Section 376 (2), I.P.C.

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-section (2) (g)
provides that "whoever commits 'gang rape' shall be punished , etc. The Explanation I only clarifies 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 committed gang rape within this sub-section (2).
That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The
Explanation only indicates that when one or more persons act in furtherance of their common intention
to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation
of the deeming provision, a person 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.
"Common intention" is dealt with in Section 34, I.P.C. and provides that when a criminal act is done by
several persons in furtherance of the common intention of all, 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 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, I.P.C. that the act must be done in furtherance of the common intention to do
a criminal act. The expression "in furtherance of their common intention" as appearing in the
Explanation I to Section 376 (2) relates to intention to commit rape. A woman cannot be said to have an
intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the
appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376 (2)
(g).

Priya Patel vs. State of M.P. and Ors. (12.07.2006 - SC) : MANU/SC/3038/2006

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of the six following descriptions:--

First. -- Against her will.

Secondly. --Without her consent.

Thirdly. --With her consent, when her consent has been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.

Fourthly. --With her consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes herself to be lawfully
married.

Fifthly. --With her consent, when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which she
gives consent.

Sixthly. --With or without her consent, when she is under sixteen years of age.

Explanation. --Penetration is sufficient to constitute the sexual intercourse necessary to the offence of
rape.

Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age,
is not rape.]

Priya Patel vs. State of M.P. and Ors. (12.07.2006 - SC) : MANU/SC/3038/2006

[34. Acts done by several persons in furtherance of common intention

When a criminal act is done by several persons in furtherance of the common intention of all, each of
such persons is liable for that act in the same manner as if it were done by him alone.]

INDIAN PENAL CODE, 1860 Section 34 - Acts done by several persons in furtherance of common
intention.

Background facts in a nutshell are as follows:

Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after
attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel
(husband of the accused appellant) met her at the railway station and told her that her father has asked
him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she
accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of
rape was going on, his wife, the present appellant reached there. The prosecutrix requested the
appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and
left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-
sheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections
323 and 376 IPC the appellant, as noted above, was charged for commission of offences punishable
under Sections 323 and 376(2)(g) IPC. The revision filed before the High Court questioned legality of the
charge framed so far as the appellant is concerned, relatable to Section 376(2)(g) IPC. It was contended
that a woman cannot be charged for commission of offence of rape. The High Court was of the view that
though a woman cannot commit rape, but if a woman facilitates the act of rape, Explanation-I to Section
376(2) comes into operation and she can be prosecuted for "gang rape".

Priya Patel vs. State of M.P. and Ors. (12.07.2006 - SC) : MANU/SC/3038/2006
NIRBHAYA

On the basis of the aforesaid evidence on record, the prosecution contends that the evidence on record
corroborates the fact that the prosecutrix was forcibly subjected to violent sexual assault by all the
accused persons who were capable of performing sexual intercourse.

Indian Penal Code, 1860 - Section 376 (2) (g) with Explanation I--Gang rape--Conviction and sentence--
Whether sustainable?--Held, "no"--Ingredients of Section 376 (2) (g) to be proved by prosecution--Direct
proof of common intention seldom available--Such intention can only be inferred--Specific acts
attributed to other co-accused persons to show their connivance and pre-concert to facilitate offence in
planned manner--No such act or conduct attributed to portray accused-appellant's role in furtherance of
common intention to commit rape--Prosecutrix categorically stated before Court that appellant had not
defiled her--Prosecutrix changed her version from time to time--Her statement not inspiring confidence
to reach conclusion that appellant was present right from beginning to infer any pre-concert of
appellant with other accused persons to commit rape--Hence, appellant entitled to benefit of doubt--His
conviction set aside.----------------------------------------------------------------------

To bring the offence of rape within the purview of Section 376 (2) (g), I.P.C., read with Explanation 1 to
this Section, it is necessary for the prosecution to prove :

(i)that more than one person had acted in concert with the common intention to commit rape on the
victim ;

(ii)that more than one accused had acted in concert in commission of crime of rape with pre-arranged
plan, prior meeting of mind and with element of participation in action. Common intention would be
action in consort in pre-arranged plan or a plan formed suddenly at the time of commission of offence
which is reflected by element of participation in action or by the proof of the fact of inaction when the
action would be necessary. The prosecution would be required to prove pre-meeting of mind of accused
persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence ;
and

(iii)that in furtherance of such common intention one or more persons of the group actually committed
offence of rape on victim or victims. Prosecution is not required to prove actual commission of rape by
each and every accused forming group.
On proof of common intention of the group of persons which would be of more than one, to commit the
offence of rape, actual act of rape by even one individual forming group, would fasten the guilt on other
members of the group, although he or they have not committed rape on the victim or victims.

It is settled-law that the common intention or the intention of the individual concerned in furtherance of
the common intention could be proved either from direct evidence or by inference from the acts or
attending circumstances of the case and conduct of the parties. Direct proof of common intention is
seldom available and, therefore, such intention can only be inferred from the circumstances appearing
from the proved facts of the case and the proved circumstances.

Pardeep Kumar vs. Union Administration, Chandigarh (18.08.2006 - SC) : MANU/SC/8415/2006

In Ashok Kumar v. State of Haryana MANU/SC/1176/2002 : 2003CriLJ4932 , this Court observed:

8. ...In order to establish an offence under Section 376(2)(g) IPC, read with Explanation I thereto, the
prosecution must adduce evidence to indicate that more than one accused had acted in concert and in
such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the
fact that she had been raped by one or more of them and it is not necessary for the prosecution to
adduce evidence of a completed act of rape by each one of the accused. In other words, this provision
embodies a principle of joint liability and the essence of that liability is the existence of common
intention; that common intention presupposes prior concert which may be determined from the
conduct of offenders revealed during the course of action and it could arise and be formed suddenly,
but, there must be meeting of minds. It is not enough to have the same intention independently of each
of the offenders. In such cases, there must be criminal sharing marking out a certain measure of
jointness in the commission of offence.

Pardeep Kumar vs. Union Administration, Chandigarh (18.08.2006 - SC) : MANU/SC/8415/2006

In a recent decision in Priya Patel v. State of M.P. and Anr. MANU/SC/3038/2006 : 2006CriLJ3627 , this
Court has observed as follows:

8. ...By operation of the deeming provision, a person 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. 'Common intention' is dealt with in Section 34 and provides that when a criminal act is
done by several persons in furtherance of the common intention of all, 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 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 that the act must be done in furtherance of the common
intention to 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....

Pardeep Kumar vs. Union Administration, Chandigarh (18.08.2006 - SC) : MANU/SC/8415/2006

Section 10 of Evidence Act runs inter alia, "Things said or done by conspirator in reference to common
design.--Where there is reasonable ground to believe that two or more persons have conspired together
to commit an offence or an actionable wrong, anything said, done or written by any one of such persons
in reference to their common intention, after the time when such intention was first entertained by any
one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of showing that any such person
was a party to it ".

Mojib Ansari and Ors. vs. State of Jharkhand (13.08.2015 - JHRHC) : MANU/JH/0923/2015