ASHOK KUMARversusSTATE OF HARYANA

                             ASHOK KUMAR                                         A
                                     v.
                          STATE OF HARYANA

                          DECEMBER 17, 2002

     [S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.]                            B


     Penal Code, 1872-Section'J 76 (2)(g) Explanation I-Rape-Conviction
under section-Allegation that accused along with other committed rape-
Conviction-During pendency ofappeal accused died-High Court dismissing           C
appeal of other person-On appeal held in the absence of evidence of concert
between accused and the other person, conviction by trial court as upheld by
High Court cannot be sustained-Thus the other person is entitled to acquittal.

      According to the prosecution, PW6 witnessed the accused committing
rape of his sister. At that moment, appellant came from adjoining room           D
and threatened to shoot PW6. He raised an alarm and several persons
came on the spot after which appellant ran away. Victim consumed poison
in order to commit suicide. She told the family members that she did so
as she was feeling ashamed of the incident. Victim died later on. Accused
and appellant were charged un~er sections 376 and 506 IPC. Trial Court
convicted them under section 376(2) (g), but acquitted them under section        E
506. Aggrieved by the order they filed appeals. During pendency of appeals
accused died. High Court dismissed the appeal filed by appellant. Hence
the present appeal.

     Respondent contended that appellant had facilitated accused to              F
commit rape on victim and, therefore, it must be inferred that he was in
concert with him.

     Allowing the appeal, the Court

      HELD: I.I. No case is put forth or established that appellant              G
<;ommitted an offence under section 376 IPC as such, but he is charged
with an offence arising under section 376(2)(g) IPC by which he is deemed
to have committed such an offence. In the absence of any evidence of
concert between accused and appellant, the conviction recorded by Trial
Court as upheld by High Court cannot be sustained and appellant is

                                     159
                                                                                 H
    160                       SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R.

A acquitted of the offence with which he was charged. 1165-B; CJ
          1.2. In order to establish an offence under section 376(2)(g), read
    with Explanation I !PC thereto, the prosecution must adduce evidence to
    indicate that more than one accused had acted in concert and in such an
    event, if rape had been committed by even one, all the accused will be
B   guilty irrespective of the fact that she had been raped by one or more of
    them and it is not necessary for the prosecution to adduce evidence of a
    completed act of rape by each of the accused. This provision embodies a
    principle of joint liability and the essence of that liability is the existence
    of common intention, that common intention presupposes prior concert
C   which may be determined from the conduct of offenders revealed during
    the course of action and it could arise and be formed suddenly, but, there
    must be meeting of minds. It is not enough to have the same intention
    independently of each of the offender. In such cases, there must be criminal
    sharing marking out a certain measure of jointness in the commission of
    offence. (164-C, D, E(
D
            1.3. Facilitation of rape by accused by appellant, if at all, has to be
    inferred from the circumstances. Ap3rt from the fact that he was present
    in his house at about 3.30 p.m. in hot summer month at the crucial time,
    nothing more is established. By that factum alone, the inference that
    appellant being in concert with accused cannot be established. It cannot
E   be presumed that by his mere presence in his house, he was aware of the
    illicit affair going on between accused and the victim, or that he was acting
    in concert with accused. The evidence of prosecution witnesses before the
    Court that they found accused to be in compromising position with the
    victim when appellant walked in with a pistol and threatened to shoot them
p   is not believed by Trial Court. In fact, no pistol was recovered from him.
    He has been acquitted of that charge under section 506 IPC and that part
    of the order has become final since no appeal has been preferred against
    such acquittal. (164-F, G, H; 165-AI

          2. When there is direct evidence of PW6-brother of the deceased,
G   the bald statement attributed to the deceased in an apparent bid to rope
    in appellant in addition to the other accused cannot be given much weight.
    Further the time gap between PW6 noticing the victim being taken inside
    the Baithak and his entry into the Baithak was so short that it is not
    possible to infer that appellant would have committed rape in the first
H   instance. Soon after PW6 entered the Baithak and witnessed accused and
    ASHOK KUMAR v. STATE OF HARY ANA [S. RAJENDRA BABU, J.]                161

deceased in compromising position, appellant withdrew from there. IP the          A
face of this version in cross-examination, it is difficult to believe that both
of them committed rape. (163-F; H; 164-AJ

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
734 of 2002.
                                                                                  B
     From the Judgment and Order dated I4.2.2002 of the Punjab and
Haryana High Court in Crl. A. No. 49-DB of 1996.

    Sushik Kumar, S.C. Paul, Shiv P. Pandey and Anil Kaushik, for the
Appellant.
                                                                                  c
      Aditya Kumr Chaudhary and Ranbir Yadav, for the Respondent.

