JUDGMENT : NARENDRA KUMAR VYAS, J. 1. This criminal appeal preferred by the appellant under Section 374 (2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 04.05.2001 passed by Sessions Judge, Rajnandgaon, District Rajnandgaon in Sessions Trial No. 24/2001 whereby the appellant has been convicted for offences punishable under Sections 376(2) (g) and 324/34 IPC and sentenced him to undergo rigorous imprisonment for 10 years under Section 376(2)(g) IPC, rigorous imprisonment for 2 years under Section 324/34 IPC with a direction to run the sentences concurrently. 2. The record would demonstrate that accused Ghanshyam @ Choubisha was also convicted with present appellant Babal @ Gulab, who has never challenged the judgment of conviction and order of sentence passed against him by the trial Court as he has already completed the entire sentence awarded to him. 3. Case of the prosecution, in brief, is that the prosecutrix was residing in her inlaws house at Kumharpara Dongargarh. Mother-in-law of the prosecutrix and her husband had gone out side of the house for some work and only brother-in-law Ghanshyam, father-in-law Ramkanhaiya and the prosecutrix (PW-1) were there in the house. Accused Babal also came there. It is alleged that on 08.10.2000 at about 3.30 O’clock, father-in-law of the prosecutrix (PW-1) asked her to prepare tea. As soon as, the prosecutrix had gone to kitchen for preparing tea, then accused Ghanshyam entered into the room and asked his fried Babla to remain outside of the room and thereafter accused Ghanshyam closed the door inside the room having knife in his hand and had thrown her on the floor and committed forceful sexual intercourse with the prosecutrix (PW-1). After committing the offence, the prosecutrix (PW-1) tried to shout then Ghanshyam threatened her to kill and also assaulted on the breast, abdomen, back and thigh. On hearing the voice of the prosecutrix, her father-in-law opened the door then the prosecutrix come out of the room thereafter she narrated the incident to her husband Naresh (PW-5). Husband of the prosecutrix (PW-5) had taken her to hospital for medical from where an information was sent to police Station Dongargarh. After getting information, FIR (Ex.P-1) was lodged against the appellants. Husband of the prosecutrix (PW-5) had taken her to hospital for medical from where an information was sent to police Station Dongargarh. After getting information, FIR (Ex.P-1) was lodged against the appellants. The prosecution after usual investigation has submitted the charge sheet before the Additional Chief Judicial Magistrate Dongargarh, who in turn committed the case to the Court of Sessions Judge, Rajnandgaon which was registered as Sessions Case No. 24 of 2001. 4. Learned Sessions Judge, Rajnandgaon after perusal of the records reached the conclusion that there was sufficient material for framing of charges under Sections 376(2)(g) and 324/34 IPC. Accused denied the charges levelled against him and claimed to be tried. 5. The prosecution in order to prove the guilt of the appellant examined in all 8 witnesses, prosecutrix (PW-1), Dr. A.K. Tamrakar (PW-2), Jagdish (PW-3), Sukhiram (PW-4), Naresh (PW-5), Head Constable Onkar Soni (PW-6), Hinchharam (PW-7), S.L. Borasi (PW-8). The appellant has not examined any witnesses in his support. The prosecution to prove the guilt of the appellant has exhibited the documents FIR (Ex.P-1), Memo dated 08.10.2000( Ex.P-2), MLC of accused (Ex.P-3A), report (Ex.P-3), Examination of weapon dated 18.04.2001 (Ex.P-4A), report (Ex.P-4), MLC of prosecutrix (Ex.P-5A), report (Ex.P-5), examination of undergarment of accused (Ex.P6-A), report (Ex.P-6), examination of cloth of prosecutrix (Ex.P7-A), report (Ex.P-7), MLC of accused (Ex.P-8A), report (Ex.P-8), property seizure (Ex.P-9), property seizure (Ex.P-10), property seizure (Ex.P-11), Crime Details form (Ex.P-12), Map (Ex.P-13), consent for medical by the prosecutrix (Ex.P-14), arrest memo (Ex.P-13). 6. Statement of accused/appellant has been recorded under Section 313 Cr.P.C. in which he has stated that there is illicit relationship between the prosecutrix’s mother-in-law and himself, the community imposed fine of Rs. 3,000/- upon them, therefore, pleaded innocence and false implication. 7. Learned trial Court after appreciating evidence, material on record has convicted appellant Babla and other co-accused Ghanshyam for commission of offence under Section 376 (2)(g) and 324/34 IPC therefore, he has been convicted and sentenced them to undergo RI for 10 years under Section 376(2)(g) IPC, RI for 2 years under Section 324/34 IPC. Appellant Babla remained in jail form 12.10.2000 till the date of judgment i.e. 4.5.2000. This Court has granted bail to the appellant on 24.07.2001. Thus appellant Babla remained in jail for more than 9 months and 10 days. 8. Appellant Babla remained in jail form 12.10.2000 till the date of judgment i.e. 4.5.2000. This Court has granted bail to the appellant on 24.07.2001. Thus appellant Babla remained in jail for more than 9 months and 10 days. 8. Being aggrieved with the judgment of conviction and order of sentence of the trial Court the appellant has preferred the appeal before this Court. 