Upholding the conviction of an accused in a 2004 case of gangrape, abduction, and wrongful confinement in Madhya Pradesh, the Supreme Court held that an act of rape even by one person can implicate all in the gang if they acted with a common intention of committing the crime.

Referring to the Criminal Law (Amendment) Act, 1983 (Explanation 1 to 376(2)(g)), a bench of Justice Sanjay Karol and Justice K V Viswanathan, in a judgment delivered on Thursday, May 1, said 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.

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Speaking for the bench, Justice Viswanathan said, “It is very clear that in a case of gangrape 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.”

Rejecting the argument that the prosecutrix was in a relationship with the co-accused, Jalandhar Kol, and the implication that there was consent by her, the judgment referring to earlier decisions of the top court said, “… in view of Section 114A of the Evidence Act, there is a presumption as to absence of consent in case of gang rape and it will be presumed that the prosecutrix did not give consent as long as the prosecutrix states in evidence before the Court that she did not consent.”

The judgment further said that the presumption (of absence of consent) is based on the reasoning that nobody can be consenting to several persons simultaneously and in this case, there is nothing concrete adduced to rebut the presumption of the absence of consent.

Referring to Section 114A of the Evidence Act, the court said once a woman states in evidence that she did not consent, the law mandates a presumption against consent.

Upholding the conviction of the accused Raju @ Umakant and the co-accused Jalandhar Kol for the crime of gangrape under the provisions of Indian Penal Code (IPC), the court found that the concurrent finding both of the trial court and the high court on the Scheduled Caste dimension of the crime was not sustainable.

The judgment said, “There is no evidence whatsoever to establish the fact that the victim’s caste identity was one of the grounds for the occurrence of the offence. In the absence of any evidence attracting the offence of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, we are constrained to record an acquittal for the appellant from the charge of Section 3(2)(v) of the 1989 Act.”

Upholding the conviction of the appellant – Raju @ Umakant –, the top court partially allowed the appeal by him.

While maintaining the conviction of Raju @ Umakant under Sections 366, 342 and 376(2)(g) of the IPC, the court set aside his conviction under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

However, to bring the sentence of Raju @ Umakant on par with that imposed on Jalandhar Kol, the top court modified the sentence of life imprisonment imposed on the Raju @ Umakant to that of rigorous imprisonment for 10 years and fine of Rs.2,000/- with default sentence of rigorous imprisonment of one year in case of non-payment of fine.