OM PRAKASHversusSTATE OF HARYANA

                       [2011] 7 S.C.R. 1080


A                          OM PRAKASH
                                 v.
                       STATE OF HARYANA
                (Criminal Appeal No. 421 of 2007)
                           JULY 7, 2011
B
     [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

        Penal Code, 1860:

c        s. 376(2)(g) - Gang rape - A/legation that accused-J
    kidnapped prosecutrix at knife point and brought her to the
    house of the appellant - Accused-J talked secretly with the
    appellant whereafter appellant provided space and cot to the
    accused-J - Appellant slept in the same room near the door
    to guard against the entry of any other person as well as to
0
    prevent the prosecutrix from going out - Thereafter accused-
    J raped prosecutrix - Prosecutrix cried for help but appellant
    did not come to her rescue - Conviction of accused-J and
    appellant u/s.376(2)(g) - Challenged by appellant - Held:~
    There was no doubt that accused raped the prosecutrix - In
E   the entire episode, no role was attributed to the appellant -
    There was no prior plan or meeting of minds between the
    appellant and accused-J to either kidnap or to rape the
    prosecutrix - Intention to kidnap and commit rape was,
    therefore, the intention of accused-J alone - Collective
F   reading of the evidence showed that the role of the appellant
    was limited to wrongfully confining the prosecutrix and npt
    rendering help when asked for - The prosecution did not
    produce any evidence either directly or at least by
    circumstantial evidence to show that the factum of kidnappingl
G   as well as intent to commit a rape was known to the appellan~
    - Conviction of appellant u/s.376(2)(g) set aside - However,:
    his conviction u/s.368 is maintained.

        s.376(2)(g) - Essential ingredients - Held: Where a
H                            1080
        OM PRAKASH v. STATE OF HARYANA                     1081


  woman is raped by one or more in a group of persons acting        A
 in furtherance of their common intention, each of the persons
  shall be deemed to have committed gang rape within the
  meaning of s.376(2)(g) - Act of gang rape has to be in
  furtherance of their common intention before the deeming
  fiction of law can be enforced against the accused - It may       B
. not be necessary for the prosecution to adduce evidence of
  a completed act of rape by each one of the accused - The
  provision embodies a principle of joint liability and the
  essence of that liability is existence of common intention -
  Common intention pre-supposes prior concert as there must         c
  be meeting of minds, which may be determined from the
  conduct of the offenders which is revealed during the course
  of action.

     FIR: Rape of young girl - Delay in lodging FIR - Effect
on prosecution case - Held: A young girl who underwent the          D
trauma of rape is likely to be reluctant in describing those
events to anybody including her family members - In the
instant case, the moment she told her parents, the report was
lodged with the police without any delay - Since reasonable
explanation was rendered by the prosecution, delay would not        E
prove fatal to the case of the prosecution.

       Evidence: Contradictions in the statements of the
 prosecution witnesses - Held: Every small discrepancy or
 minor contradiction which may erupt in the statements of a         F
 witness because of lapse of time, keeping in view the
 educational and other background of the witness, cannot be
 treated as fatal to the case of the prosecution - The court must
 examine the statement in its entirety, correct perspective and
 in light of the attendant circumstances brought on record by       G
 the prosecution.

   According to the prosecution, on 2th January, .1994,
when the prosecutrix aged about 14 years went out of the
house to throw rubbish, accused-J caught hold of her
and at knife point took her away on a cycle across a                H
   1082    SUPREME COURT REPORTS              [2011) 7 S.C.R.


A distance of 15·20 Km. to the house of the appellant at
  Guiab Nagar. Accused-J talked secretly with the appellant
  to arrange space and a cot. Thereafter accused-J had
  intercourse with the prosecutrix twice after threatening
  her on knife point. The appellant did not come to her
s rescue when she cried for help. He slept in the same.
  room near the door to guard against the entry of any
  other person as well as to prevent the prosecutrix from
  going out. The next day accused·J dropped her at the
  house of her brother-in-law (PW-7). PW-7 came to the
c house of the prosecutrix the next day and informed PW-
  6, the father of the prosecutrix that on previous day,
  accused-J had taken the prosecutrix and in the morning
  dropped her back at his house. PW-6 brought back the
  prosecutrix. She did not tell anything to PW-6 at that time,
0 however, after 2-3 days, she narrated the entire incident.
  PW-6 lodged the report on 6th January, 1994. The trial
  court convicted accused-J under Sections 363, 366,
  376(2)(g), IPC and the appellant under Sections 368 and
  376(2)(g), IPC. The High Court affirmed the same. Ag_ainst
E the order of the High Court, the appellant alone filed the
  instant appeal.