9. Counsel for the appellant would submit that the learned Sessions Judge should have held that father-in-law of the prosecutrix (PW-1) has not stated anything about appellant Babla in his case diary statement still conviction of the appellant is without any evidence as such the finding recorded by the trial Court is perverse. He would further submit that when the prosecutrix’s father-in-law opened the door, she should have informed this fact to him but no such statement was made by the father-in-law of the prosecutrix in his diary statement which creates doubt over the prosecution story. Counsel for the appellant would submit that the place of occurrence is crowed locality, therefore, the prosecutrix should have made hue and cry but she did not do this, which creates suspicion over the prosecution story. He would further submit that no material was brought on record to demonstrate that the present appellant was present at the place of occurrence still he has been convicted in the garb of Section 376(2)(g) IPC which is not permissible looking to the facts and circumstance of the case. Learned counsel for the appellant would submit that the prosecution has not proved common intention of appellant for committing the rape to attract section 376 (2)(g) IPC and would submit that merely his presence does not involve the appellant for commission of offence. He would further submit that the prosecutrix has no where stated about the involvement of the present appellant, even in the Court statement she has not stated anything against appellant Babla, still he has been convicted without examining the provisions of Section 376(2)(g) IPC, as such conviction of appellant Babla under the said section is bad in law. He would further submit that the learned trial Court has also convicted the appellant under Section 324/34 IPC which is also illegal as the prosecution has not proved common intention with cogent evidence, as such conviction of the appellant under Section 324/34 IPC is also bad in law. He would further submit that the learned trial Court has also convicted the appellant under Section 324/34 IPC which is also illegal as the prosecution has not proved common intention with cogent evidence, as such conviction of the appellant under Section 324/34 IPC is also bad in law. He would rely on the judgment of Hon’ble Supreme Court in the case of Ashok Kumar vs. State of Haryana, (2003) 2 SCC 143 and Virender Nanda @ Dimple vs. State of Delhi decided on 23rd July, 2007. 10. On the other hand, learned counsel for the State would oppose the submission made by counsel for the appellant and would submit that after appreciating the evidence, learned trial Court has passed the judgment of conviction and order of sentence which is legal, based on appreciation of evidence, therefore, no perversity has been pointed out by the appellant to challenge the legality and propriety of the judgment. He would submit that there is clear ingredients of Section 376 (2)(g) IPC, therefore, conviction of the appellant is legal and justified and would pray for dismissal of the appeal 11. I have heard learned counsel for the appellant and perused the records. 12. The prosecution to prove their case has examined the prosecutrix (PW-1) before the trial Court, who has stated that appellant Babla was sitting out side of the room near the door and also admitted in her cross-examination, that as per the social meeting the society has imposed fine amount of Rs. 3000/- on the mother-in-law and accused Babla and the said amount was deposited by them. She has also admitted that before imposition of social punishment the present appellant used to come to her house and after imposition of social punishment the appellant did not come to her house. In the cross-examination, she has admitted that her house is surrounded to other houses and also admitted that if any noise made by her in the room, that can be heard by the neighbours. The prosecutrix (PW-1) was examined by Dr. Jyoti Sadani, Medical Officer, Community Health Centre, Dongargarh. After examination of the prosecutrix (PW-1), Dr. Jyoti Sadani was expired, therefore, report was exhibited by Dr. A.K. Tamrakar (PW-2), who has identified the handwriting of Dr. The prosecutrix (PW-1) was examined by Dr. Jyoti Sadani, Medical Officer, Community Health Centre, Dongargarh. After examination of the prosecutrix (PW-1), Dr. Jyoti Sadani was expired, therefore, report was exhibited by Dr. A.K. Tamrakar (PW-2), who has identified the handwriting of Dr. Sadani, as he worked with her and exhibited report Ex.P-7 and Ex.P-8 which is as under: (i) Incised wound right forearm post