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iv) It is submitted that in such a situation when allegedly rape was committed only by Manoj, the question of presuming that the petitioners also had any common intention to commit gang rape should not have been presumed.

v) It is also submitted that a common intention as visualized in Section 376(2)(g) is intention in contrast to the intention where only one of the accused from the group may commit rape while the other only facilitate the said offence. In such a situation the only offence which could have been made out is of abetting the offence of rape and not of gang rape.

Manoj put his hand on her mouth while Manoj drove the car and then after reaching at the farm house Manoj committed rape on the prosecutrix while Jitender, and Mukesh stood outside the room.

10. It is also stated that from the aforesaid facts and the testimony of the prosecutrix, it is crystal clear that there was a common intention and the prior meeting of a mind which stand established on the record.

The common intention was to commit a rape on the prosectrix. It is further submitted that the common intention can be proved either from the evidence or by inferences from the acts and the attending circumstances of the case and the conduct of the parties. It is further submitted that from the facts and circumstances of the case common intention is reflected by the participation of all the three accused persons in the crime. It is further submitted that even though the petitioners had not actually committed the rape on the prosecutrix but there is sufficient material on the record which shows that the petitioners were members 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 charge framed under Section 376(2)(g) IPC justified.

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:

(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- meeting of mind of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and

12. 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.