       Disposing of the appeal, the Court

      HELD: 1. The prosecutrix clearly stated that the
F appellant did not directly or indirectly participate in the
  act of rape. It was not stated by the prosecutrix that she
  either overheard or was even certain as to what both of
  them discussed within that short duration. Statement of
  PW6 was primarily based upon what was narrated to him
G by the prosecutrix so was the statement of PW7. They
  had no personal knowledge about the event and role, if
  any, played by the appellant. The entire material evidence
  related to the medical evidence of accused-J for
  performing the sexual intercourse and that of the
  prosecutrix that she was subjected to sexual intercourse.
H
       OM PRAKASH v. STATE OF HARYANA                  1083


It was in no way even suggestive of the role, if any, which    A
was played by the appellant. There was no doubt that
accused-J raped the prosecutrix. As far as the appellant
was concerned, according to the prosecutrix, he did not
come to her help when she tried out to him and thus the
appellant wrongly ensured her confinement in the room          B
where accused-J subjected her to the assault of rape. In
this entire episode no role was attributed to the appellant.
Even according to PW7, accused.J alone came to drop
her at his place. [Para 6] [1089-D-H; 1090-A]
     2. There was some delay in lodging the FIR but that       C
delay was well explained. A young girl who underwent
the trauma of rape was likely to be reluctant in describing
those events to anybody including her family members.
The moment she told her parents, the report was lodged
with the police without any delay. Once a reasonable           D
explanation is rendered by the prosecution then mere
delay in lodging of a first information report would not
necessarily prove fatal to the case of the prosecution.
[Para 8] [1091-C-0]
                                                               E
     3. The appellant could not bring to notice any
material contradictions in the statements of the
prosecution witnesses. Every small discrepancy or minor
contradiction which may erupt in the statements of a
witness because of lapse of time, keeping in view the F
educational and other background of the witness, cannot
be treated as fatal to the case of the prosecution. The
court must examine the statement in its entirety, correct
perspective and in light of the attendant circumstances
brought on record by the prosecution. The High Court in G
its judgment did not discuss whether the ingredients of
Section 376(2)(g) of the IPC are satisfied in the instant
case. [Paras 9, 10] [1091-C-F]
    4. A plain reading of Section 376(2)(g) with
Explanation 1 thereto showes that where a woman is             H
   1084    SUPREME COURT REPORTS             [2011] 7 S.C.R.


A 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 Section 376(2)(g) of the IPC. In
  other words, the act of gang rape has to be in furtherance
9 of their common intention before the deeming fiction of
  law can be enforced against the accused. It may not be
  necessary for the prosecution to adduce evidence of a
  completed act of rape by each one of the accused. The
  provision embodies a principle of joint liability and the
c essence of that liability is existence of common intention.
  The common intention pre-supposes prior concert as
  there must be meeting of minds, which may be
  determined from the conduct of the offenders which is
  revealed during the course of action. [Para 11] [1093-C·
D H; 1094-A]
       Ashok Kumar v. State of Haryana (2003) 2 SCC 143;
  Bhupinder Sharma v. State of Himacha/ Pradesh (2003) 8
  SCC 551: 2003 (4) Suppl. SCR 792; Pardeep Kumar v.
  Union Administration, Chandigarh (2006) 10 SCC 608: 2006
E (4) Suppl. SCR 594; Priya Patel v. State of M.P. (2006) 6
  sec 263: 2006 (3) Suppl. SCR 456 - relied on.
       5. In the case in hand, the prosecutrix was not gang-
  raped. The intention to kidnap and commit rape or subject
F her to sexual assault was the intention of accused-J
  alone. There was no prior plan or meeting of minds
  between the appellant and accused.J to either kidnap or
  to rape the prosecutrix. A collective reading of the
  evidence would show that the role of the appellant was
G limited to wrongfully confining the prosecutrix and not
  rendering help when asked for. However, it would have
  been an entirely different situation if the prosecutrix had
  stated in her statement that the appellant was told by
  accused.J about her alleged kidnapping and his intention
  to rape her, during the short conversation that they are
H
       OM PRAKASH v. STATE OF HARYANA                    1085


