Conviction Of A Single Accused For Gang Rape Is Permissible If Other Accused Couldn't Be Apprehended: Delhi High Court

The Delhi High Court has held that a single person can be convicted for the offence of gang rape punishable under Section 376DA IPC (Section 70 BNS), even if the co-offender manages to escape trial.A division bench of Justices Prathiba M. Singh and Rajneesh Kumar Gupta while dealing with an appeal against conviction observed,“One of the arguments of the Appellant is also that as the alleged coaccused Kalu has not been arrested and only the Appellant has been convicted for the alleged offences, therefore, it is not the case of a gang rape. For the offence to be a gang rape, it must be that the Prosecutrix has been sexually assaulted by more than one person. This argument is without any merit, as one offender can be convicted for gang rape, if the other offender managed to escape and could not be apprehended.”The Appellant was convicted under Sections 363 (kidnapping), 366 (kidnapping with intent of illicit intercourse), 376DA (gang rape), 377 (unnatural offences), 34 (common intention) IPC and Section 6 (aggravated penetrative sexual assault) of the POCSO Act and sentenced to undergo rigorous imprisonment for life.As per prosecution, the Appellant kidnapped the Prosecutrix and along with co-accused Kalu, took the Prosecutrix to a jungle and committed gang rape.Prosecutrix identified the Appellant in Test Identification Parade but the co-accused Kalu was not arrested as he had initially absconded and then passed away.The trial court held that the Prosecutrix had clearly identified the Appellant and had stated that he sodomized her along with the co-accused on the date of incident.The Appellant disputed the TIP, stating that his identity had not been duly established, that there were material inconsistencies in the testimony of the Prosecutrix and there was no scientific evidence to link him to the offence.The High Court however,on scrutinizing the evidence, held that the Prosecutrix consistently stated that the Appellant along with the co-accused Kalu took her on a bike to a jungle, where the Appellant committed sexual assault upon her and thereafter, Kalu committed sexual assault on her. “The material facts, as deposed by the Prosecutrix, remained unchallenged and un-controverted in her cross-examination… There are no good and sufficient reasons to discard the evidence of the Prosecutrix.”On the issue of Appellant's identity not being established through TIP, the Court said, “A perusal of the cross-examination of the Prosecutrix reveals that no suggestion was put to the Prosecutrix that the Appellant was shown to her prior to the conduct of the TIP. The identification of the Appellant in the Court by the Prosecutrix and also the identification in the TIP leaves no doubt that it is the Appellant, who has committed the sexual assault upon the Prosecutrix.”Thus, it dismissed the appeal.Appearance: Mr. Kanhaiya Singhal & Mr. Rahul Bhaskar, Advs for Appellant; Mr. Ritesh Kumar Bahri, APP with Ms. Divya Yadav & Mr. Lalit Luthra, Advs. Mr. Zishaan Iskandari & Mr. Madhur Mittal, Advs. for Complainant. Insp. Harish Kumar, P.S. Karawal Nagar for RespondentCase title: Praveen @ Lallu v. State NCT of DelhiCitation: 2025 LiveLaw (Del) 1026Case no.: CRL.A. 826/2024Click here to read order

Conviction Of A Single Accused For Gang Rape Is Permissible If Other Accused Couldn't Be Apprehended: Delhi High Court

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