{"id":347124,"date":"2025-05-05T11:00:52","date_gmt":"2025-05-05T05:30:52","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=347124"},"modified":"2025-05-06T12:54:48","modified_gmt":"2025-05-06T07:24:48","slug":"penetrative-act-sufficient-convict-all-gang-furtherance-common-intention-sc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2025\/05\/05\/penetrative-act-sufficient-convict-all-gang-furtherance-common-intention-sc\/","title":{"rendered":"\u2018Penetrative act by one is sufficient to convict all in the gang if there is common intention\u2019; SC upholds conviction in 21-years-old gang rape case"},"content":{"rendered":"
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Supreme Court:<\/span> In an appeal filed against the judgment passed by the Madhya Pradesh High Court, wherein the Court confirmed the conviction and sentence of the convict by the Special Judge for offences punishable under Sections 366<\/a>, 376(2)(g)<\/a> and 342<\/a> of the Penal Code, 1860<\/a> (‘IPC’) and Section 3(2)(v)<\/a> of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989<\/a> (‘1989 Act’), by the division bench of Sanjay Karol and K.V. Viswanathan*<\/span>, JJ. upheld the conviction of the convict found guilty of gang rape, rejecting the argument that he had not personally committed any act of penetration. The Court clarified that Section 376(2)(g)<\/a> of the Penal Code, 1860<\/a> if a penetrative act was carried out by even one person, all others sharing a common intention could also be held liable.<\/p>\n

Thus, while maintaining the conviction of the convict under Sections 366<\/a>, 342<\/a>, and 376(2)(g)<\/a> of the IPC<\/a>, set aside the conviction under Section 3(2)(v)<\/a> of the 1989 Act<\/a>. Further, to bring the sentence in line with that imposed on the servant for the offence under Section 376(2)(g), the Court modified the sentence of life imprisonment imposed on the convict to rigorous imprisonment for 10 years, along with a fine of Rs. 2,000\/- and a default sentence of rigorous imprisonment for one year in case of non-payment of the fine.<\/p>\n

Background<\/h3>\n

The prosecution case originated from a missing report lodged on 24-06-2004. The complainant informed the police that on the previous night, at 10:00 PM, his daughter, the prosecutrix, had gone to see the barat, accompanied by her friend. The complainant stated that the prosecutrix did not return home. Following the registration of the missing report, an investigation was initiated.<\/p>\n

Upon the recovery of the prosecutrix, she stated that when she and her friend were returning from the wedding ceremony, they halted to attend to calls of nature. Afterward, as they were proceeding toward their house, the convict and his servant caught hold of them from behind. According to the prosecutrix, while the convict seized her, his servant was accompanying him. She stated that at the same time, her friend managed to escape. She further deposed that while one of the accused held her, the other gagged her mouth and threatened to kill her if she raised an alarm. The prosecutrix testified that the accused had a two-wheeler and forcefully made her sit on it, taking her to the convict’s house, which was situated in the middle of the fields. She deposed that both the convicts locked her in a room and committed rape with her.<\/p>\n

For the offence punishable under Section 366<\/a> IPC<\/a>, the convict was sentenced to 5 years of rigorous imprisonment with a fine of Rs. 2000\/-, and in default of payment of the fine, was to undergo an additional 6 months of rigorous imprisonment. For the offences punishable under Section 376(2)(g)<\/a> IPC<\/a> and Section 3(2)(v)<\/a> of the 1989 Act<\/a>, the convict was sentenced to life imprisonment with rigorous imprisonment and a fine of Rs. 2000\/-, and in default of the fine, was to undergo an additional 1 year of rigorous imprisonment. For the offence under Section 342<\/a> IPC<\/a>, the convict was sentenced to 6 months of rigorous imprisonment with a fine of Rs. 200\/-, and in default of the fine, was to undergo 2 months of rigorous imprisonment. Aggrieved by the sentence, the convict filed the present appeal.<\/p>\n

The servant was sentenced for the same offences as that of the convict except that there was no conviction and sentence on the servant under the 1989 Act<\/a>. The other difference was that insofar as Section 376(2)(g) was concerned, the servant was sentenced to 10 years rigorous imprisonment with a fine of Rs. 2000\/- and, in default of fine, to undergo rigorous imprisonment for 1 year.<\/p>\n

Analysis and Decision<\/h3>\n

The Court was convinced that, notwithstanding the minor contradictions, the prosecutrix’s evidence inspired confidence. She had clearly testified about the convict abducting her and committing rape on her. She had also clearly deposed about the wrongful confinement. Nothing was elicited in cross-examination that could dilute her testimony. The charges under Sections 366<\/a>, 376(2)(g)<\/a>, and 342<\/a> IPC<\/a> were clearly made out. The Court reiterated that the prosecutrix was not considered an accomplice, and if her evidence inspires confidence, it can be acted upon without the need for corroboration.<\/p>\n

The Court reiterated that a woman or a girl subjected to sexual assault is not an accomplice, but a victim of another person’s lust and it will be improper and undesirable to test her evidence with suspicions.<\/span> Thus, all that the law mandated was that the Court should be alive to and conscious of the fact that it was dealing with the evidence of a person who had an interest in the outcome of the charge levelled against her. If, after considering this aspect, the Court was satisfied that the evidence was trustworthy, there was nothing to prevent the Court from acting on the sole testimony of the prosecutrix.<\/p>\n

The Court highlighted that the fact that in the FIR only rape by the servant was clearly mentioned and the role of the other convict was only to help and the further fact that the consent letter given by the prosecutrix and her father only mentioned about rape by the servant also does not be of any advantage to the convict, for the following reasons:<\/p>\n