stated to have had before entering the room. It is clear        A
from her statement that she did not even claim that she
overheard the conversation. As per the evidence of the
prosecution, the room where the prosecutrix was raped
belonged to the uncle of the appellant who had died.
Except the statement of DW1, no other defence was led           B
by the appellant to prove that he was innocent or was
falsely implicated. Though DW1 made a vague statement
that on the date of occurrence, no girl had come to that
room, that statement cannot be said to be truthful and it
did not inspire confidence. Thus, it was not possible for       c
the Court to draw an adverse inference against the
appellant when the prosecution was not able to lead any
definite evidence in that regard. There is no evidence that
there was a common concert or common intention or
meeting of mi.nds prior to commis~Jon of the offence            0
between the two accused. The Judgment of the trial court
convicting the accused under Section 376(2)(g) of the IPC
is set aside and he is acquitted of the said charge.
However, his conviction under Section 368 of the IPC and
the sentence awarded by the High Court is maintained.
[Paras 13, 17] [1096-B-G; 1097-E-G; 1098-B-D]                   E

     Smt. Saroj Kumari v. The State of U.P. (1973) 3 SCC 669
- relied on.

                    Case Law Reference:                         F
  (2003) 2 sec 143             relied on       Para 11
  2003 (4) Suppl. SCR 792      relied on       Para 11
  2006 (4) Suppl. SCR 594      relied on       Paras 12, 13
                                                                G
  2006 (3) Suppl. SCR 456      relied on       Para 12
  (1973) 3 sec 669             relied on       Para 15
    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 421 of 2007.                                                H
    . 1086   SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A        From the Judgment & Order dated 9.8.2005 of the High
     Court of Punjab & Haryana at Chandigarh in Criminal Appeal
     No. 119-SB of 1996.

         Suresh Chandra Tripathy for the Appellant.
B        Rajeev Gaur Naseem, Kamal Mohan Gupta for the
     Respondent.

         The Judgment of the Court was delivered by
        SWATANTER KUMAR J. 1. The two aCCl!Sed Om
C Prakash (hereinafter referred as 'the appellant') and Jai
  Prakash were committed to the Court of Additional Sessions
  Judge at Jagadhri vide order dated 30th September, 1994 to
  face trial in the case of Jai Prakash under Sections 363, 366
  and 376(2)(g) of the Indian Penal Code, 1860 (in short the 'IPC')
D and in the case of appellant under Sections 368 and 376(2)(g)
  IPC. Both these accused pleaded not guilty to the charge and
  faced trial. The prosecution - examined as many as nine
  witnesses to bring home the guilt of the accused in response
  to the questions posed by the Court disclosing incriminating
E evidence against the accused under Section 313 of the Code
  of Criminal Procedure, 1973 (in short the 'Code'). The appellant
  denied the incident and stated that he had never known either
  Jai Prakash or the prosecutrix. Jai Prakash took the stand that
  he used to visit the house of one Bhagwan Dass and there was
F enmity between Bhagwan Dass and the father of the
  prosecutrix. Fufa of the prosecutrix, Jeet Ram, was posted at
  the Yamuna Nagar police station and because of personal
  animosity, he has been falsely implicated. The trial court vide
  a detailed judgment dated 30th January, 1996 recorded a
G finding that all the essential ingredients constituting offence for
  which the accused were charged were fully proved and
  subsequently convicted both the accused of the said offences.
  After hearing them on the quantum of sentence and noticing the
  antecedents and the family background of the accused, the trial
H
·•       OM PRAKASH v. STATE OF HARYANA
              [SWATANTER KUMAR, J.]
                                                               1087