      The Judgment of the Court was delivered by

        RAJENDRA BABU, J. On May 9, 1993 at about 3.30 p.m., when
  Rajbir [PW.6) was passing in front of the Baithak of the residence of Ram D
  Karan, father of the appellant, he heard the cries of his sister, Sudesh, aged
  about 15 years and when he went inside the Baithak by scaling over the wall
  he saw Anil Kumar (now deceased) committing rape of his sister, Sudesh and
  she was weeping while lying on the ground. Then came Ashok Kumar, the
  appellant, from the adjoining: room with a pistol in his hand asking the E
  witness Rajbir [PW.6) to run away as ·otherwise he would shoot him. Rajbir
  [PW.6) raised an alarm upon which several persons in the neighbourhood
  and his brother Ranbir [PW.4] and his father, Dhanpat, came to the spot. On
  seeing this, the appellant ran away from the place. Sudesh, sister of Rajbir
  [PW.6], after putting on her salwar went away as she was feeling ashamed.
  She was not found in the house when other members of the family looked F
  for her. When they came back to their houses at about 12 midnight, she was
  vomiting and weeping. On asking her, they came to know that she had
  consumed aluminium phosphide tablets which are used for preservation of
  wheat in order to put an end to her life as the appellant and deceased Anil
  Kumar [I st accused] had committed rape on her and she was feeling ashamed.
  As no other conveyance was available, they took her to the hospital on a G
. bicycle at about 5 A.M. on May I0, 1993. The doctor admitted her in the
  hospital at about 5.30 A.M. and thereafter both the brothers returned to their
  village to make arrangement for money for payment to the hospital. Dr. A.K.
  Suri [PW.2] sent intimation to the police station regarding the admission of
  Sudesh in the hospital, upon which H.C. Mohinder Singh [PW.12] went to H
    162                        SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.

A the hospital and inquired about her fitness to make statement. The doctor
    declared her unfit to make any statement and she expired at about 7.10 A.M.
    on May 10, 1993. Thereafter H.C. Mohinder Singh [PW.12] recorded a
    statement of Rajbir [PW.6] at about 9 A.M. on the basis of which FIR for
    offences under Sections 376, 306 and 506 !PC were recorded at the Police
    Station, Safidon at 9.10 A.M. and after investigation the charge sheet for
B   offences under Sections 376 and 506 !PC was laid before the court against
    the appellant and Anil Kumar. Ranbir and Rajbir [PW.4 and PW.6] were
    charged under Section 306 IPC for abetting suicide of Sudesh, but they were
    acquitted of the charge. This in brief is the prosecution case.

C          The Trial Court convicted each of the accused to undergo rigorous
    imprisonment for 11 years and to pay a fine of Rs. 2,000 under Section
    376(2)(g) !PC and in default of payment of fine to undergo further
    imprisonment of one year. Both the accused filed appeals. During the pendency
    of the appeals, A_nil Kumar died in an accident. The High Court, having
    dismissed the appeal filed by the appellant, this appeal by special leave is
D   preferred.

           The post-mortem report of the body of Sudesh disclosed as under:

            "It was moderately built, moderately nourished body of a female.
            Auxiliary hair were present. Breasts were well developed. Pubic hair
E           were present. There was no external mark of injury seen in perineum,
            thighs, hips, breast or on any other part of body. Hymen was ruptured,
            which was old healed and ruptured and admitted two fingers. No
            fresh injury was present in the vagina. Uterus was ante-verted and
            nulliparous."

F          In the court, evidence was tendered to the effect that two vaginal swabs
    were taken from posterior and lateral fomices and pubic hair were sent to the
    chemical analysis as well as the salwar, under-shirt and the underwear worn
    by the deceased were also sent to the Forensic Science Laboratory, which,
    however, did not indicate anything positive. Dr. V.P. Kakkar [PW.3] opined
G   that the possibility of recent intercourse is totally ruled out. From the condition
    of vagina and hymen, he stated that the deceased was habituated to sexual
    intercourse. He did not find any injury upon the deceased. He opined !hat she
    has died as a result of poisoning. Similarly medico-legal examination of the
    appellant did not find any mark of injury on any part of the body and his
    underwear which was sent to the FSL did not produce anything positive.
H   Apart from stating that he was fit to perform sexual intercourse, no other
         ASHOKKUMAR v. STATEOFHARYANA [S.RAJENDRABABU,J.]                        163
     statement was made before the court.                                                A
           The Trial Court acquitted the accused with reference to the offence
.(
     arising under Section 506 IPC. The finding in this regard is as follows:

              " .......... To my mind the prosecution has failed to prove this charge
             because in his statement Ex. PW 6/A the complainant has stated that         B
             when he entered in the house of Ram Kaman, Ashok accused came
             out from a room with a pistol and directed him (PW-6) to get lost
             from that place failing which he would finish him. This version is
             supported by PW-6 in his on oath statement. Except this evidence, no
             other evidence has come on the record. Therefore from this evidence
             it is clear that the threat uttered by accused Ashok to PW-6 was a          c
             conditional threat and nothing was done by the accused Ashok, even
             the witness did not follow his directions. Thus the conditional threat
             was no threat in the eyes of law and if any law on this point is
             required, then reference may be made to Sita Ram v. State, 1974
             P.L.R. 421. Thus viewed from every angle, I have come to the                D
             conclusion that the prosecution has not been able to prove the second
             charge i.e. charge under Section 506 Indian Penal Code, against the
             accused persons."

