The Bombay High Court dismissed an appeal filed by an accused in a gangrape case of a 17-year-old girl and held that under Section 376 (2) (g) of the Indian Penal Code, if it is proved that more than one accused had acted in concert with a common intention, then if rape had been committed by even one, all the accused will be held guilty.
Justice AS Gadkari passed the judgment while hearing the appeal filed by one Ashpak Lalmohammad, one of the accused in the case, who was sentenced to 10 years by Additional Sessions Judge, Kalyan, on January 6, 2014.
According to the victim, she got off at Kalyan Station from Pune train at 2:30 am on June 21, 2011. Her boyfriend Devendra Kadam was there to receive her. Thereafter, the victim and her boyfriend walked till the end of platform number 1 and sat at the backside of the compound wall.
Then the three accused approached them and questioned their presence in that location at such a time. Accused No. 1 Anilkumar Pathak then slapped her boyfriend and threatened him with a blade. The victim and her boyfriend tried to run away but the appellant-accused managed to chase away Devendra and accused number 1 caught hold of the victim. Thereafter, Anilkumar Pathak and the appellant raped the victim and accused No. 2 Jakir Khan also expressed his desire to commit sexual intercourse with the victim but she threatened him of lodging complaint with the police and therefore he left the said place.
Submissions and Final Judgment
Advocate Rajesh Dharap was appointed by the court as the amicus curiae to espouse the case of the appellant. He submitted that although the victim had identified the appellant in the identification parade, the common intention in committing an offence under Section 376(2)(g) cannot be inferred from the evidence on record.
He submitted that it is accused No.1 Anilkumar Pathak against whom there is sufficient evidence, including medical evidence, to connect him with the present crime, but as far the appellant was concerned, sufficient medical evidence was lacking.
The Additional Public Prosecutor vehemently opposed the appeal and sought a dismissal.
On the argument that there was no common intention at the behest of the appellant to commit the said crime, the court said:
“It is the settled position of law that, in order to establish an offence under Section 376(2)(g) read with Explanation I of the Indian Penal Code, 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 guilty irrespective of the fact that prosecutrix (victim) had been raped by one or more of them and it is not necessary for the prosecution to adduce evidence of completed act of rape by each one of the accused. That, in other words, this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention.”
Thus, relying on the evidence on record and the victim’s testimony, the court held that the offence against appellant under Section 376 (2)(g) of IPC had been proved beyond reasonable doubt by the prosecution and so the appeal was dismissed.