ASHOK KUMAR versus STATE OF HARYANA

Citation: [2002] SUPP. 5 S.C.R. 159 · Decided: 17-12-2002 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Judgment (excerpt)

ASHOK KUMAR 
A 
v. 
STATE OF HARYANA 
DECEMBER 17, 2002 
[S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.] 
B 
Penal Code, 1872-Section'J 76 (2)(g) Explanation I-Rape-Conviction 
under section-Allegation that accused along with other committed rape-
Conviction-During pendency of appeal accused died-High Court dismissing C 
appeal of other person-On appeal held in the absence of evidence of concert 
between accused and the other person, conviction by trial court as upheld by 
High Court cannot be sustained-Thus the other person is entitled to acquittal. 
According to the prosecution, PW6 witnessed the accused committing 
rape of his sister. At that moment, appellant came from adjoining room D 
and threatened to shoot PW6. He raised an alarm and several persons 
came on the spot after which appellant ran away. Victim consumed poison 
in order to commit suicide. She told the family members that she did so 
as she was feeling ashamed of the incident. Victim died later on. Accused 
and appellant were charged un~er sections 376 and 506 IPC. Trial Court 
convicted them under section 376(2) (g), but acquitted them under section E 
506. Aggrieved by the order they filed appeals. During pendency of appeals 
accused died. High Court dismissed the appeal filed by appellant. Hence 
the present appeal. 
Respondent contended that appellant had facilitated accused to F 
commit rape on victim and, therefore, it must be inferred that he was in 
concert with him. 
Allowing the appeal, the Court 
HELD: I.I. No case is put forth or established that appellant G 
<;ommitted an offence under section 376 IPC as such, but he is charged 
with an offence arising under section 376(2)(g) IPC by which he is deemed 
to have committed such an offence. In the absence of any evidence of 
concert between accused and appellant, the conviction recorded by Trial 
Court as upheld by High Court cannot be sustained and appellant is 
159 
H 
160 
SUPREME COURT REPORTS [2002) SUPP. 5 S.C.R. 
A acquitted of the offence with which he was charged. 1165-B; CJ 
1.2. In order to establish an offence under section 376(2)(g), read 
with Explanation I !PC thereto, 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 
B guilty irrespective of the fact that she had been raped by one or more of 
them and it is not necessary for the prosecution to adduce evidence of a 
completed act of rape by each of the accused. This provision embodies a 
principle of joint liability and the essence of that liability is the existence 
of common intention, that common intention presupposes prior concert 
C which may be determined from the conduct of offenders revealed during 
the course of action and it could arise and be formed suddenly, but, there 
must be meeting of minds. It is not enough to have the same intention 
independently of each of the offender. In such cases, there must be criminal 
sharing marking out a certain measure of jointness in the commission of 
offence. (164-C, D, E( 
D 
1.3. Facilitation of rape by accused by appellant, if at all, has to be 
inferred from the circumstances. Ap3rt from the fact that he was present 
in his house at about 3.30 p.m. in hot summer month at the crucial time, 
nothing more is established. By that factum alone, the inference that 
appellant being in concert with accused cannot be established. It cannot 
E be presumed that by his mere presence in his house, he was aware of the 
illicit affair going on between accused and the victim, or that he was acting 
in concert with accused. The evidence of prosecution witnesses before the 
Court that they found accused to be in compromising position with the 
victim when appellant walked in with a pistol and threatened to shoot them 
p is not believed by Trial Court. In fact, no pistol was recovered from him. 
He has been acquitted of that charge under section 506 IPC and that part 
of the order has become final since no appeal has been preferred against 
such acquittal. (164-F, G, H; 165-AI 
2. When there is direct evidence of PW6-brother of the deceased, 
G the bald statement attributed to the deceased in an apparent bid to rope 
in appellant in addition to the other accused cannot be given much weight. 
Further the time gap between PW6 noticing the victim being taken inside 
the Baithak and his entry into the Baithak was so short that it is not 
possible to infer that 

Excerpt shown. Read the full judgment & AI analysis in Lexace.