 court took a lenient view and sentenced Jai Prakash to undergo         A
 rigorous imprisonment for five years under Section 363 of the
 IPC and to pay a fine of Rs.250/- and in default of payment of
 fine, to undergo further rigorous imprisonment for four months.
 The Court also convicted him under Section 376 (2)(g) IPC with
 a sentence of rigorous imprisonment for ten years and fine of          B
 Rs.500/- and in default of payment of fine to undergo further
 rigorous imprisonment for six months. However, the Court
 awarded sentence of five years rigorous imprisonment to
 appellant under Section 368 IPC and a fine of Rs.250/- and in
 default of payment of fine to further undergo rigorous                 c
 imprisonment for four months and/or for the offence under
 Section 376(2)(g) of the IPC awarded him R.I. for seven years
 and fine of Rs.500/- and to further undergo, in the event of
 default of payment of fine, four months R.I. Dissatisfied with the
 judgment of the trial court, Jai Prakash and the appellant
                                                                        0
 preferred separate appeals before the High Court of Punjab
 and Haryana at Chandigarh. The same were dismissed and
 the judgment of conviction and order of sentence as awarded
 by the trial court, was upheld by the High Court vide its well
 reasoned judgment dateQ 9th August, 2005. Against this
 judgment of the High Court, the appellant alone has filed the          E
  present appeal.
      2. Learned counsel appearing for the appellant, while
 challenging the judgment of the High Court before this Court,
 has contended that there was an inordinate delay in lodging the        F
 FIR, the appellant had been falsely implicated in the case and
 he had no role to play whatsoever either in the alleged
 kidnapping of the prosecutrix or in raping her. According to
 him, even if the entire evidence is read in its correct
 perspective, the appellant would be entitled to the benefit of         G
 doubt and consequent acquittal. It is also contended that the
 basic ingredients of Section 376 (2)(g) IPC are not satisfied
 in the present case.
      3. In order to examine the merit of these contentions, -it will
 be important for us to notice the case of the prosecution in brief.    H
    1088     SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A         4. Complainant Ram Pal (PW-6) is a resident of House
     No. 115 in Vijay Colony and is a labourer in paper mill,
     Yamunanagar. He has five daughters and one son aged about
     three years. On the evening of 2nd January, 1994, one of his
     daughters the prosecutrix, aged about 14 years, went out of the
B    house to throw rubbish but she did not return. The complainant
     searched for her but she could not be traced. On 3rd January,
     1994, his son-in-law Bali Ram (PW-7) came from Village Topra
     and told him that Jai·Prakash had taken the prosecutrix on his
     cycle the previous night and then dropped her to Bali Ram's
c    House that morning. After receiving this information he brought
     his daughter from the village Topra; she did not tell anything to
     the complainant at that time but after 2-3 days, she narrated
     the entire incident. She informed that she had been taken away
     by Jai Prakash accused at knife pojnt and he raped her in the
     house of the appellant in his presence. Ram Pal (PW6), father
0
    of the prosecutrix lodged the report with the police on 6th
    January, 1994. Thereafter, as already noticed, Jai Prakash and
    the appellant were tried by the court of competent jurisdiction
    and convicted. In terms of the statement of the prosecutrix, Jai
    Prakash, accused threatened te kill her if she did not
E   accompany him. She was taken on his cycle to Guiab Nagar
    after crossing the railway line. He took her to the house of the
    appellant and talked secretly with him to arrange space and a
    cot. Both the accused slept in the same room in which she was
     raped. It has also come in evidence that Jai Prakash had
F   intercourse with her twice after threatening her with a knife and
    the appellant did not come to her rescue despite her cries for
    help. The appellant slept in that very room near the door to guard
    -figainst entry of any other person as well as to prevent her from
    going out. Jai Prakash threatened to kill the prosecutrix with his
G   knife if she raised alarm and at about 3-4 A.M., Jai Prakash-
    accused took her away to village Topra on cycle and left her at
    the house of her brother in law namely Bali Ram.

      5. Dr. V.K. Sharma (PW8) had stated before the Court that
H he had examined Jai Prakash on 17th January, 1994 ar)d in
        OM PRAKASH v. STATE OF HARYANA                     1089
             [SWATANTER KUMAR, J.]

his opinion, he was capable of performing intercourse and this     A
fact is proved by his report (Ex.PG).

