REPORTABLE

                   IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 421 OF 2007

OM PRAKASH … Appellant

Versus

STATE OF HARYANA      … Respondents

J U D G M E N T

Swatanter Kumar J.

1

The two accused Om 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’) 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 evidence against the accused under  

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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 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  finding  that  all  the  essential  ingredients  

constituting offence for which the accused were charged were  

fully proved and subsequently convicted both the accused of  

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the  said  offences.   After  hearing  them  on  the  quantum  of  

sentence  and  noticing  the  antecedents  and  the  family  

background of the accused, the trial court took a lenient view  

and sentenced Jai Prakash to undergo 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 Rs.500/- and  

in  default  of  payment  of  fine  to  undergo  further  rigorous  

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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 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 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,  

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was upheld by the High Court vide its well reasoned judgment  

dated 9th August,  2005.  Against this judgment of  the High  

Court,  the  appellant  alone  has  filed  the  present  appeal.

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 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  

doubt and consequent acquittal.  It is also contended that the  

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basic ingredients of Section 376 (2)(g) IPC are not satisfied in  

the present case.

In order to examine the merit of these contentions, it will  

be important for us to notice the case of the prosecution in  

brief.

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  house  to  throw  rubbish  but  she  did  not  return.   The  

complainant searched for her but she could not be traced.  On  

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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 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 point and he raped her in the house of the  

appellant  in  his  presence.  Ram  Pal  (PW6),  father  of  the  

prosecutrix lodged the report with the police on 6th January,  

1994.   Thereafter,  as  already noticed,  Jai  Prakash and the  

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appellant were tried by the court of competent jurisdiction and  

convicted.  In terms of the statement of the prosecutrix, Jai  

Prakash,  accused  threatened  to  kill  her  if  she  did  not  

accompany him.  She was taken on his cycle to Gulab 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  

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  against  entry  of  any  other  person  as  well  as  to  

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prevent her from going out.  Jai Prakash threatened to kill the  

prosecutrix with his 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.

Dr. V.K. Sharma (PW8) had stated before the Court that  

he had examined Jai Prakash on 17th January, 1994 and in  

his opinion, he was capable of performing intercourse and this  

fact is proved by his report (Ex.PG).

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  

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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  

statement of these witnesses.  According to her, the appellant  

met Jai Prakash after he had taken her away at a knife point  

to Gulab Nagar and there they had talked for some time and  

then  the  appellant  had  provided  a  cot  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 within that short duration.  She has clearly stated  

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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 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 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  

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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  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  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  

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help but he did not pay any heed.  Om Parkash accused has  

slept in that very room. So that he may guard the entry  of any  

other persons and so may guard my going out….”

This is the precise role, in the words of the prosecutrix,  

which is attributable to the appellant.   Even if  we take the  

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 Gulab 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  had  since  died.   The  appellant  was  stated  to  be  the  

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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 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  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  

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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 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.   

There  is  some  delay  in  lodging  the  FIR  but  that  

delay  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  

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lodged with the police without any delay.  Once a reasonable  

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.

 The  learned  counsel  appearing  for  the  appellant  has  

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 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  

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entirety,  correct  perspective  and  in  light  of  the  attendant  

circumstances brought on record by the prosecution.

The  High  Court  in  its  judgment  has  not  discussed  

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 (2)  Whoever,- (a)  being  a  police  officer  commits rape- (i) within the limits of the police  station  to  which  he  is  appointed; or (ii)  in  the  premises  of  any  station  house  whether  or  not  

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situated in the police station to  which he is appointed; or (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  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'  s  or  children'  s  institution  takes  advantage  of  his  official  position  and  commits rape on any inmate of  

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such jail,  remand home,  place  or institution; or (d) being on the management or  on the staff of a hospital, 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 (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  fine:  Provided that the court may, for  adequate and special reasons to  be mentioned in the judgment,  impose  a  sentence  of  

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imprisonment  of  either  description  for  a  term  of  less  than ten years  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  meaning of this sub- section.

Explanation  2.-  “women's  or  children's institution" means 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.  Explanation  3.-"  hospital"  means  the  precincts  of  the  

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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."  

A plain reading of  Section 376(2)(g)  with Explanation 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  

furtherance  of  their  common  intention  before  the  deeming  

fiction of law can be enforced against the accused.  This Court  

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in the case of Ashok Kumar v.  State of Haryana, (2003) 2 SCC  

-143 had occasion to dwell on Explanation 1 to Section 376(2)

(g), IPC while examining whether the appellant Ashok Kumar  

could  be  convicted  under  the  same  because  at  the  crucial  

time, he happened to be in the house of the co-accused Anil  

Kumar  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 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  

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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.   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  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  in  the  case  of  

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Bhupinder Sharma v. State of Himachal Pradesh [(2003) 8 SCC  

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  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  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.”

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Another  Bench  of  this  Court  in  the  case  of  Pardeep  

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  

I.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:

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(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  action.  Common  intention  would  be  action in concert in pre-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  minds  of  the  accused  persons prior to commission of offence of  

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rape  by  substantial  evidence  or  by  circumstantial evidence; and

(iii) that in furtherance of such common  intention  one  or  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 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.

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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.  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  the  case and the proved circumstances.”

It  must  be  noticed that  in the  case  of  Pardeep Kumar  

(supra),  the Court stated the above principles but acquitted  

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the 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 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  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  

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15-20 kms on a  cycle.   Thus,  the  intention to  kidnap and  

commit rape or subject her to sexual 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.   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  

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evidence in this regard.  A collective reading of the evidence  

would  show  that  the  role  of  the  appellant  is  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 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 claim that she overheard the conversation.  Thus, it may  

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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.

In the  case of  Smt.  Saroj  Kumari   v.  The State  of  U.P.   

[(1973)  3  SCC  669],  this  Court  while  explaining  the  

constituents 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  368  of  the  IPC  are  said  to  be  satisfied.    The  

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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 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  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  

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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 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 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  

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had come to that room, that statement cannot be said to be  

truthful and it does not inspire confidence.

Even in the cases where the statement of prosecutrix is  

accepted as truthful, it is expected of the prosecution to show  

some basic evidence of common intention or concert prior to  

commission  of  the  offence.   In  the  present  case,  it  is  an  

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 Gulab Nagar that he met  

the appellant.  Except providing a space and cot and helping  

the accused in wrongfully detaining the prosecutrix, no further  

act or common intention is attributable.  There is no evidence  

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that  there  was  a  common concert  or  common intention  or  

meeting of minds prior to commission of the offence between  

the two accused.

        For the reasons afore-recorded, we partially accept  

the 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 rigorous imprisonment  for  five  years  with fine  of  `  

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5000/-,  in  default  of  payment  of  fine  to  undergo  rigorous  

imprisonment for four months.

The appeal is accordingly disposed of.

    ...................................J.

[Dr. B.S. Chauhan]

....................................J.                            [Swatanter Kumar]

New Delhi; July 7, 2011

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