Homosexuality between adults an fundamental right -Delhi High Court's Historical Judgment

The historical judgment from Delhi High Court on declaring consensual homosexuality between adults an fundamental right  has 105 Pages, 132 para and 26397 words. It is very big to publish here. So we are publishing here only conclusion of the judgment. 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI
WP(C) No.7455/2001
Date of decision : 2nd July, 2009

Naz Foundation .... Petitioner

versus
Government of NCT of Delhi
and Others .... Respondents

CORAM: HON’BLE THE CHIEF JUSTICE & HON’BLE DR. JUSTICE S.MURALIDHAR

JUDGMENT BY : AJIT PRAKASH SHAH, CHIEF JUSTICE:




.....................................
...................................
CONCLUSION
129. The notion of equality in the Indian Constitution flows from
the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru
on December 13, 1946. Nehru, in his speech, moving this
Resolution wished that the House should consider the
Resolution not in a spirit of narrow legal wording, but rather
look at the spirit behind that Resolution. He said, ”Words are
magic things often enough, but even the magic of words
[WP(C)7455/2001] Page 103 of 105
sometimes cannot convey the magic of the human spirit and
of a Nation’s passion…….. (The Resolution) seeks very
feebly to tell the world of what we have thought or dreamt
of so long, and what we now hope to achieve in the near
future.” [Constituent Assembly Debates: Lok Sabha
Secretariat, New Delhi: 1999, Vol. I, pages 57-65].

130. If there is one constitutional tenet that can be said to be
underlying theme of the Indian Constitution, it is that of
'inclusiveness'. This Court believes that Indian Constitution
reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that
Indian society traditionally displayed, literally in every
aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as “deviants' or
'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding,
such persons can be assured of a life of dignity and nondiscrimination.
This was the 'spirit behind the Resolution' of
which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law
to be held captive by the popular misconceptions of who the
LGBTs are. It cannot be forgotten that discrimination is antithesis
of equality and that it is the recognition of equality
which will foster the dignity of every individual.
[WP(C)7455/2001] Page 104 of 105

132. We declare that Section 377 IPC, insofar it criminalises
consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution. The provisions of
Section 377 IPC will continue to govern non-consensual
penile non-vaginal sex and penile non-vaginal sex involving
minors. By 'adult' we mean everyone who is 18 years of age
and above. A person below 18 would be presumed not to be
able to consent to a sexual act. This clarification will hold till,
of course, Parliament chooses to amend the law to
effectuate the recommendation of the Law Commission of
India in its 172nd Report which we believe removes a great
deal of confusion. Secondly, we clarify that our judgment
will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.

CHIEF JUSTICE
JULY 2, 2009 S.MURALIDHAR, J
“nm/v/pk”
[WP(C)7455/2001] Page 105 of 105

A social behaviour without intention may be offence of abetment- SC of India Judgment

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 681 OF 2003

Dammu Sreenu                              Versus                    State of A.P.                                                

JUDGMENT By-Dr. Mukundakam Sharma, J.
1. The appellant herein filed the present appeal seeking for his acquittal from the order of conviction under Section 306 of the Indian Penal Code (hereinafter referred to as `the IPC') whereby he was sentenced to undergo rigorous imprisonment for three years.

2. The appellant herein allegedly had illicit relationship with the wife of the deceased Bitra Nagarjuna Rao. The wife of the deceased was also made a co-accused in the same offence under Section 306 IPC and she was convicted for the aforesaid offence and was sentenced initially to undergo rigorous imprisonment for a period of three years which, however, later on was altered to one year of rigorous imprisonment by the High Court of Andhra Pradesh. The said sentence of one year has been served out by Accused No. 2, the wife of the deceased Bitra Nagarjuna Rao.

3. The prosecution has alleged in its case that the present appellant had developed an illicit intimacy with Accused No. 2, who was the wife of the deceased Bitra Nagarjuna Rao. On the night of 31.12.1995, accused No. 2, the wife of the deceased went out of her house and returned to her matrimonial home only on the next day. The deceased, Bitra Nagarjuna Rao was unhappy with the aforesaid conduct and so, naturally questioned her about her behaviour because of which there was a quarrel between the two. Being disturbed and perturbed on account of the behaviour of his wife (Accused No. 2), the deceased, Bitra Nagarjuna Rao called the father of Accused No. 2 and asked him to take her away so as to give her proper counselling. Accordingly, she was taken away by her father. On the same day the present appellant (Accused No. 1) came to the house of the deceased and when he was questioned by the inmates of the house of the deceased, he stated that he had illicit relations with the wife of the deceased and that he would keep coming to the house of the deceased so long she does not object to the same. When he was told that Accused No. 2 had gone with her father, Accused No. 1 went to the house of the brother of Accused No. 2 and took her away despite the protest of PW-5, brother of Accused No. 2, in whose house his father kept her. The appellant took her away and brought her back to the house of her brother only after 4 days and to her parents' house on 06.01.1996.

