Pardeep Kumar v. Union Administration, Chandigarh, (2006) 10 SCC 608

FACTS OF THE CASE

The prosecutrix was a girl living in Chandigarh in House no 3359 sector 19D with her mother and brother. There were five accused in the present case namely Lalit Gupta, Ashok Kumar, Pardeep Kumar, Karam Chand and Inderjit Singh. Lalit Gupta was interested in the prosecutrix and used to pester the girl to get married to him. The incident took place on the fateful night of 2^nd February, 1987. The prosecutrix had gone to the market where she met with Lalit Gupta. Lalit told her that he wanted the girl to meet his cousins and his parents so that the marriage proposal could be finalized. He told her to accompany him to his cousin’s place which was located in sector 38 by an Auto rickshaw. She agreed to this and got into the rickshaw. On the way the rickshaw was stopped and another accused Ashok Kumar got into the rickshaw. They finally reached the destination and when they entered the house the third accused Inderjit Singh was present. The three accused drank liquor for a while and when the prosecutrix requested to leave, Inderjit Singh forced her to stay by threatening to kill her if she left. After this Lalit Gupta forced her to have sexual intercourse with him and when she refused, Inderjit threatened her again. Due to the nature and seriousness of the threats, the prosecutrix yielded and Lalit Gupta committed the act of rape on the prosecutrix. Following that even Ashok Kumar defiled the prosecutrix. After this incident had taken place Pardeep Kumar and Karam Chand came to the house. They also took advantage of the prosecutrix and raped her. After all this, the men went to the other room and start consuming liquor. Seeing this window of opportunity, the prosecutrix ran away from the house. On the way the prosecutrix saw some police personnel and narrated the whole incident to them. Upon receiving the alert, the personnel went to the house where the incident had taken place to arrest the accused. Upon entering the house, police arrested Pardeep Kumar and others while Ashok Kumar and Inderjit Singh managed to escape.

An FIR (First Information Report) was lodged on 3^rd February 1987 at 2.20 am against the accused. The prosecutrix was sent for a medical examination at 1.30 PM on 3^rd February 1987. The doctor who performed the examination opined that there were no external injuries on the prosecutrix’s body and she was used to having sexual intercourse.

The trial against the accused thus began and while the proceedings were on Ashok Kumar and Karam Chand died. The accused were convicted under section 376 of the Indian Penal Code dealing with punishment for rape. The accused appealed in the High court which upheld the decision of the lower court be because of two reasons:

The version of events as stated by the prosecutrix in her FIR which was supported by the statement made by constable Raghubir Singh who recorded this evidence from the prosecutrix when she fled from the home in sector 38.
The other reason was the arrest of the accused who had escaped the scene from their house done by CRPF jawans.
The high court also acquitted Inderjit Singh from the case due to lack of evidence against him.

Aggrieved by the judgement of the High court Pardeep Kumar appealed to the Supreme court of India for reversing the judgement thus acquitting him of the offence.

ISSUES OF THE CASE

There were two issues in the case dealt by the courts: –

Was there common intention between the accused to commit the act of rape?
Can Pardeep Kumar be punished under section 376 of the Indian Penal code even though he did not commit the act?

ARGUMENTS FROM THE APPELLANT SIDE

The appellant side stated the following to prove innocence of the accused in the crime:

During deposing of the prosecutrix she had clearly mentioned that only Karam Chand and Ashok Kumar had raped her, not anybody else. So, the question of the accused being punished under section 376 is out of question as he did not commit the act as per the statement of the prosecutrix.

ARGUMENTS FROM THE RESPONDENT SIDE

The respondent being represented by the state made the following submissions:

Though the accused may not have committed rape he was a spectator of the act and that made him liable under section 34 of the Indian Penal Code that refers to Common Intention. This provision in the following case means that the accused though didn’t commit offence but acted with the group in furtherance of common intention. Thus, the accused could also be held liable under section 376 (2) (g) of the Indian Penal Code which reads:

Whoever, 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.