aspect 3 x ½ x ½ cm spindle shaped (ii) Stab injury right HC abdomen ½ x ¼ x ¼ cm. (iii) Stab injury left epigastric region ½ x ¼ x ¼ cm. (iv) Stab injury left hypochondriac region 1 x ¼ x ¼ cm. (v) Stab injury left paraumbilical region abdomen spindle shaped 1 x ½ x 1 cm. (vi) Stab injury right ASIC ¼ x ¼ x ½ cm. (vii) Incised wound right late aspect of lower part of chest 2 x ½ x ¼ (viii) Stab injury middle of back of epigashri region of chest 2 x ½ x 1½ spindle shaped right late to T1Tx regions is directed down word and medially. (ix) Incised wound right paravertebrale region 6 cm below from No. size 1½ x ½ x 1/4 cm. (x) Incised wound left back of chest infrascapular size 3 x ½ x ½ Opinion: (i) Nature of injury is simple in nature. (ii) Caused by hard and sharp object. (iii) Duration of incident 3-5 hours. On internal examination of the prosecutrix, no evidence of forceful sexual assault has been found on the body of the prosecutrix. 13. From the above stated factual matrix, the point to be determined by this Court is whether conviction of the appellant under Section 376(2)(g) is legal, justified or not. 14. For better understanding the issue to be determined by this Court, it is expedient for this Court to extract 376(2)(g) IPC which exists prior to amendment as the date of offence is October, 2001. 14. For better understanding the issue to be determined by this Court, it is expedient for this Court to extract 376(2)(g) IPC which exists prior to amendment as the date of offence is October, 2001. The relevant provision of Section 376(2)(g) IPC reads as under: Commits gang rape read with Explanation-1 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. 15. From bare perusal of the evidence of the prosecutrix, it is quite vivid that appellant Babla was sitting outside of the room and co-accused Ghanshyam entered into the room and on threatening he has committed rape with the prosecutrix. The prosecution has not established that present appellant has committed any overt act on the prosecutrix. Naresh (PW-5) has stated that his wife told him that accused Ghanshyam committed sexual intercourse with her on the point of knife and assaulted her on the different parts of body. He has not stated anything to demonstrate that there was any common intention for committing the offence. More over, the prosecutrix in her statement has nowhere stated that any special act had been attributed by appellant Babla to commit rape and even she has not stated any act committee by appellant Babla to portray appellants in furtherness of the common intention to commit rape. The witnesses cited by the prosecution do not speak about common intention for committing the offence, as such basic ingredients are found missing to attract offence under Section 376(2)(g) IPC. 16. The issue with regard to offence under Section 376(2)(g) IPC has come up for consideration before the Hon’ble Supreme Court in the case of Ashok Kumar vs. State of Haryana, 2003 (2) SCC 143 wherein the Hon’ble Supreme Court has observed in paragraph-8, 9 and 10 as under: 8. Charge against the appellant is under Section 376(2)(g) IPC. 16. The issue with regard to offence under Section 376(2)(g) IPC has come up for consideration before the Hon’ble Supreme Court in the case of Ashok Kumar vs. State of Haryana, 2003 (2) SCC 143 wherein the Hon’ble Supreme Court has observed in paragraph-8, 9 and 10 as under: 8. Charge against the appellant is under Section 376(2)(g) IPC. 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 offender. In such cases, there must be criminal sharing marking out a certain measure of jointness in the commission of offence. 9. Now what is to be seen is whether there are any circumstances to indicate concert between the appellant and Anil Kumar in committing rape on Sudesh. Learned Advocate appearing for the respondent, contended that the appellant had facilitated Anil Kumar to commit rape on the deceased, Sudesh and, therefore, it must be inferred that he was in concert with him. Facilitation of rape by Anil Kumar by the appellant, if at all, has to be inferred from the circumstances. Apart from the fact that he was present in his house at about 3.30 p.m. in hot summer month at the crucial time, nothing more is established. By that factum alone, the inference that the appellant being in concert with Anil Kumar cannot be established. Apart from the fact that he was present in his house at about 3.30 p.m. in hot summer month at the crucial time, nothing more is established. By that factum alone, the inference that the appellant being in concert with Anil Kumar cannot be established. We cannot presume that by his mere presence in his house, he was aware of the illicit affair going on between Anil Kumar and the victim, or that he was acting in concert with Anil Kumar. The evidence of Ranbir (PW-4) and Rajbir (PW-6) before the Court that they found Anil Kumar to be in compromising position with Sudesh when the appellant walked in with a pistol and threatened to shoot them is not believed by the Trial Court. In fact, no pistol was recovered from him. He has been acquitted of that charge under Section 506 IPC and that part of the order has now become final since no appeal has been preferred against such acquittal. 