Supreme Court of India
HANUMAN PRASAD AND ORS.versusSTATE OF RAJASTHAN
- Citation
- 2008 INSC 1315
- Decided
- 18 November 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
Conviction under Section 376(2)(g) IPC requires proof of a common intention to commit rape; absent such proof, the accused cannot be convicted.
Summary
The State of Rajasthan prosecuted eight accused for the rape of a school‑going girl, alleging that the accused had repeatedly abducted and assaulted her. While three of the accused were convicted at trial, the remaining five, including Hanuman Prasad, were acquitted. On appeal, the Rajasthan High Court reversed the acquittals and convicted the five under Section 376(2)(g) of the IPC, imposing ten years' rigorous imprisonment each. The Supreme Court examined whether Section 376(2)(g) can be invoked without proof of a common intention among the accused to commit rape. It held that the essential ingredient of the provision is a proven common intention, which must be established by evidence of a prior meeting of minds or a contemporaneous consensus, and mere presence is insufficient. Finding no evidence of such common intention, the Court set aside the High Court's convictions and allowed the appeals.
Issues considered
- Whether Section 376(2)(g) IPC applies to persons who were present but did not share a common intention to commit rape.
- Whether the prosecution proved a common intention among the accused to commit the rape.
- Whether the High Court erred in convicting the appellants without evidence of common intention.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 164
- Indian Penal Code, 1860s. 34, s. 376(2)(g)
Subjects
rapecommon intentionSection 376(2)(g)IPCconvictionappellate review
Judgment
[2008] 15 S.C.R..258
,_.A . HANUMAN PRASAD AND ORS.
v.
STATE OF RAJASTHAN
(Criminal Appeal No. 1186 of 2001)
NOVEMBER 18, 2008
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
:'c Pimai Code, 1860 - s. 376(2)(g) - Application of -
Necessary ingredients - Held: 'Common intention' to commit
rape is necessafY - On facts, no evidence to show that
accused had a common
.. - '·
intention of committing rape on
'
'victim - Thus, conviction by High Court .uls. 376(2)(g) not
!...'.O sustainable and set aside.
According to the prosecution cas~, accused OS 'i
'
raped the prosecutrix, a school going· girl and other
·accused flirted with her. This continued for severaltimes.
::·E Accused persons threatened her not to disclose this fact
to anxone. After some time prosecutrix told her parents.
FIR was lodged~' The main accused were convicted and
other accused-appellants were acquitted. However, High
Court convicted and sentenced the appellants u/s.
F 376(2)(g) IPC. Hence, these appeals. '1-
Allowing the appeals, the Court
HELD: 1.1. The important expression to attract
Section 376(2)(g) is 'common intention' to commit rape.
G 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
H 258
HANUMAN PRASAD AND ORS. v. STATE OF 259
RAJASTHAN
application. In order to bring in the concept of common ,,,A
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 °B
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 ''C
which has to be gauzed on the facts and circumstances
of each case. [Para 7] [262-E-H; 263-A]
1.2. In the instant case, a bare reading of the entire
evidence of the prosecutrix goes to show that the . D
appellants were not involved in the act of rape. There is
also nothing on evidence to show that they shared
common intention. In the statements recorded in terms
of ss. 161 and 164 Cr.P.C. also that was the position. No
evidence was led to show that the appellants had .a E
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. Thus, conviction by High Court cannot stand
and is set aside. [Paras 4, 8 and 9] [262-8-C; 263-A-C] F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1186 of 2001.
From the final Judgment and Order dated 30.4.2001 of the G
High Court of Judicature of Rajasthan at Jodhpur in S.B .
.- .--1 Criminal Appeal No. 326 of 1999.
WITH
Crl. A.No. 799 of 2002. H
260 SUPREME COURT REPORTS [2008] 16. S.C.R.
A R.K. Kapoor, Anis Ahmed Khan, Doongar Singh, V.J.
Francis and Anupam Mishra for the Appellants.
Naveen Kumar Singh and Aruneshwar Gupta for th_e
Respondents ..
B
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. In these appeals, challenge
is to the judgment ofa learned Single Judge of the Rajasthan
High Court at Jodhpur. Though the appellantswere acquitted
C 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
b 8 accused persons. Three of them who were convicted by the
trial Court namely, Dhruvendra Singh, Shivmuni @ Babua and
•
Sushi! 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
E acquittal was set aside.
2. Background facts, as projected by the prosecution, in
a nutshell, are as follows:
F 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
G 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
H
HANUMAN PRASAD AND ORS. v. STATE OF 261
RA~ASTHAN [DR. ARIJIT PASAYAT, J.]
· she tried to make hue and cry she was beaten by them and A
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 s_he
came to her senses they told her that what had happened and
in case she would tell this incident to anybody, her brothers B
· 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 C
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 lb her mother a·nd then her o
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 E·
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.
-+ F
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 _ G
acquittal so far as the present appellants are concerned was
not sustainable. II held that because of broad language of/ •
Section 376(2)(g), the appellants were also liable to be
convicted.
H
262 SUPREME COURT REPORTS [2008] 16 S.C.R.
I-
A 3. Learned counsel for the appellants submitted that
Section 376(2)(g) has no application so far as the present
appellants are concerned.
4. In order to bring in application of Section 376(2)(g).
B. common intention to commit rape is necessary and the
evidence of the proseputrix in court clearly shows that the ,
'I
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,
c that was the position.
5. Learned 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.
D 6. A bare reading of the entire evidence of the prosecutrix
goes to show that the appellants were not involved in the act 'I
•
of rape. There is also nothing on evidence to show that they
shared common intention.
E 7. The 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
F 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-
G 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
H
HANUMAN PRASAD AND ORS. v. STATE OF 263
RAJASTHAN [DR. ARIJIT PASAYAT, J.]
gauzed on the facts and circumstances of each case. A
8. In 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 B
aspect
9. Above being the position the conviction as recorded by
the High Court cannot stand and is set asic;fe. Appeals are
allowed. Appellants are on bail. Their bail bonds shall st<;ind
dis~a~ed. C
N.J. Appeals allowed.
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