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TMI Blog2006 (8) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court. Against the impugned judgment, accused- Pardeep Kumar has preferred this appeal by special leave. The prosecution case as set out in the First Information Report (FIR) is that the prosecutrix was living in House No. 3359, Sector 19D, Chandigarh with her brother and mother. Accused-Lalit Gupta was after her and also promised to marry her. On 2nd February, 1987 at about 6.30 p.m., the prosecutrix had gone to the market of Sector 19. Accused- Lalit Gupta met her in the market and invited her to the house of his cousin so that the proposal regarding marriage could be discussed with his relations. On this, the prosecutrix agreed to accompany him to Sector 38, Chandigarh. Lalit Gupta hired a three-wheeler scooter (auto-rickshaw) and they proceeded towards Sector 38. In the midway, the auto- rickshaw was got stopped by Lalit Gupta and accused-Ashok Kumar alias Babbu also boarded the auto-rickshaw. When the prosecutrix, Lalit Gupta and Ashok Kumar entered the house, another accused-Inderjit Singh, who was acquitted by the High Court, met them there. The three accused then consumed liquor in the house. When the advances made by the accused were resisted, accused-Inderjit Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been convicted. On the other hand, Ms. Kamini Jaiswal, learned counsel for the State submitted that the accused-appellant, although had not actually committed rape on the prosecutrix, was rightly convicted under Section 376, IPC, as it was amply proved by the prosecution that the appellant was a member of the group which acted in concert to commit rape on the prosecutrix and in furtherance of the common intention, rape was committed. Thus, the submission of the learned counsel for the State is that by virtue of Explanation 1 to Section 376(2)(g), IPC, all members of a group would be liable for the acts committed by other members of that group when the act is committed in furtherance of their common intention, namely, intention to commit rape. In order to appreciate the arguments advanced by the learned counsel appearing on both sides, it would be appropriate for us to extract the relevant provisions of Section 376, IPC, as under: 376. Punishment for rape.- xxx xxx xxx (2) Whoever, - xx xx xx (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. 'Common intention' is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'Common intention' denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression 'in furtherance of their common intention' as appearing in the Explanation to Section 376(2) relates to intention to commit rape. To bring the offence of rape within the purview of Section 376(2)(g), IPC, read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta present in the house, she told accused- Lalit Gupta that she would return to her home. She also told him that he had defrauded her. On this, accused-Ashok dragged her inside the house and at the instance of Inderjit Singh, Pardeep Kumar and Karam Chand came to the house. Accused had also brought one person by name Bitu. Accused-Karam Chand caught hold of her and raped her and, thereafter Ashok caught hold of her and committed rape against her wish. She stated that Pardeep, Lalit and one other person Bitu were taking liquor in the kitchen. If we believe the case of the prosecution that the accused-appellant (Pardeep Kumar) was present at the spot right from the very beginning along with other accused persons, Explanation 1 to Section 376(2) would be attracted as it can be safely inferred that all the accused persons acted in concert with a common intention to commit rape even if all the accused person have not actually committed rape. But if statement of the prosecutrix is considered as a whole with the FIR, it appears that the accused-appellant entered the house after the rape had been committed on the prosecutrix and thereafter he was consuming liquor with Lalit Gupta and one B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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