       6. Dr. Neeru Ohri (PW2) had medically examined the
 prosecutrix on 6th January, 1994 and had opined that the girl
 had been subjected to coitus. Besides medical experts and the 8
 investigating officer, there are three material witnesses-the .
 prosecutrix (PW5), Ram Pal (PW6) and Bali Ram (PW7). All
 these witnesses have stated what they were told by the
 prosecutrix. Thus, the basic foundation for either acquittal or
 holding the accused guilty primarily depends upon the C
 statement of these witnesses. According to her, the appellant
 met Jai Prakash after he had taken her away at a knife point
 to Guiab Nagar and there they had talked for some time and
 then the appellant had provided aeot   and space to Jai Prakash.
 It is not the statement of the prosecutrix that she either over ·
 heard or was even certain as to what both of them discussed D
 within that short duration. She has clearly stated that the
 appellant did not directly or indirectly participate in the act of
 rape. We are not concerned with the offence committed by Jai
 Prakash in the present appeal. Statement of PW6 is primarily
 based upon what was narrated to him by the prosecutrix so is E
 the statement of PW7. They have no personal knowledge about
 the event and role, if any, played by the appellant. The entire
 material evidence would relate to the medical evidence of Jai
 Prakash for performing the sexual intercourse and that of the
 prosecutrix that she was subjected to sexual inter course. It is · F
 in no way even suggestive of the role, if any, which has been
 played by the appellant. There can hardly be any doubt that Jai
 Prakash raped the prosecutrix. As far as the appellant is
 concerned, according to the prosecutrix, he did not come to her
 help when she tried out to him and thus the. appellant wrongly G
 ensured her confinement in the room where Jai Prakash
 subjected her to the assault of rape. To put in a nutshell the
 prosecutrix was threatened at knife point and taken away on ·
 the pillion rider on a cycle across a distance of 15 to 20 km,
·raped and then dropped to her brother in law-Bali Ram's house H
    1090     SUPREME COURT REPORTS                  [2011) 7 S.C.R.      •·
A the next morning. In this entire episode no role is attributed to
  the appellant. Even according to Bali Ram (PW7), Jai Prakash
  alone came to drop her at his place. In the words of the
  prosecutrix" I asked Om Parkash accused to some (sic) to my
  help but he did not pay any heed. Om Parkash accused has
B slept in that very room. So that he may guard the entry of any
  other persons and so may guard my going out.. .. "

         7. This is the precise role, in the words of the prosecutrix,
    which is attributable to the appellant. Even if we take the
C   statement of the prosecutrix as gospel truth, nothing more can
    be attributed to the appellant. Of course, Gandhi Prasad (DW1),
    the defence witness stated that he had been a tenant in Moti
    Ram's house in Guiab Nagar since five years. His room was
    situated towards the eastern side of the house and Moti Ram
    and his family were residing in the opposite room. Moti Ram
D   had since died. The appellant was stated to be the nephew of
    Moti Ram but neither the owner of the house nor a tenant. The
    appellant was married, he denied that any girl ever came to
    those premises. The statement of DW1 does not really
    advance the case of the defence but the effect of the matter
E   remains that the appellant was stated to be neither the owner
    nor tenant of the premises in question. Be that as it may, DW1 's
    statement cannot be given greater weightage than the statement
    of the prosecutrix. It is not even the statement of DW 1 that he
    was there on that particular day. He has only stated that in
F   January, 1994, he was in his room which obviously does not
    inspire confidence as it cannot be inferred that he was staying
    in the room the entire month, day in and day out. His statement
    was that no girl came to those premises on 2nd January, 1994.
    He does not even say that for the entire day and night of 2nd
G   January, 1994, he was present in the house. For the above
    reasons and even otherwise, DW1 appears to be an interested
    witness being a friend of the appellant as he is staying in the
    same premises and would be interested in protecting the
    appellant.
H
·•      OM PRAKASH v. STATE OF HARYANA
             [SWATANTER KUMAR, J.]
                                                            1091


     8. There is some delay in lodging the FIR but that delay       A
 has been well explained. A young girl who has undergone the
 trauma of rape is likely to be reluctant in describing those
 events to any body including her family members. The moment
 she told her parents, the report was lodged with the police
 without any delay. Once a reasonable explanation is rendered       B
 by the prosecution then mere delay in lodging of a first
 information report would not necessarily prove fatal to the case
 of the prosecution.

