Commission Of Sexual Act By One Accused Is Sufficient To Rope In Remaining Accused In Gang Rape Offence If There’s Common Intention: Bombay HC

The Bombay High Court observed that the commission of sexual act by one of the accused is sufficient to rope in the remaining accused in the offence of gang rape if there is material to show that they shared a common intention.

The Nagpur Bench observed thus in a batch of three appeals filed by four accused persons against the judgment of the Additional Sessions Judge by which they were convicted for the offence of gang rape.

A Single Bench of Justice G.A. Sanap held, “The commission of actual sexual act by one of the accused is sufficient to rope in the remaining accused in the offence of gang rape, provided there is material to show that they shared a common intention. In my view, the act of Kunal and Ashok facilitated the commission of offence of rape by accused Shubham and Sandip. It has come on record that Akash had motorbike with him. If he was not overpowered, then he would have moved from the spot and tried to secure the help of someone or by these accused from the village.”

The Bench referred to the judgment in the case of Om Prakash v. State of Haryana (2011) 14 SCC 309, in which the Apex Court held that before deeming fiction is invoked, there must be sufficient evidence to establish a common intention, which presupposes prior concert.

Advocates Y.B. Mandape and A.C. Jaltare represented the appellants while Additional Public Prosecutor (APP) S.V. Kolhe represented the respondents.

Brief Facts -

An FIR was registered in 2015 and as per the prosecution case, the victim and her male friend met at a temple. Thereafter, they sat under a tree and during that time, three boys came there and questioned them as to what they were doing there. Those three boys told them that they are from Forest Department and demanded Rs. 10,000/- from them. The victim and her friend expressed their inability to pay the money as a result of which the boys snatched their mobile phones and made a phone call from the victim’s mobile to another person. Resultantly, the fourth boy/accused came on the spot. The accused persons gave thrashings to them and the victim’s friend handed over Rs. 2,000/- to them due to fear. At that time, the victim wanted to attend nature’s call and hence, she went behind a tree. As per the prosecution, the two boys followed her and the remaining two boys caught hold and overpowered her friend. The two boys who followed the victim, threatened to kill her if she resisted for the sexual intercourse.

The victim, with folded hands requested the accused not to outrage her modesty, however, to no avail. The two accused, one after another, allegedly committed forcible sexual intercourse with her by removing her legging and underwear. When this was happening, one forest guard was seen coming to them and after seeing him, all four accused fled from the spot. The victim and her friend narrated the incident to him and then they searched for the accused but could not find them. Hence, a report was lodged at the Police Station and the FIR was registered. The Sessions Court on consideration of the evidence, found the accused persons guilty and convicted them for the offences under Sections 376-D, 394, 201 read with Section 34 of the Indian Penal Code (IPC). They were sentenced to rigorous imprisonment of 20 years along with a fine of Rs. 2,000/-. Being aggrieved by their conviction, the appellants/accused were before the High Court.

The High Court in view of the facts and circumstances of the case noted, “PW3 Akash has stated that the victim was crying for help. In their presence, one of the accused, who had taken the victim behind the tree, said that he does not want money, he wants to commit intercourse with the victim. In my view, this is sufficient to attribute the knowledge and intention to accused Kunal and Ashok. They could have been saved from the tentacles of the law, provided they had not overpowered Akash. If Akash was not overpowered by them, then he would have tried to save the victim. He would have raised hue and cry. He could have prevented the accused from committing this ghastly act with the victim.”

The Court said that there is no substance in the contention that on the basis of the evidence on record, accused nos.1 and 4 could not be roped in and convicted for the offence of gang rape.

“… I am fully satisfied that the evidence is sufficient to prove the charge against all the accused. In view of above, I conclude that there is no substance in the appeals”, it added.

Accordingly, the Court dismissed the criminal appeals.

Cause Title- Sandip v. State of Maharashtra (Neutral Citation: 2024:BHC-NAG:8050)

Click here to read/download the Judgment