HANUMAN PRASAD AND ORS. versus STATE OF RAJASTHAN

Citation: [2008] 16 S.C.R. 258 · Decided: 18-11-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2008] 15 S.C.R..258 
. HANUMAN PRASAD AND ORS. 
v. 
STATE OF RAJASTHAN 
(Criminal Appeal No. 1186 of 2001) 
NOVEMBER 18, 2008 
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.] 
Pimai Code, 1860 -
s. 376(2)(g) - Application of -
Necessary ingredients - Held: 'Common intention' to commit 
rape is necessafY -
On facts, no evidence to show that 
accused had a common intention of committing rape on 
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'victim - Thus, conviction by High Court .uls. 376(2)(g) not 
sustainable and set aside. 
According to the prosecution cas~, accused OS 
raped the prosecutrix, a school going· girl and other 
·accused flirted with her. This continued for severaltimes. 
Accused persons threatened her not to disclose this fact 
to anxone. After some time prosecutrix told her parents. 
FIR was lodged~' The main accused were convicted and 
other accused-appellants were acquitted. However, High 
Court convicted and sentenced the appellants u/s. 
376(2)(g) IPC. Hence, these appeals. 
Allowing the appeals, the Court 
HELD: 1.1. The important expression to attract 
Section 376(2)(g) is 'common intention' to commit rape. 
The essence of the liability in terms of Section 376 (2) is 
the existence of common intention. In animating the 
accused to do the criminal act in furtherance of such 
intention, the principles of Section 34 IPC have clear 
258 
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HANUMAN PRASAD AND ORS. v. STATE OF 
259 
RAJASTHAN 
application. In order to bring in the concept of common ,,,A 
intention it is to be established that there was 
simultaneously consensus of the minds of the persons 
participating in the act to bring about a particular result. 
Common intention is not the same or similar intention. It 
presupposes a prior meeting and pre-arranged plan. In °B 
other words, there must be a prior meeting of minds. It is 
not necessary that pre-consert in the sense of a distinct 
previous plan is necessary to be proved. The common 
intention to bring about a particular result may well 
develop on the spot as between a number of persons ''C 
which has to be gauzed on the facts and circumstances 
of each case. [Para 7] [262-E-H; 263-A] 
1.2. In the instant case, a bare reading of the entire 
evidence of the prosecutrix goes to show that the . D 
appellants were not involved in the act of rape. There is 
also nothing on evidence to show that they shared 
common intention. In the statements recorded in terms 
of ss. 161 and 164 Cr.P.C. also that was the position. No 
evidence was led to show that the appellants had .a 
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common intention of committing rape on the victim. This 
aspect unfortunately has been lost sight of by the High 
Court though the Trial Court has elaborately dealt with 
this aspect. Thus, conviction by High Court cannot stand 
and is set aside. [Paras 4, 8 and 9] [262-8-C; 263-A-C] 
F 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 1186 of 2001. 
From the final Judgment and Order dated 30.4.2001 of the 
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High Court of Judicature of Rajasthan at Jodhpur in S.B . 
.- .--1 
Criminal Appeal No. 326 of 1999. 
WITH 
Crl. A.No. 799 of 2002. 
H 
260 
SUPREME COURT REPORTS 
[2008] 16. S.C.R. 
A 
R.K. Kapoor, Anis Ahmed Khan, Doongar Singh, V.J. 
B 
Francis and Anupam Mishra for the Appellants. 
Naveen Kumar Singh and Aruneshwar Gupta for th_e 
Respondents .. 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT, J. 1. In these appeals, challenge 
is to the judgment ofa learned Single Judge of the Rajasthan 
High Court at Jodhpur. Though the appellantswere acquitted 
C by the trial Court, the High Court in appeal filed by the State of 
Rajasthan directed their conviction for offence punishable under 
Section 376(2)(g) of the Indian Penal Code, 1860 (in short the 
'IPC') and each was sentenced to undergo 10 years rigorous 
imprisonment and fine with default stipulation. In all there were 
b 8 accused persons. Three of them who were convicted by the 
trial Court namely, Dhruvendra Singh, Shivmuni @ Babua and 
Sushi! Kumar did not prefer any appeal before the High Court 
questioning their conviction. However, the Trial Court acquitted 
the present appellants and in appeal filed by the State their 
E acquittal was set aside. 
2. Background facts, as projected by the prosecution, in 
a nutshell, are as follows: 
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On 6.10.1997 at about 4.10 p.m. the prosecutrix (PW-6) 
daughter of Nemchand (PW-4) lodged a report Ex.P/9 before 
Kan Singh, Dy. SP, Raisingh Nagar District Sri Gangan

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