     9. The learned counsel appearing for the appellant has         C
 hardly been able to bring to our notice any material
 contradictions in the statements of the prosecution witnesses.
 Every small discrepancy or minor contradiction which may erupt
 in the statements of a witness because of lapse of time,
 keeping in view the education~! and other background of the
 witness, cannot be treated as fatal to the case .of the            D
 prosecution. The court must examine the statement in its
 entirety, correct perspective and in light of the attendant
 circumstances brought on record by the prosecution.

      10. The High Court in its judgment has not discussed          E
 whether the ingredients of Section 376(2)(g) of the IPC are
 satisfied in the present case. It will be useful to refer the
 provisions of Section 376(2) of the IPC at this stage which read
 as under:

     "376(1) xxx xxx                                                F

     (2) Whoever,-

     (a) being a police officer commits rape-

     (i) within the limits of the police station to which he is     G
     appointed; or

     (ii) in the premises of any station house whether or not
     situated in the pblice station to which he is appointed; or
                                                                    H
    1092   SUPREME COURT REPORTS                  [2011) 7 S.C.R.
                                                                       •·
A      (iii) on a woman in his custody or in the custody of a police
       officer subordinate to him; or

       (b) being a public servant, takes advantage of his official
       position and commits rape on a woman in his custody as
       such public servant or in the custody of a public servant
8
       subordinate to him; or

       (c) 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'
c      s or children' s institution takes advantage of his official
       position and commits rape on any inmate of such jail,
       remand home, place or institution; or

       (d) being on the managem~nt or on the staff of a hospital,
D      takes advantage of his official position and commits rape
       on a woman in that hospital; or

       (e) commits rape on a woman knowing her to be pregnant;
       or

E      (f) commits rape on a woman when she is under twelve
       years of age; or

       (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
F      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

G      Explanation 1. 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 m~aning of this sub-
       section.
H
••      OM PRAKASH v. STATE OF HARYANA
             [SWATANTER KUMAR, J.]
                                                             1093


     Explanation 2.- "women's or children's institution" means        A
     an institution, whether called an orphanage or a home for
     neglected women or children or a widows' home or by any
     other name, which is established and maintained for the
     reception and care of women or children.
                                                                      B
     Explanation 3.-" 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."

       11. A plain reading of Section 376(2)(g) with Explanation C
 I thereto shows that where a woman is raped by one or more
 of 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 Section 376 (2)(g)
 of the IPC. In other words, the act of gang rape has to be in D
 furtherance of their common intention before the deeming
 fiction of law can be enforced against the accused. This Court
 in the case of Ashok Kumar v. State of Haryana, (2003) 2
 sec -143 had occasion to dwell on Explanation 1 to Section
 376(2) (g), IPC while examining whether the appellant Ashok E
  Kumar could be convicted under the same because at the
 crucial time, he happened to be in the house of the co-accused
 Anil Kuma~ in whose case the judgment of conviction under
  Section 376(2)(g) had attained finality. The Court observed that
 the prosecution must adduce evidence to show that more than F
 one accused has acted in concert and in such an event, if rape
  had been committed by even one of the accused all will be guilty
  irrespective of the fact that she has not been raped by all of
 them. Therefore, it may not be necessary for the prosecution
 to adduce evidence of a completed act of rape by eaco one of F
 the accused. The provision embodies a principle of joint liability
 and the essence of that liability is existence of common
  intention. That common intention pre-supposes prior concert as.
 there must be meeting of minds, which may be determined from
 the conduct of the offenders which is revealed during the course
                                                                      H
    1094    SUPREME COURT REPORTS                 (2011] 7 S.C.R.
                                                                    •·
A of action. After examining the circumstances relied upon by the
  prosecution to indicate concert, the Court in Ashok Kumar
  (supra) concluded that mere presence of the appellant could
  not establish that he had shared a common intention with the
  co-accused to rape the prosecutrix. A similar view was taken
B in the case of Bhupinder Sharma v. State of Himachal
  Pradesh ((2003) 8 sec 551] in which the court held as under:

