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Showing contexts for: common intention rape in Harpal Son Of Om Prakash Yadav And Ram ... vs State Of U.P. on 8 June, 2007Matching Fragments
23. In the instant case, the prosecutrix made positive statement that she was raped by the accused persons and the accused could not rebutt the same and therefore the presumption would arise that she did not consent.
24. Learned Amicus curiae has further contended that the act as alleged cannot be treated to be gang rape as according co the statement of the prosecutrix when she was raped by one accused the others remained outside. But according to the learned Counsel for the state, accused were members of a group and had common intention for committing rape and in furtherance of their common intention they committed rape one after another on the prosecutrix.
28. In the case of Priya Patel v. State of M.P. , it has been held by Hon'ble Apex Court that 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 the same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC is 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 the intention to commit rape.
29. In the case of Pradeep Kumar v. Union Administration Chandigarh (2007) 1SCC (Cri) 41 it has been held by Hon'ble Apex Court that in order to bring the offence of rape within the purview of Section 376(2)(g) IPC read with Explanation-I to this section, it is necessary for the prosecution to prove:
(i) that more than one persons had acted in concert with the common intention to commit rape on the victim;
(ii) that more than or one accused had acted in concert in commission of crime of rape with pre-arranged plan, priori meeting of mind and with element of participation in action. Common intention would be action in concert it pre-arranged plan or a plan formed suddenly at the time of commission of offence which is reflected by the 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 minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence, and:
(iii) that in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by each and every accused forming group (11) On proof of common intention of the group of persons which would be of more than one, to commit the offence of rape, actual act of rape by even one individual forming group, would Would fasten the guilt on other members of the group, although he or they have not committed rape on the victim or victims.