10. No case is put forth or established that the appellant committed an offence under Section 376 IPC as such, but he is charged with an offence arising under Section 376(2) (g) IPC by which he is deemed to have committed such an offence. In the absence of any evidence of concert between Anil Kumar and the appellant, the conviction recorded by the Trial Court as affirmed by the High Court cannot be sustained. 17. Again Hon’ble Supreme Court in the case of Priya Patel vs. State of M.P. and Another, 2006 (6) SCC 263 has held in Para 8 which reads as under: 8. Section 376(2) 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 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. 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 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 same intention or similar intention. The sine qua non for bringing in application of Section 34IPC 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. 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) IPC. 18. Hon’ble Supreme Court in the case of Pradeep Kumar vs. Union Administration, 2006 (10) SCC 608 has held in Para 10 to 12 which reads as under: 10. To bring the offence of rape within the purview of Section 376(2)(g), IPC, 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 that 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. (ii) that more that 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 prearranged 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. (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. 11. 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. 12. 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. 19. Again Hon’ble Supreme Court in the case of State of Rajasthan vs. Roshan Khan and Others, 2014 (2) SCC 476 has observed in paragraph-16 as under: 16. Explanation 1 to Section 376(2)(g), IPC, states that 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 the sub-section. Explanation 1 to Section 376(2)(g), IPC, states that 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 the sub-section. This Court has, therefore, consistently held that where there are more than one person acting in furtherance of their common intention of committing rape on a victim, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim. [See: Om Prakash vs. State of Haryana, (2011) 14 SCC 309 , Ashok Kumar vs. State of Haryana, (2003) 2 SCC 143 , Bhupinder Sharma vs. State of H.P. (2003) 8 SCC 551 , Pardeep Kumar vs. Union Administration, (2006) 10 SCC 608 and Priya Patel vs. State of M.P. (2006) 6 SCC 263 ]. 20. If the above principle of law laid down by the Hon’ble Supreme Court is applied in the present facts of the case then from the evidence of the record, it is evident that there is no evidence brought on record by the prosecution that Babla shared the common intention to commit rape with accused Ghanshyam. There is no evidence against appellant Babla before the incident of rape that at any point of time he had intention to commit rape with the prosecutrix. Merely presence at such place is not sufficient to show that there was prior consent or meeting of mind or plan formed suddenly at the time of commission of offence by the appellant with other accused for commission of rape on the prosecutrix. As per the medical opinion, it is also quite vivid, that there was no exact opinion of sexual assault that can be proved which creates doubt and the learned trial Court has not considered the statement of appellant Babla recorded under Section 313 Cr.P.C. wherein he has stated that there was illicit relationship between him and the mother-in-law of the prosecutrix, therefore, he has been falsely implicated in the case which creates doubt over naming of the present appellant. In this circumstance, the submission of learned counsel for the appellant that appellant cannot be convicted for commission of offence punishable under Section 376(2)(g) IPC is to be accepted. 21. In this circumstance, the submission of learned counsel for the appellant that appellant cannot be convicted for commission of offence punishable under Section 376(2)(g) IPC is to be accepted. 21. Since the prosecution is unable to prove the guilt of the appellant beyond reasonable doubt that the appellant has common intention to commit rape with the prosecutrix, the involvement of the appellant in commission of offence under Section 324 IPC with the aid of 34 IPC is also not sustainable in the eye of law. 22. Accordingly, the appeal is allowed. The appellant is reported to be on bail. His bail bonds shall stand discharged in view of section 437-A Cr.P.C.