        "14. In cases of gang rape the proof of completed act of
        rape by each accused on the victim is not required. The
        statutory intention in introducing Explanation 1 in relation
c       to Section 376(2)(g) appears to have been done with a
        view to effectively deal with the growing menace of gang
        rape. In such circumstances, it is not necessary that the
        prosecution should adduce clinching proof of a completed
        act of rape by each one of the accused on the victim or
D       on each one of the victims where there are more than one
        in order to find the accused guilty of gang rape and convict
        them under Section 376 IPC."

       12. Another Bench of this Court in the case of Pardeep
E Kumar v. Union Administration, Chandigarh, ((2006) 10 SCC
  608] after noticing the judgment of this Court in the case of
  Ashok Kumar (supra), Bhupinder Sharma (supra) and Priya
  Patel v. State of M.P. ((2006) 6 SCC 263], while elaborating
  the ingredients of the offence under Section 376(2)(g) of the
F l.P.C. stated the law as follows:

        "10. To bring the offence of rape within the purview of
        Section 376(2)(g) IPC, read with Explanation 1 to this
        section, it is necessary for the prosecution to prove:

G       (i) that more than one person had acted in concert with the
        common intention to commit rape on the victim;

        (ii) that more that one accused had acted in concert in
        commission of crime of rape with pre-arranged plan, prior
        meeting of mind and with element of participation in
H
••          OM PRAKASH v. STATE OF HARYANA                     1095
                 [SWATANTER KUMAR, J.]

         action. Common intention would be action in concert in pre-    A
         arranged plan or a plan formed suddenly at the time of
         commission of offence which is reflected by the element
         of participation in action or by the proof of the fact of
         inaction when the action would be necessary. The
         prosecution would be required to prove pre-meeting of          B
         minds of the accused persons prior to commission of
         offence of rape by substantial evidence or by
         circumstantial evidence; and

         (iii) that in furtherance of such common intention one or      C
         more persons of the group actually committed offence of
         rape on victim or victims. Prosecution is not required to
         prove actual commission of rape by each and every
         accused forming group.

         11. On proof of common intention of the group of persons       D
         which would be of more than one, to commit the offence
         of rape, actual act of rape by even one individual forming
         group, would fasten the guilt on other members of the
         group, although he or they have not committed rape on the
         victim or victims.                                             E

         12. It is settled law that the common intention or the
         intention of the individual concerned in furtherance of the
         common intention could be proved either from direct
         evidence or by inference from the acts or attending
         circumstances of the case and conduct of the parties.          F
         Direct proof of common intention is seldom available and,
         therefore, such intention can only be inferred from the
         circumstances appearing from the proved facts of tht:"! case
         and the proved circumstances."
                                                                        G
          13. It must be noticed that in the case of Pardeep Kumar
     (supra), the Court stated the above principles but acquitted the
 I   accused. According to the statement of the prosecutrix in that
     case, the accused had reached the premises after commission
     of the offence, though he had consumed liquor with the persons     H
    1096    SUPREME COURT REPORTS                 [2011] 7 S.C.R.
                                                                      •
A who had actually raped the prosecutrix. The Court came to the
  conclusion that there was no common intention or prior concert
  to commit the offence of gang rape as mere presence would
  not be sufficient to find the appellant guilty by taking aid of
  Explanation I. The present case is slightly similar to the case
B of Pardeep Kumar (supra), of course, it is not in any way
  identical on facts. In the case in hand, the prosecutrix had not
  been gang-raped, as alleged by the prosecution, and she had
  travelled all the way, i.e. nearly 15-20 kms on a cycle. Thus, the
  intention to kidnap and commit rape or subject her to sexual
c assault was the intention of Jai Prakash alone. There was no
  prior plan or meeting of minds between the appellant and the
  Jai Prakash to either kidnap or to rape the prosecutrix. As per
  the statement of the prosecutrix, the appellant had provided a
  room to both Jai Prakash and the prosecutrix and remained _
  there to see that she does not go out or that nobody comes in.
0
  The crucial question in this entire sequence of events is whether
  Jai Prakash told the appellant that he had kidnapped the
  prosecutrix or that the prosecutrix was known to him and had
  accompanied him of her own accord. There is no direct
  evidence in this regard. A collective reading of the evidence
E would show that the role of the appellant is limited to wrongfully
  confining the prosecutrix and not rendering help when asked
  for.