           Both the Trial Court and the High Court placed strong reliance upon
     the statements made by Ranbir [PW .4] and Rajbir [PW .6] that Sudesh had            E
     told them, when she came back to the house at midnight after consuming
     poison, that both the accused had raped her.

            When we have the direct evidence of PW.6 the brother of the deceased,
     the bald statement attributed to the deceased in an apparent bid to rope in the
     appellant in addition to the other accused cannot be given much weight. The         F
     evidence of PW.6 [Rajbir] is to the effect that his sister was at a distance of
     about 300 yards having started from the house one or two minutes earlier to
     his departure, that she was picked up from the street and that he noticed her
     being taken inside the Baithak of Ram Karan and as he came near the Baithak,
     he found that the doors were closed. PW.6 then says that he jumped the wall
                                                                                         G
     and went inside the Baithak. Then he noticed the accused Anil Kumar and
J    the deceased in compromising position. The appellant herein came there soon
     after his arrival at the spot and left from there immediately. From this sequence
     of events, it is not possible to draw a reasonable conclusion that the appellant
     had raped the deceased person. The time gap between PW.6 noticing the
     victim being taken inside the Baithak and his entry into the Baithak was so         H
      164                       SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R,

.A short that it is not possible to infer that the appellant would have committed
      rape in the first instance. Soon after PW.6 entered the Baithak and witnessed
      what was happening, the appellant withdrew from there. In the face of this          .,
      version in cross examination, it is difficult to believe that both have committed
      rape. However, we have to examine whether the appellant could be convicted
      with reference to Section 376(2)(g) !PC even if he had not actually raped the
  B   victim.

             Charge against the appellant is under Section 376(2)(g) !PC. In order
      to establish an offence under Section 376(2)(g) IPC, read with Explanation
      I thereto, the prosecution must adduce evidence to indicate that more than
  c   one accused had acted in concert and in such an event, if rape had been
      committed by even one, all the accused will be guilty irrespective of the fact
      that she had been raped by one or more of them and. it is not necessary for
      the prosecution to adduce evidence of a completed act of rape by each one
      of the accused. In other words, this provision embodies a principle of joint
      liability and the essence of that liability is the existence of common intention;
  D   that common intention presupposes prior concert which may be determined
      from the conduct of offenders revealed during the course of action and it
      could arise and be formed suddenly; but, there must be meeting of minds. It
      is not enough to have the same intention independently of each of the offender.
      In such cases, there must be criminal sharing marking out a certain measure
      of jointness in the commission of offence.
  E
          Now what is to be seen is whether there are any circumstances to
    indicate concert between the appellant and Anil Kumar in committing rape
    on Sudesh. Learned Advocate appearing for the respondent, contended that
    the appellant had facilitated Anil Kumar to commit rape on the deceased,
  F Sudesh and, therefore, it must be inferred that he was in concert with him.
    Facilitation of rape by Anil Kumar by the appellant, if at all, has to be
    inferred from the circumstances. Apart from the fact that he was present in
    his house at about 3.30 p·.m. in hot summer month at the crucial time, nothing
    more is established. By that factum alone, the inference that the appellant
    being in concert with Anil Kumar cannot be established. We cannot presume
  G that by his mere presence in his house, he was aware of the illicit affair going
    on between Anil Kumar and the victim, or that lie was acting in concert with          j-
    Anil Kumar. The evidence of Ranbir (PW 4) and Rajbir (PW 6) before the
    Court that they found Anil Kumar to be in compromising position with
    Sudesh when the appellant walked in with a pistol and threatened to shoot
  H them  is not believed by the Trial Court. In fact, no pistol was recovered from
       ASHOK KUMAR v. STATE OF HARYANA [S. RAJENDRA BABU, J.) 165

him. He has been acquitted of that charge under Section 506 IPC and that          A
part of the order has now become final since no appeal has been preferred
against such acquittal.

       No case is put forth or established that the appellant committed an
offence under Section 376 IPC as such, but he is charged with an offence
arising under Section 376(2)(g) IPC by which he is deemed to have committed       B
such an offence. In the absence of any evidence of concert between Anil
Kumar and the appellant, the conviction recorded by the Trial Court as affirmed
by the High Court cannot be sustained.

      In the result, we set aside the order made by the Trial Court as affirmed   C
by the High Court and acquit the accused of the offence with which he was
charged. He shall be set at liberty forthwith. Fine amount, if already paid by
the appellant, shall be refunded to him.

       The appeal is allowed accordingly.

N.J.                                                          Appeal allowed.     D