LexOM PRAKASH versus STATE OF HARYANA
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A B [2011] 7 S.C.R. 1080 OM PRAKASH v. STATE OF HARYANA (Criminal Appeal No. 421 of 2007) JULY 7, 2011 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] Penal Code, 1860: c s. 376(2)(g) - Gang rape - A/legation that accused-J kidnapped prosecutrix at knife point and brought her to the house of the appellant - Accused-J talked secretly with the appellant whereafter appellant provided space and cot to the accused-J - Appellant slept in the same room near the door 0 to guard against the entry of any other person as well as to prevent the prosecutrix from going out - Thereafter accused- J raped prosecutrix - Prosecutrix cried for help but appellant did not come to her rescue - Conviction of accused-J and appellant u/s.376(2)(g) - Challenged by appellant - Held:~ There was no doubt that accused raped the prosecutrix - In E the entire episode, no role was attributed to the appellant - There was no prior plan or meeting of minds between the appellant and accused-J to either kidnap or to rape the prosecutrix - Intention to kidnap and commit rape was, therefore, the intention of accused-J alone - Collective F reading of the evidence showed that the role of the appellant was limited to wrongfully confining the prosecutrix and npt rendering help when asked for - The prosecution did not produce any evidence either directly or at least by circumstantial evidence to show that the factum of kidnappingl G as well as intent to commit a rape was known to the appellan~ - Conviction of appellant u/s.376(2)(g) set aside - However,: his conviction u/s.368 is maintained. s.376(2)(g) - Essential ingredients - Held: Where a H 1080 OM PRAKASH v. STATE OF HARYANA 1081 woman is raped by one or more in a group of persons acting A in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of s.376(2)(g) - Act of gang rape has to be in furtherance of their common intention before the deeming fiction of law can be enforced against the accused - It may B . not be necessary for the prosecution to adduce evidence of a completed act of rape by each one of the accused - The provision embodies a principle of joint liability and the essence of that liability is existence of common intention - Common intention pre-supposes prior concert as there must c be meeting of minds, which may be determined from the conduct of the offenders which is revealed during the course of action. FIR: Rape of young girl - Delay in lodging FIR - Effect on prosecution case - Held: A young girl who underwent the D trauma of rape is likely to be reluctant in describing those events to anybody including her family members - In the instant case, the moment she told her parents, the report was lodged with the police without any delay - Since reasonable explanation was rendered by the prosecution, delay would not E prove fatal to the case of the prosecution. Evidence: Contradictions in the statements of the prosecution witnesses - Held: Every small discrepancy or minor contradiction which may erupt in the statements of a F witness because of lapse of time, keeping in view the educational and other background of the witness, cannot be treated as fatal to the case of the prosecution - The court must examine the statement in its entirety, correct perspective and in light of the attendant circumstances brought on record by G the prosecution. According to the prosecution, on 2th January, .1994, when the prosecutrix aged about 14 years went out of the house to throw rubbish, accused-J caught hold of her and at knife point took her away on a cycle across a H 1082 SUPREME COURT REPORTS [2011) 7 S.C.R. A distance of 15·20 Km. to the house of the appellant at Guiab Nagar. Accused-J talked secretly with the appellant to arrange space and a cot. Thereafter accused-J had intercourse with the prosecutrix twice after threatening her on knife point. The appellant did not come to her s rescue when she cried for help. He slept in the same. room near the door to guard against the entry of any other person as well as to prevent the prosecutrix from going out. The next day accused·J dropped her at the house of her brother-in-law (PW-7). PW-7 came to the c house of the prosecutrix the next day and informed PW- 6, the father of the prosecutrix that on previous day, accused-J had taken the prosecutrix and in the morning dropped her back at his house. PW-6 br
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