       14. However, it would have been an entirely different
F situation if the prosecutrix had stated in her statement that the
  appellant had been told by Jai Prakash about her alleged
  kidnapping and his intention to rape her, during the short
  conversation that they are stated to have had before entering
  the room. It is clear from her statement that she does not even
G claim that she overheard the conversation. Thus, it may not be
  possible for the Court to draw an adverse inference against the
  appellant when the prosecution has not been able to lead any
  definite evidence in that regard.

        15. In the case of Smt. Saroj Kumari v. The State of U.P.
H
•       OM PRAKASH v. STATE OF HARYANA
             [SWATANTER KUMAR, J.]
                                                           1097

[(1973) 3 SCC 669], this Court while explaining the constituents A
of an offence under Section 368 of the IPC clearly held that
when the person in question has been kidnapped, the accused
knew that the said person had been kidnapped and the
 accused having such· knowledge, wrongfully conceals or
 confines the person concerned then the ingredients of·Section B
 368 of the IPC are said to be satisfied. The prosecution
 evidence and particularly the statement of the prosecutrix shows
 that the act of kidnapping with the intention to rape and actual
 commission of rape of the prosecutrix were completed by Jai
 Prakash himself. The appellant had rendered the help of c
 providing a room but there is nothing on the record, including
 the statement of the prosecutrix, to show that she overheard Jai
 Prakash telling the appellant that he had kidnapped her and/or
that the appellant had any knowledge of the fact that she had
been kidnapped. The possibility of the appellant being informed D
by the Jai Prakash that she had come of her own will and had
travelled a long distance of 15-20 km without protest does not'
appear to be unreasonable. As noticed, according to the
prosecutrix, it was under threat but the prosecution was
expected to produce evidence to show that the factum of
 kidnapping as well as intent to commit a rape was known to E
 the appellant either directly or at least by circumstantial
 evidence. As per the evidence of the prosecution, the room
 where the prosecutrix was raped belonged to one Sh. Moti
 Ram, the uncle of the appellant who had died. Except the
 statement of DW1, no other defence had been led by the · F
 appellant to prove that he is innocent or has been falsely
 implicated. Though DW1 had made a vague statement that on
 the date of occurrence, no girl had come to that room, that
 statement cannot be said to be truthful and it does not inspire
confidence.                                                       G

     16. Even in the cases where the statement of prosecutrix
is accepted as truthful, it is expected ofthe prosecution to show
some basic evidence of common intention or concert prior to
commission of ttie offence. In the present case, it is an           H
A
    1098      SUPREME COURT REPORTS                               •
                                                    [2011] 7 S.C.R.


  undisputed fact that Jai Prakash alone at the knife point had
  taken away the prosecutrix across a distance of more than 15
  km and it is only after he reached Guiab Nagar that he met the
  appellant. Except providing a space and cot and helping the
  accused in wrongfully detaining the prosecutrix, no further act
B or common intention is attributable. There is no evidence that
  there was a common concert or common intention or meeting
  of minds prior to commission of the offence between the two
  accused.

       17. For the reasons afore-recorded, we partially accept the
C present appeal. The judgment of the trial court convicting the
  accused under Section 376(2)(g) of the IPC is set aside and
  he is acquitted of the said charge. However, his conviction
  under Section 368 of the IPC and the sentence awarded by the
  High Court is maintained. Therefore, the accused shall undergo
D rigorous imprisonment for five years with fine of Rs. 5000/-, in
  default of payment of fine to undergo rigorous imprisonment for
  four months.

           The appeal is accordingly disposed of.
E
    D.G.                                     Appeal disposed of.