JUDGMENT 1. Being aggrieved of the judgment dated 31st March, 2006 passed by the learned Special Judge, Women Atrocities & Dowry Cases, Kota in Sessions Case No. 54/2005, the accused appellant has preferred-this appeal under section 374 Cr.P.C.The learned trial court had convicted the accused appellant for the offence under section 376(2) (g) IPC and sentenced him for imprisonment for life with a fine of Rs. 2,000/-, In default of payment of which to further undergo six months simple imprisonment. 2. It is to be noted that the accused appellant has remained in custody for about six years by now and the turn of hearing of this appeal would have come little later in the normal course because the cases of accused who have already undergone period of custody more than the appellant are awaiting hearing ahead of the present appeal. But, after rejection of the application for suspension of sentence of the accused appellant by this court, he had preferred Special Leave to Appeal (Criminal) No. 8597/2009 before the Hon'ble Supreme Court. While dismissing the said SLP, the Hon'ble Supreme court observed that a request be made to the High Court to hear and dispose of the criminal appeal as expeditiously as possible. In consequence thereof, an order was passed by this court on 26th February, 2010 directing the registry to list the matter In the Category of hearing. Learned counsel for the accused appellant had- made a request for hearing of the appeal and, therefore, today it has been finally heard by us on priority In compliance of the order passed by the Hon'ble Apex Court. 3. The prosecution case was initiated on the report (Ex.P-16) lodged by Harjilal, Sub-Inspector at police station Vigyan Nagar, Kota on 23rd April, 2005. It was averred in the report that on the day of lodging of the report, the informant Harjilal was on mobile duty along with other police officials. At about 2.00 p.m. he received a wireless message from the police officers to check the vacant houses of Bombay Avas Yojana, Subhash Nagar, Kota. Thereafter, the informant started from Bhamashah Mandi and went to Bombay Avas Yojana Subhash Nagar for checking the vacant houses. On reaching the said scheme, he found some people gathering near the hand-pump and a girl was crying. Thereafter, the informant started from Bhamashah Mandi and went to Bombay Avas Yojana Subhash Nagar for checking the vacant houses. On reaching the said scheme, he found some people gathering near the hand-pump and a girl was crying. On asking of the police, the girl disclosed her name as Rukmani daughter of Shambhu Dayal and on enquiring about the reason for crying, she narrated that at about 12.30 in the noon, she had come from her house along with Rameshwar Dayal, cousin brother who is the son of her Bhua (fathers sister). Further, she stated that Rameshwar Dayal had brought her from residence on the pretext that his mother and Bhua of the prosecutrix had called. It is also stated that near Mahaveer Nagar, Rameshwar Dayal gave her a glass of juice.Thereafter, instead of going to the residence of Bhua, she was taken to a vacant house in Bombay Avas Yojana, Subhash Nagar. Further, it is averred in the report that the prosecutrix Rukmani was taken into one of the rooms of a house and Rameshwar Dayal forcefully committed rape on her. She raised hue and cry and tried to resist the act of Rameshwar Dayal. After some time three boys came and by pushing aside Rameshwar Dayal, they committed the offence of rape on her, one by one. She had also given the names of two boys as Prince and Dilip. The name of the third boy was Surendra who was standing on the door of the vacant house for the purpose of keeping watch. 4. On having found that a serious offence under section 376 IPC has been committed, the police immediately tried to search out the accused persons. Rameshwar Dayal was found standing in the public which had gathered at that place and he was taken along by the police. Thereafter, the two boys, namely Prince and Surendra out of the three, who had gone away from the housing scheme, were found by the police at a little distance and they were taken to the police station along with the prosecutrix and Rameshwar Dayal. The police had also recovered the motor cycle No. RJ-20-14M-4227 on which Rameshwar Dayal had brought the prosecutrix. One other motor cycle was also seized by the police from the place of incident. 5. The police had also recovered the motor cycle No. RJ-20-14M-4227 on which Rameshwar Dayal had brought the prosecutrix. One other motor cycle was also seized by the police from the place of incident. 5. On the aforesaid report, a regular FIR (181/2005) was registered at police station Vigyan Nagar, Kota for the offence under section 376(2)(g) IPC. Thereafter, the investigation commenced and the police visited the place of incident and collected evidence in respect of commission of the crime. The accused persons were then arrested and statement of the prosecution witnesses were recorded under section 161 Cr.PC. The police had also got the statement of the prosecutrix recorded under section 164 Cr.PC. by the Magistrate concerned. On conclusion of the investigation, the police filed challan on 19th July, 2005 against Rameshwar Dayal, Prince and Dilip. Accused Surendra being juvenile, was sent before the court of learned Additional Chief Judicial Magistrate No.1, Kota. 6. The case was then committed to the court of sessions which was later on transferred to the court of Special Judge, Women Atrocities & Dowry Cases, Kota for holding the trial. The trial commenced by framing of charge against the accused persons for the offence under section 376(2)(g) IPC. The accused persons denied the charges and claimed for trial. The prosecution had, in support of its case, produced 12 witnesses and also filed the documents collected during the course of investigation which were duly exhibited by the learned trial court. Later on, the statements of the accused persons were recorded under section 313 Cr.P.C. They had denied the averments made by the prosecutrix as well as the police officials and the prosecution witnesses. The accused had further stated that they have been falsely roped-in in the present case and taken in custody while they were going on the road. The accused persons did not produce any evidence in their defence. After conclusion of the trial and hearing the parties, the learned trial court vide its impugned judgment dated 31st March, 2006 acquitted Rameshwar Dayal and Dilip of the charge levelled against them. The accused Price was convicted for the offence under section 376(2)(g) IPC. Hence, the present appeal has come before us today for final hearing. 