 and

         order of sentence dated 04.04.2013 passed in Sessions Trial No.

         187 of 2012 arising out of Saur Bazar P.S. Case No. 249 of 2011
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                      by Adhoc Additional Sessions Judge- 1st, Saharsa, is hereby

                      quashed and set aside. Consequently, the above-named

                      appellants/accused are acquitted from all the charges levelled

                      against them. Since the appellants are on bail, as such, they are

                      discharged from the liability of their bail bonds. The fine

                      deposited by the appellants, if any, shall be refunded to them.

                                   28. Accordingly, the present appeal is allowed.

                                   29. The Patna High Court Legal Services Committee

                      is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten

                      Thousand) to Ms. Sarandha Suman, learned Amicus Curiae, as

                      consolidated fee, for rendering her valuable professional service

                      for disposal of the present appeal.

                                   30. Office is directed to send back the lower court

                      records along with a copy of the judgment to the learned District

                      Court forthwith.


                                                  (Purnendu Singh, J)

Niraj/-
AFR/NAFR
CAV DATE                18.06.2026
Uploading Date          01.07.2026
Transmission Date       01.07.2026


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