The Supreme Court recently held that when a group acts with a common intention to commit gang rape, an act of penetration by even one person is sufficient to convict all others involved [Raju @ Umakant vs. The State of Madhya Pradesh]..A Bench of Justices Sanjay Karol and KV Viswanathan said that as long as all the gang members have acted in furtherance of common intention, they would all be liable for gang rape even though the act of penetration was committed only be one."It is very clear that in a case of gang rape under Section 376(2)(g), an act by one is enough to render all in the gang for punishment as long as they have acted in furtherance of the common intention. Further, common intention is implicit in the charge of Section 376(2)(g) itself and all that is needed is evidence to show the existence of common intention," the Court noted in its judgment of May 1.The Bench made the observation while upholding the conviction of a man accused of participating in the abduction, confinement and gang rape of a woman in Madhya Pradesh in 2004. The accused had approached the Court after the Madhya Pradesh High Court upheld his conviction and sentence under IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [SC/ST Act].“The abduction of the victim, her wrongful confinement, her testimony about being subjected to sexual assault clearly points to the fact that the ingredients of Section 376(2)(g) are squarely attracted,” the Court said, adding that the accused acted in concert and with a common intention to sexually assault the woman..The case arose in June 2004 when the survivor was abducted while returning from a wedding ceremony and later confined at multiple locations.According to her statement, she was raped by two men—Jalandhar Kol and the present appellant, Raju.The prosecution produced thirteen witnesses, including the woman, her father and the investigating officer. The trial court convicted both men for gang rape, kidnapping and wrongful confinement.Raju was sentenced to life imprisonment while Kol was sentenced to imprisonment for ten years.The decision of the trial court was later upheld by the High Court, prompting Raju to move the Supreme Court.Kol did not appeal against the High Court verdict..One of the issues before the Court was that the first information report (FIR) only mentioned about rape by Jalandhar and not by Raju (the appellant before the Supreme Court) though the victim had clearly mentioned in her statements and deposition that both the accused had raped her by penetrating her.The Supreme Court noted that the role of appellant Raju in kidnapping and confinement was clearly made out and the victim had also clearly stated that Raju too had committed rape on her.Moreover, even if it is accepted that Raju did not penetrate her, he would still be liable for gang rape as per law."In Pramod Mahto and Others vs. State of Bihar (1989), this Court held that the Explanation has been introduced with a view to effectively dealt with the growing menace of gang rape and in such circumstances, it was not necessary that the prosecution should adduce clinching proof of complete act of rape by each one of the accused on the victim or on each one of the victims where there are more than one," the Court noted.In this case, as is clear from the sequence of events, the abduction of the victim, her wrongful confinement, her testimony about being subjected to sexual assault clearly points to the fact that the ingredients of Section 376(2)(g) are squarely attracted and the appellant (Raju) along with Jalandhar Kol acted in concert and with a common intention to sexually assault the victim, the Court concluded.Thus, it reaffirmed the principle of joint liability in gang rape, noting that the offence is rooted in common intention and that a woman cannot be expected to consent to several persons simultaneously.The Court also clarified that despite the victim's clear statements of rape by both the accused, the Bench chose to explain the above aspect of gang rape only because accused Raju had argued that his role as a participant in the sexual assault of rape was not specifically mentioned in the FIR.Thus, it upheld Raju's conviction for gang rape. However, the Court set aside Raju's conviction under Section 3(2)(v) of the SC/ST Act citing lack of evidence that the assault was committed on the basis of the survivor’s caste identity. Referring to its judgment in Patan Jamal Vali v. State of Andhra Pradesh, the Bench said there must be a clear causal link between the offence and caste identity, which was missing in this case.The Court also ruled that discrepancies between the victim’s initial complaint and her later statement did not dilute her overall credibility.“Minor contradictions in the evidence do not detract from the clinching testimony of the prosecutrix,” the Court said, adding that her account inspired confidence and could be relied upon without corroboration..The Bench also expressed concern over the continued use of invasive medical procedures after noting that the survivor had been subjected to the two-finger test. It reiterated that the practice is “inhuman and degrading”. “A woman’s sexual history is wholly immaterial… It is patriarchal and sexist to suggest that a woman cannot be believed merely for the reason that she is sexually active," the Court observed. .Ultimately, taking into account that co-accused Jalandhar Kol had been sentenced to 10 years for the same offence, the Court reduced Raju’s sentence from life to 10 years rigorous imprisonment while his convictions under Sections 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc), 342 (Punishment for wrongful confinement), and 376 (gang rape) IPC were left undisturbed..The petitioner was represented by advocates Susheel Tomar, Vishnu Kant, Harshita Verma, Avinash Tiwari and Sanjeev Malhotra. The respondent was represented by advocates Mrinal Gopal Elker, Sarthak Raizada, Mukesh Kumar Verma, Aditya Chaudhary and Chhavi Khandelwal. .[Read Judgment]