4. Having come to know about the aforesaid incident, the deceased felt humiliated and insulted. He committed suicide by hanging himself in the intervening night of 7th and 8th January, 1996. It is also to be noted, at this stage, that prior to his suicide, the deceased, Bitra Nagarjuna Rao expressed before his brother that it would be better to die as he felt very much insulted and humiliated. The deceased having committed suicide, his brother gave a report to the police which was registered as a case under Section 174 of Criminal Procedure Code, 1973 (for short `the CrPC') which was, during the course of investigation, altered to a case of Section 306 IPC.

5. The police after investigation submitted a charge-sheet against the accused. The accused, however, denied the charge. Accordingly, he was tried under the aforesaid charges. During the course of trial the prosecution examined as many as 13 witnesses and the appellant-accused was also examined under Section 313 of the CrPC wherein he denied his involvement in the offence.

6. The trial court appreciated the materials available on record and, thereafter, passed a judgment and order of conviction. He convicted the present appellant under Section 306 IPC and sentenced him to undergo rigorous imprisonment for a period of five years with a fine of Rs. 100/- in default to undergo simple imprisonment for one month. The trial court also convicted accused No. 2, i.e. wife of the deceased, under Section 306 IPC and sentenced her to undergo rigorous imprisonment for a period of    five years.

7. Being aggrieved by the aforesaid judgment and order of conviction and sentence the appellant as also the wife of the deceased filed a common criminal appeal in the court of IInd Additional Sessions Judge, Guntur which was registered as Criminal Appeal No. 32 of 1998. The said appeal was allowed in part and the conviction and sentence awarded by the trial court was altered and reduced by the learned Additional Sessions Judge to 3 years simple imprisonment.

8. In revision the High Court maintained the order of conviction against the accused-appellant but altered the sentence of Accused No. 2, i.e. the wife of the deceased to one year imprisonment which she has already undergone.

9. Now this appeal is, therefore, filed only by appellant No. 1, who was convicted and ordered to undergo simple imprisonment for three years. An order to release appellant No. 1 on bail was passed pursuant to which Accused No. 1 is on bail. The appeal was listed before us for hearing during the course of which we heard the learned counsel appearing for the parties and were also taken through the records.

10.According to the learned counsel appearing for the appellant, ingredients of abetment are totally absent as envisaged under Section 306 IPC read with Section 107 of the IPC and, therefore, Accused No. 1 is liable to be acquitted. It was submitted by him that on a proper interpretation of the facts as also the provisions of Section 306 IPC it cannot be said that the appellant herein was in any manner responsible for abetting the suicide committed by the deceased which was an independent act of the deceased. It was also submitted by him that the appellant did not in any manner substantially assisted the deceased in committing the offence of suicide and since there was no such participation of the appellant in abetting the offence of suicide, the conviction and sentence under Section 306 IPC is required to be set aside and quashed.

11.The aforesaid submissions were, however, refuted by learned counsel appearing for the State contending inter alia that there is a concurrent find of facts by three courts below finding the appellant guilty of the offence under Section 306 IPC and, therefore, the said findings cannot be said to be in any manner as untenable or unjustified. 12.The fact that the appellant had illicit relationship with Accused No. 2, who was the wife of the deceased, is an admitted position for which there was no cross-examination on the point which was clearly stated by PW-5, who is the brother of Accused No. 2, in his statement on 2.1.1996 which is reproduced herein below :

            "On 2-1-1996 my father brought A2 to my house at Tsunduru and he informed that she is having illicit contact with A1 to change her behaviour brought her to my house to keep some time. On the same day evening A1 came to my house and took away A2. Some discussion take place between myself and A1 regarding coming to my house. Due to fear, I could not resist for taking away A2."

13. We have carefully examined the aforesaid statement of PW-5 and on perusal of the statement we do not find that any suggestion was made to the said PW-5 that there did not exist an illicit relationship between Accused No. 1 and Accused No. 2. Besides, the close relatives of the deceased who were also examined as witnesses had categorically stated in their statements that on coming to know of the fact that Accused No. 1 has taken Accused No. 2 from the house of PW-5 and left her only on 06.01.1996 at her parents house, the deceased stated before the said inmates of his house that because of the said insult and humiliation he does not like to live. It is also proved that immediately thereafter in the night   intervening 7th and 8th of January, 1996 the deceased committed suicide. The aforesaid fact leads to only one conclusion that it is on account of humiliation and insult due to the behaviour and conduct of Accused No. 1 and Accused No. 2 that he proceeded to commit the suicide.

