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It was submitted before us by Mr. K.T.S. Tulsi, learned senior counsel for the appellant that the High Court committed an error in convicting the accused-appellant under Section 376, IPC when the statement of the prosecutrix before the court completely exonerated him from the commission of offence of rape by deposing that only two accused persons, namely, Karam Chand and Ashok Kumar, defiled her against her wish and consent; and that she had further stated that the other accused could not have sexual intercourse with her because getting a chance she opened the bolt of the room and ran away from the house. It was submitted that on the face of the above statements of the prosecutrix, the accused-appellant Pardeep Kumar could not have been convicted. On the other hand, Ms. Kamini Jaiswal, learned counsel for the State submitted that the accused-appellant, although had not actually committed rape on the prosecutrix, was rightly convicted under Section 376, IPC, as it was amply proved by the prosecution that the appellant was a member of the group which acted in concert to commit rape on the prosecutrix and in furtherance of the common intention, rape was committed. Thus, the submission of the learned counsel for the State is that by virtue of Explanation 1 to Section 376(2)(g), IPC, all members of a group would be liable for the acts committed by other members of that group when the act is committed in furtherance of their common intention, namely, intention to commit rape.

In a recent decision in Priya Patel v. State of M.P. and Anr., JT 2006(6) SC 303, this Court has observed as follows:

"8. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. 'Common intention' is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. 'Common intention' denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression 'in furtherance of their common intention' as appearing in the Explanation to Section 376(2) relates to intention to commit rape. "

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:-

(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 consort in pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by 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-

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. In the light of the principles enumerated in the above- mentioned cases, we have to analyse the factual matrix of the present case with regard to the accused-appellant's conduct and role played by him in the commission of offence. The prosecutrix while lodging the FIR had stated that the accused- appellant reached the spot after the rape had been committed by Lalit Gupta and Ashok Kumar, but in her statement before the court she deposed that on reaching House No. 2451, Sector 38C, Chandigarh, when she did not find parents of accused-Lalit Gupta present in the house, she told accused- Lalit Gupta that she would return to her home. She also told him that he had defrauded her. On this, accused-Ashok dragged her inside the house and at the instance of Inderjit Singh, Pardeep Kumar and Karam Chand came to the house. Accused had also brought one person by name Bitu. Accused-Karam Chand caught hold of her and raped her and, thereafter Ashok caught hold of her and committed rape against her wish. She stated that Pardeep, Lalit and one other person Bitu were taking liquor in the kitchen. If we believe the case of the prosecution that the accused-appellant (Pardeep Kumar) was present at the spot right from the very beginning along with other accused persons, Explanation 1 to Section 376(2) would be attracted as it can be safely inferred that all the accused persons acted in concert with a common intention to commit rape even if all the accused person have not actually committed rape. But if statement of the prosecutrix is considered as a whole with the FIR, it appears that the accused-appellant entered the house after the rape had been committed on the prosecutrix and thereafter he was consuming liquor with Lalit Gupta and one Bitu, then his mere presence would not be sufficient to find him guilty taking aid of Explanation 1. Although there has been some probability of the accused-appellant's presence at the place of the commission of offence as he was apprehended from a place nearby the spot of occurrence with the other accused persons, namely, Lalit Gupta and Karam Chand, but mere presence at such place is insufficient to show that there was a prior concert or meeting of mind or plan formed suddenly at the time of commission of offence by the accused-appellant with the other accused persons for the commission of rape on the prosecutrix. The prosecutrix in her earlier version had mentioned that the accused-appellant arrived late at the place of incident and thereafter he was consuming liquor with the other accused persons in a room. Moreover, where specific acts had been attributed to the other accused persons to show their connivance and pre-concert to facilitate the offence in pre-planned manner, no such act or conduct has been attributed to portray the accused-appellant's role in furtherance of the common intention to commit rape. The prosecutrix in her statement before the court had categorically stated that the accused-appellant had not defiled her and nothing specific was mentioned about his conduct or role to show that he shared the common intention to commit rape. The prosecution did not produce any medical evidence to show that he consumed liquor when accused-appellant was available for such test as he was alleged to have been arrested immediately after the incident at the place of occurrence. The prosecutrix had changed her version from time to time. She began with alleging commission of the offence of rape by all the accused who faced trial, whereas in her deposition before the court she stated that only Karam Chand and Ashok Kumar had committed rape on her. The statement of the prosecutrix does not inspire confidence to reach to the conclusion that the accused-appellant was present at the place of incident right from the very beginning to infer any pre- concert of the appellant with other accused persons to commit rape. In these circumstances, we feel that the accused- appellant is entitled to the benefit of doubt. Hence, in the light of above discussion, we set aside the order of the Session Court as also that of the High Court convicting the accused-appellant under Section 376, IPC. The appeal is, accordingly, allowed. The accused-appellant shall be set at liberty forthwith if not required in any other case.