LexSTATE OF RAJASTHAN versus HEMRAJ & ANR.
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[2009] 6 S.C.R. 1123 .. A STATE OF RAJASTHAN V. HEMRAJ & ANR. (Criminal Appeal No. 847 OF 2009) B . __, APRIL 27, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.] c Penal Code, 1860 - ss.376(2)(g) Explanation 375 and 34 -- Female, whether liable to be convicted for rape -- Held: In view· of definition of rape, holding a woman guilty of committing rape is conceptually inconceivable -- Common intention as occurring in Explanation to s. 376(2) is not D applicable to a woman. The questions for consideration in the present appeal was whether a female was liable to be convicted uls 376(2)(g) IPC. E Dismissing the appeal, the Court HELD :1.1. A bare reading of Section 375 IPC makes the position clear that rape can be committed only by a man. The Section itself provides as to when a man can F be said to have committed rape. Section 376(2) IPC makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub- A section (2)(g) provides that "whoever commits ·gang G rape" shall be punished etc. The Explanation only clarified that when a woman is raped . by one or more in a group of persons acting in furtherance of their common , intention each, such person shall be deemed to have 1123 H 1124 SUPREME COURT REPORTS (2009] 6 S.C.R. A committed gang rape within sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. [Para 7) (1128-8-D] 1.2. By operation of the deeming provision, a person 8 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. "Gommon 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, C 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 D be different and vary in character, but must be actuated by the same common intention, which is different from 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 E, do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit F rape. [Para 7) (1128-E-H; 1129-A) CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 8472 of 2009 From the Judgment & Order dated 9.1.2007 of the High Court of Rajasthan in S.S. Criminal Leave to Appeal No. 99 of G 2006. H V. Madhukar, Jayaendra Savada and Milind Kumar for the · Appellant. lmtiaz Ahmed, Naghma lmtiaz and Equity Lex Associaties STATE OF RAJASTHAN v. HEMRAJ & ANR. 1125 ~ for the Respondent. A The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a B learned Single Judge of the Rajasthan High Court, Jaipur Bench dismissing the application for grant of leave to question #. ·..J correctness of the judgment of learned Additional District. Sessions Judge (Fast track), No.2 Alwar. 3. Background facts in a nutshell are as follows: c Respondents were facing the trial for alleged commission of offence punishable under Section 342 and 376(2) of the Indian Penal Code, 1860 (in short the 'IPC'). PW1 was the victim. The trial court noticed that it was the accused Chandan D ~ ~ who committed rape on her. There was no allegation of rape against the other accused persons namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 (in short the 'Juvenile Act'). E The trial court as noted above held the accused Hemraj guilty of offence punishable under Section 342 IPC and held that the Accused Kamla cannot be convicted in terms of Section 376 (2) IPC. The State filed an appeal questioning F acquittal of the respondent from the accusations relatable to Section 376(2) IPC. The High Court held that so far as the accused Hemraj is concerned his presence at the spot was doubt
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