7. After conclusion of the trial and hearing the parties, the learned trial court vide its impugned judgment dated 31st March, 2006 acquitted Rameshwar Dayal and Dilip of the charge levelled against them. The accused Price was convicted for the offence under section 376(2)(g) IPC. Hence, the present appeal has come before us today for final hearing. 7. Learned counsel for the accused appellant has vehemently argued that the impugned judgment passed by the learned trial court is grossly illegal and suffers from infirmity as it is not based on evidence on record. Therefore, the learned counsel for the appellant has submitted that the impugned judgment dated 31st March, 2006 deserves to be quashed and set aside. Further, it has been submitted that the prosecution had failed to prove its case beyond reasonable doubt against the accused appellant and as such he ought to have been acquitted by the learned trial court. It has also been submitted by the counsel for the accused appellant that initially the case of the prosecution as given out in the FIR as well as in the statement of the prosecution witnesses recorded under section 161 Cr.RC. and that of the prosecutrix under section 164 Cr.PC. has been given a go-bye and a new version has been brought out during the course of trial. He has also submitted that taking into consideration the over all facts and circumstances of the case and the material on record, it is clearly revealed that the main accused in the case was Rameshwar Dayal who had brought the prosecutrix from her residence on the pretext that she had been called by her Bhua. Thereafter, he had taken the prosecutrix to the vacant house of Bombay Avas Yojana, Subhash Nagar and committed sexual intercourse forcefully and against her will. The allegation against other accused persons for having committed the offence of rape is not correct. Thereafter, he had taken the prosecutrix to the vacant house of Bombay Avas Yojana, Subhash Nagar and committed sexual intercourse forcefully and against her will. The allegation against other accused persons for having committed the offence of rape is not correct. As a matter of fact, when Rameshwar Dayal was caught by other boys for committing the offence, they had also been impleaded in the present case on account of a totally different story given by the prosecutrix at a subsequent point of time.However, learned counsel for the accused appellant has, in the alternative, submitted that taking into consideration the case of the prosecution as it is, no offence under section 376(2)(g) IPC is made out particularly when other accused persons have been acquitted by the learned trial court itself. He has submitted that as against the present accused appellant, the offence under section 376 IPC is, at the most, made out. Therefore, he has submitted that the sentence awarded to the accused appellant may be accordingly modified and the accused having remained in jail for over 6 years, may be sentenced for the period already undergone. 8. Learned public prosecutor, on the other hand, has supported the judgment passed by the learned trial court and submitted that the conviction and sentence awarded to the accused appellant is based on material on record. Further, he has submitted that the prosecution has succeeded in proving its case beyond reasonable doubt only against the accused appellant Prince and that is why learned trial court has acquitted the remaining two accused persons, namely; Rameshwar Dayal and Dilip. He has submitted that taking into consideration the statement of the prosecutrix and other evidence on record, the learned trial court has rightly arrived to a finding that it was the accused appellant alone who had committed the offence of rape. 9. After considering the evidence on record, it is revealed that one Rukmani (prosecutrix) had come from her house at about 12.30 p.m. along with the accused Rameshwar Dayal who was her cousin brother. He had brought the prosecutrix from her residence on the pretext that his mother (also her bhua) was calling her. When both of them reached Mahaveer Nagar, the accused Rameshwar Dayal gave a glass of juice to the prosecutrix and thereafter he took her to a vacant house in Bombay Avas Yojna at Subhash Nagar, Kota. He had brought the prosecutrix from her residence on the pretext that his mother (also her bhua) was calling her. When both of them reached Mahaveer Nagar, the accused Rameshwar Dayal gave a glass of juice to the prosecutrix and thereafter he took her to a vacant house in Bombay Avas Yojna at Subhash Nagar, Kota. After taking the prosecutrix to one of the rooms, the accused Rameshwar Dayal had sexual intercourse with Rukmani without her consent and against her will. On raising hue and cry by the prosecutrix, three persons had come and by pushing aside Rameshwar Dayal, they also committed rape on Rukmani. They were said to be Prince (the appellant), Dilip and Surendra. It is the case of the prosecution that Surendra was standing on the door of the room.On conclusion of trial, the learned court below had held that the prosecution has failed to prove the case against Rameshwar Dayal and Dilip and as such they were acquitted. The accused Surendra being a juvenile, was sent to the Juvenile Court for trial. However, the appellant Prince was convicted for the offence of gang rape. 10. The prosecution case, primarily, was that the accused Rameshwar Dayal had brought the prosecutrix at the place of incident and committed the offence of rape and it was thereafter that other accused persons arrived at the scene of occurrence and followed to commit the offence. But ultimately the learned trial court held that Rameshwar Dayal had