COMMON INTENTION

The only bone of contention in the present case was that of common intention where the appellant side stated that due to no act committed, Pardeep Kumar wasn’t liable under section 476 of the Indian Penal Code while the respondent side stated that he was responsible due to the concept of common intention. There are certain pre-requisites of common intention:

That more than one person had acted in concert with the common intention to commit rape on the victim;
That more than one accused had acted in concert in the commission of the 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 minds of accused persons prior to commission of offence of rape by substantial evidence or by circumstantial evidence; and
That in furtherance of such common intention one or more persons of the group actually committed offence of rape on victim or victims.

In the following case due to the absence of direct evidence the police had to rely in circumstantial evidence which means evidence that appears from the circumstances of the case. In this case the prosecutrix before the court stated that all the five accused were present at home when she entered it and committed the act of rape on her. But in the FIR, she had clearly mentioned that Pardeep Kumar had entered the house after the act of rape was committed on her.

After the incident, the police nabbed the accused at a place near the home but that itself does not prove a pre-concocted plan by the accused to commit the act of rape. Moreover, in the course of the trial the prosecutrix could not prove that the appellant had common intention with the other accused to commit the act of rape.

In fact, in the case of Ashok Kumar v State of Haryana it has been stated that the provision of common intention embodies the principle of joint liability where if an act is committed by one, all are responsible provided there is a meeting of minds. In the present case no evidence was shown to prove that there was a prior meeting of minds. But common intention can also develop on the spot. But, in this case even that wasn’t possible because according to the FIR the appellant had entered with another person after happening of the event.

In the case of Priya Patel v State of MP the court held that the act of common intention must be done in furtherance of performing a criminal act and in this case, it relates to the intention to commit rape. But, in this case the respondents have not been able to prove meeting of minds to perform a criminal act. Thus, we can clearly deduce from the following that there was no common intention between the appellant and the other accused to commit the act of rape.

RAPE

The second question before the court was whether the appellant had committed the offence of rape. The prosecutrix in her deposition had clearly stated that the act of rape had only been committed by Karam Chand and Ashok Kumar. Later when the case went to the Supreme court the prosecutrix clearly stated in open court that the accused had not defiled her and even his conduct in furtherance of common intention could not been proven. Hence, the court held that the act of rape also had not been committed by the appellant.

DECISION OF THE COURT

The court ruled in favor of the appellant due to the following reasons:

The case laid down by the prosecutrix could not prove the act of rape committed by the accused not could it hold him liable under the principle of common intention.
The prosecutrix kept changing her story as the case passed through. During registering the case she stated that all the accused had committed rape on her. When the case went to a higher court, she stated that only two people committed rape on her. In the FIR she said that the accused was not there when the incident took place but in court, she stated that when she entered the home the accused was there with all five men.
The prosecutrix had stated that the accused were consuming liquor but when the police caught them there was no sign of alcohol on them and the prosecutrix did not submit a medical report proving that the accused were drunk.
Due to all these reasons the prosecutrix could not instill confidence in the courts and hence the accused was acquitted in the present case.

CASE LAWS OF COMMON INTENTION IN INDIA

The question to be answered before we move on to the cases is “why is common intention so important that if one person is pronounced guilty, all of them are guilty?” The answer to this question lies in the fact that people who have common intention support, promote and motivate the other person to carry out an offence and many a time justify to the person that what he is doing is correct. Its mostly like abetting the offence and helping the person commit a crime. There have been some landmark judgements in the field of common intention:

In the case of Amrik Singh v State of Punjab the court held that common intention may develop while a fight is going on but this needs to be proven beyond reasonable doubt by the prosecutrix. If we take the same example in our case, the prosecutrix claimed that the accused was present when the crime took place and is thus responsible under common intention. Assuming this theory to be true also, they did not prove the element of common intention as there was no record of any prior discussion or any act done by the accused which seemed as concocted by the group and hence it is the responsibility of the prosecutrix to prove that the intention developed during performance of the act.
Even in the case of Pandurang v State of Hyderabad the court spoke about instant common intention developing during performance of the crime. The same reasoning applies to case because the prosecutrix could not show even a single piece of evidence which proved the accused guilty of common intention.
The landmark case on spur of the moment common intention is that of Mahboob Shah v Emperor where the lordships held that there was no common intention and they should be treated as separate acts from each other. In the same way under this case there was no relevance between the rape on the prosecutrix and the entry of accused. Hence the court rightly separated the two because there was no point of common intention in the case discussed.
In another landmark case of Barendra Kumar Ghosh v King Emperor the court held that “criminal acts mean the unity of criminal behaviour which results in something for which an individual would be responsible, if it were done all by himself would be a criminal offence.” In the case we are dealing with there was no criminal behaviour portrayed by the accused. The accused in the present case was a witness to the crime but did not commit the crime and did not have common intention with the perpetrators hence as per this definition the accused will not be liable.
We come to a case which resembles the case discussed very closely. In the present case the court convicted the accused to imprisonment for life. The accused appealed to the Supreme court stating that he was a friend of the people convicted and happened to visit their home during the offence. He neither had common intention to commit the offence neither did he participate in the offence. In the same way even in our case the accused was merely present at the scene and did not commit any offence hence he wasn’t held responsible and was convicted of the crime. He was also convicted due to the absence of common intention between the parties.

CRITICAL OVERVIEW OF JUDGEMENT

The judgement of the High Court in the present case should come into question. The High court in the present case passed a judgement against the accused only relying upon the statement of the prosecutrix and the investigating officer. This is somewhere a questionable move as in the cases of circumstantial evidence, circumstances must be dealt with by the courts. In the present case the court did not deal with the circumstances or did not observe how the statements were changed by the prosecutrix in her FIR and in court.
Also, one of the key points the High court missed was the fact that earlier when the FIR was lodged the prosecutrix had claimed all persons involved to have committed rape but when she was asked in court, she only claimed that two people had committed the offence. This itself should have been used by the High court to quash the judgement because this proves that the prosecutrix is not to be trusted or is giving a false claim in court which amounts to perjury under the Indian Penal Code.
Another point where actions of the High court are questionable is in regards to acquittal of Inderjit Singh. It is a proven fact that when the prosecutrix asked to leave because she couldn’t see Lalit’s parents, Inderjit threatened to kill her if she left. This clearly amounts to criminal intimidation under section 503 of the Indian Penal Code. Thus, Inderjit should have been punished under section 506 of the Indian Penal Code for seven years under the offence of criminal intimidation.

SUGGESTIONS

When a person is accused of rape his stature in society is reduced to a bare minimum and he isn’t given respect in any field due to the tag of a rapist. No one is interested to know whether he is guilty or not but call him a rapist throughout his life even though he may be acquitted of the crime. Thus, under criminal law if somebody puts forward a honest petition and is truly aggrieved by the matter, the court takes cognizance of the same and takes action against the accused. But if the court comes to a conclusion that the suit instituted was to merely take the court’s precious time and was more related to nuisance for the other party the person instituting such a suit in any criminal offence must be punished. This will be beneficial as this will lead to deterrence in the society as lesser number of people will institute bogus suits but more than that the weight on the shoulder of the judiciary regarding pending cases will reduce and more people will find access to justice.

The Indian penal code can also assume levels of joint liability as per the US law. For certain offences the liability must be of a higher grade and for other offences the liability can be uniform as it is today. Another suggested change which can help the judiciary in dealing with rape cases is changing the mindset of people. For ex: – holding educational programs for men in villages or cities explaining to them what rape is or what is the punishment for such an act because many times when people actually commit the act, they don’t know what they are doing. In fact, in the Nirbhaya case the accused when being questioned said they didn’t know what they were doing and were unaware about the concept of rape.

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