The Allahabad High Court on Wednesday upheld the conviction of 2 men in a 1984 Gang-rape case, holding that one who stands guard to facilitate rape shares the common intention behind the offence and can be convicted of rape with the aid of Section 34 IPC, even if he did not himself commit the act of penetration.

A bench of Justice Santosh Rai thus dismissed a criminal appeal filed against the 1985 trial court judgment that convicted the surviving appellants under Section 376 read with Section 34 of the IPC.

The Court agreed with the trial court's finding that while the principal accused committed rape, appellant-Subhash Singh (accused no. 1) caught hold of one victim and pressed her mouth and hands to facilitate the offence.

It further upheld the finding that appellant-Sher Singh (accused no. 2) assisted in overpowering the other victim and thereafter stood guard to warn the other accused of any danger, thereby enabling the commission of the rape.

Case in brief

As per the prosecution's case, on March 14, 1984, two women had gone to collect dry leaves in a village grove, where they were surrounded by 5 accused persons who overpowered them and threw them into a pit.

Thereafter, 2 accused committed rape, while the remaining accused (including the 2 surviving appellants before the HC) restrained the victims and kept watch until they fled after hearing the victims' cries and seeing a relative approach.

During the pendency of the appeal, one of the three appellants, Shanti, died and the appeal stood abated qua him. Consequently, the appeal survived only in respect of Appellants-Subhash Singh and Sher Singh.

Among other things, the amicus appointed to defend the accused-appellants argued that no specific overt act constituting rape had been attributed to the appellants, who were, at best, alleged to have facilitated the commission of the offence by the principal accused.

It was specifically contended that no independent role had been assigned to the appellant-Sher Singh, who was merely alleged to be "standing guard", which, according to the amicus, could not by itself sustain a conviction with the aid of Section 34 IPC.

High Court's observations

Rejecting the contention regarding the role of Appellant-Sher Singh, the High Court extensively explained the scope of constructive liability under Section 34 IPC.

The Court observed that Section 34 embodies the principle of joint or constructive liability and is "not a substantive offence but a rule of evidence and interpretation".

It said that once common intention and participation are proved, it is not necessary to determine the precise role played by each accused in causing the final result.

The Court further observed that participation "may be active or even passive, provided it is intended to facilitate or advance the common design".

It also noted that common intention may develop on the spot and must be inferred from the accused's conduct, the nature of the assault, their behavior before, during, and after the incident, and the surrounding circumstances.

At the same time, the Court clarified that mere presence at the place of occurrence, without sharing the common intention or participating in the commission of the offence, is not sufficient to invoke Section 34 IPC.

Against this backdrop, the Court found that the evidence established that the appellants actively facilitated the rapes by restraining the victims and enabling the principal offenders to commit the crime.

Examining the roles played by the appellants, Justice Rai observed:

"Such conduct is not that of a passive bystander but reflects a shared, pre-arranged design to overpower the two girls and facilitate their ravishment, squarely attracting Section 34 IPC".

Rejecting the argument that Sher Singh could not be held liable because he did not commit penetration himself, the Court observed:

"One who keeps watch to enable his companions to commit an offence is as much a participant in the common intention as the principal offender, on the time-tested principle that 'they also serve who only stand and wait'."

The Court further reiterated that it is not necessary for every accused to commit the act of penetration where common intention is established, provided the evidence shows participation in furtherance of the common design.

The Bench also relied on the Supreme Court's 2025 decision in Raju @ Umakant v. State of Madhya Pradesh, which reiterated that in a gang rape case, if rape is committed by even one accused acting in furtherance of the common intention, every participant becomes liable irrespective of whether he himself committed penetration.

The High Court also rejected the amicus' argument based on the medical evidence that one victim's hymen was found intact.

Referring to settled law, it held that penetration, however slight, is sufficient to constitute the sexual intercourse necessary for the offence of rape, and rupture of the hymen is not a sine qua non for proving the offense.

Accordingly, finding no infirmity in the trial court's appreciation of the evidence, the High Court affirmed the conviction of the surviving appellants and directed them to surrender within 2 weeks to serve the remainder of their sentences.

The Court, however, observed that the trial court had committed a legal error by awarding a sentence below the statutory minimum without recording adequate and special reasons, and by not imposing the mandatory fine prescribed by law.

However, it held that it could not enhance the sentence in an appeal filed only by the convicted accused because neither the State nor the victims had sought enhancement.

Case Title - Subhash Singh and others vs State 2026 LiveLaw (AB) 490

Case Citation: 2026 LiveLaw (AB) 490

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