not committed the offence alleged. Similarly, in the case of accused Dilip, the offence alleged was not found to be proved and, therefore, he was also acquitted. The present appellant alone was convicted by the learned trial court and that too for the offence of gang rape under section 376(2)(g) IPC. 11. The question which comes up for consideration of this court is as to whether in the aforesaid circumstances, the conviction of the appellant Prince under section 376(2)(g) IPC i.e. for committing gang rape, was proper or not? 12. Before proceeding further, it would be appropriate to extract the relevant provisions of Section 376 IPC, as under: 376. Punishment for rape- (1).... (2) Whoever, -..... (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided.... Punishment for rape- (1).... (2) Whoever, -..... (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided.... Explanation I. - Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. In other words, the aforesaid 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 joint-ness in the commission of offence. 13. Common 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, 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 the 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 do a criminal act. 14. The expression, in furtherance of their common intention as appearing in the Explanation to Section 376(2) IPC relates to the intention to commit rape. 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 do a criminal act. 14. The expression, in furtherance of their common intention as appearing in the Explanation to Section 376(2) IPC relates to the intention to commit rape. Therefore, the offence of rape comes within the purview of Section 376(2)(g)IPC, read with Explanation 1 appended to it if; (i) more than one person had acted in concert with the common intention to commit rape on the victim; (ii) the 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. The prosecution is required to prove pre-meeting of minds of the accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence. (iii) The prosecution is not required to prove actual commission of rape by each and every accused forming group. 15. Keeping in view the aforesaid principles of law to bring the offence of rape within the purview of Section 376(2)(g) IPC, it would be seen that in the instant case, the accused Rameshwar Dayal had brought the prosecutrix with the intention for committing rape and none of the accused persons had been with him so as to say that they had formed a group for committing gang rape. Lateron, the accused Prince, Dilip and Surendra reached the place of incident. So far as accused Surendra is concerned, he is said to have only stood at the door of the room. As per the prosecution case, the accused Prince and Dilip had also committed rape on the victim. But after recording of evidence and at the end of the trial, it has been held by the learned court below that the offence of rape had not been proved against the accused Rameshwar Dayal and Dilip. The offence alleged is said to have been committed only by the accused Prince.Taking into consideration the facts and circumstances of the case in its totality and the finding arrived at by the learned court after recording the evidence produced by the prosecution, it cannot be said that a gang rape was committed. The offence alleged is said to have been committed only by the accused Prince.Taking into consideration the facts and circumstances of the case in its totality and the finding arrived at by the learned court after recording the evidence produced by the prosecution, it cannot be said that a gang rape was committed. Moreover, from the evidence on record, it cannot be said that there was a pre-arranged plan or a prior meeting of minds so as to hold that the act of the accused persons was in furtherance of the common intention to do the criminal act alleged. Such being the situation, in the present case, we have no hesitation in holding that the prosecution has failed to bring in the application of section 376(2)(g) IPC read with Explanation I appended to it. 16. So far as commission of offence of rape is concerned, it is well proved from the evidence on record and the learned trial court has rightly awarded the conviction to the accused appellant Prince in that regard. There is no illegality in the finding of rape against the present appellant Prince so as to call for any interference by this court. Therefore, the conviction of the accused appellant for the offence under section 376(2)(g) cannot stand and the same is not sustainable in law. The prosecution has totally failed to prove that the prosecutrix Rukmani has been raped by a group of persons acting in furtherance of the common intention. In other words, the ingredients of the offence of gang rape are found wanting and as such the offence under section 376(2)(g) IPC is not proved or the offence of rape, in the instant case, does not fall within its purview. 17. For the aforesaid reasons, we are of the considered opinion that the accused appellant has not committed the offence of gang rape and as such the conviction awarded to him under section 376(2)(g) IPC deserves to be quashed and set aside. However, the offence of rape against the accused appellant is well proved and, therefore, the conviction awarded to him is to be converted to the one under section 376 IPC. The impugned judgment passed by the learned trial court deserves to be set aside, to the extent of convicting and sentencing the accused appellant for the offence under section 376(2)(g) IPC. 18. Consequently, this appeal is partly allowed. The impugned judgment passed by the learned trial court deserves to be set aside, to the extent of convicting and sentencing the accused appellant for the offence under section 376(2)(g) IPC. 18. Consequently, this appeal is partly allowed. The conviction awarded to the accused appellant under section 376(2)(g) IPC is converted to that of Section 376 IPC. He is sentenced for seven years rigorous imprisonment. Accordingly, the impugned judgment dated 31.03.2006 passed by the learned trial court is set aside, to the aforesaid extent.Appeal partly allowed. *******