14.The facts which are disclosed from the evidence on record clearly establish that Accused No. 1 had illicit relationship with Accused No. 2 who is the wife of the deceased. It is also not in dispute that Accused No. 1 was visiting the house of the deceased to meet Accused No. 2 and that he even went to the house of deceased when he came to know that the wife of the deceased was sent with her father for counselling and advise. He loudly stated that he would continue to have relationship with Accused No. 2 and would come to her house so long she does not object to the same. He also took her away from the house of PW-5, her brother and kept her with him for 4 days. Immediately after the said incident the deceased committed the suicide. Therefore, there is definitely a proximity and nexus between the conduct and behaviour of Accused No. 1 and Accused No. 2 with that of the suicide committed by the deceased.         Besides, there is clear and unambiguous findings of fact of three courts that the appellant is guilty of   the offence under Section 306 of IPC. Such findings do not call for any interference in our hand. This Court also does not generally embark upon reappreciation of evidence on facts which are found and held against the appellant.

15.Considering the entire facts and circumstances of the case we are, therefore, not inclined to interfere with the order of conviction as also the order of sentence passed against the accused-appellant. We uphold the order of the High Court and dismiss this appeal. The bail bond of the accused-appellant stands cancelled. He shall surrender forthwith to serve out the remaining period of the sentence.

                                                             .................................J.
                                                                (Dr. Mukundakam Sharma)
                                                              ................................J.
                                                                (Dr. B.S. Chauhan)

New Delhi,
May 28, 2009

Judgment between "No innocent man is punished". & "A guilty man does not escape"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1502 OF 2007

 

Narendra      V/s      State of Karnataka                                               

JUDGMENT
By Dr. ARIJIT PASAYAT, J.

1.         Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court setting aside the judgment of acquittal recorded by learned Third Additional Sessions Judge, Bangalore. Learned Sessions Judge have found the accused appellant guilty of offence punishable under Section 498(A) and 302 of the Indian Penal Code, 1860 (In short the `IPC').

2.         Background facts leading to the prosecution of the appellant are as follows:  On 13/14.2.1994 Smt. Mythradevi (hereinafter referred to as the `deceased') was done to death in the bedroom of the matrimonial home of the deceased. According to 'the investigation reports by about 6 a.m. on 14.2.1994 the inmates of the matrimonial home of the deceased learnt about the suspicious death of the deceased. By 9.30 a.m. on the very same day parents of the deceased came to the matrimonial home of the deceased after hearing the news of death of their daughter Mythradevi. Father of the deceased (P.W.6) informed the same to the Jurisdictional Police i.e., Srirampura Police Station as per complaint Ex. P.6. Thereafter, first part of investigation under Section 176 of the Code of Criminal Procedure, 1973 (in short the `Code') proceedings took place at about 2 p.m. on the same date after arrival of Taluk Executive Magistrate Mr. Y.M. Ramachandra Murthy (P.W.1). His inquest report is at Ex. P.1. The investigating agency kept watch over the dead body till the inquest proceedings were conducted, then the dead body was shifted for post mortem to Victoria hospital. As it was late in the night, autopsy was done on the dead body on 15.2.1994 by Dr. S.B. Patil (P.W.2). He gave postmortem report as per Ex. P2 and his opinion is at Ex. P 3. According to him, death was due to asphyxia as a result of compression of neck by human hands. The parents, sisters and other relatives of the deceased were examined. Their statements revealed after marriage between the parties, deceased started living in the matrimonial home,. Parents visited the deceased on 4 to 5 occasions. The last time the parents saw her alive was on 12.2.1994 i.e. about two days prior to her death. During this 12 months period of her stay at matrimonial home, according to kith and kin, deceased was very depressed, unhappy and was even scared to talk to any of kith and kin including the parents, whenever they visited her at matrimonial home. During her visits to the parents house, on enquiry they found the cause of her depression and unhappiness. It was due to improper treatment at the hands of her husband. Her husband was not talking to her. He was not looking after her well and he did not even like her. This was made known to her by coming home at very late hours and not talking to her in the normal way. Last visit of her parents on 12.2.94 to invite the deceased and the respondent for their first wedding anniversary at the parenta1 house of the deceased was rejected by the husband of the deceased. After that, they got the news about her death on 14.2.1994 at about 9 am The accused was not found at home. Therefore a search to apprehend him commenced. According to P.W. 3 on 15.2.1994 he was apprehended and produced before the Police Inspector (P.W. 11) as per the report at Ex.P 4. Prior to that the PSI (PW5) on the basis of the complaint of father of the deceased, registered Crime No. 71/94 for the offence punishable under Section 302 IPC. A spot mahazar was conducted under Ex.P-7, under which M.Os. 6 to 8, blood stained bed sheets, pillow cover and saree of the deceased were seized. During the inquest proceedings personal ornaments of the deceased found on the dead body i.e., M.Os. 1 to 13 including gold bangles and chain came to be seized. Ex. P.8 is the wedding card. Exs. P.9 and 10 are the photographs, which were taken at the time of inquest proceedings to show the exact position of the dead body in the bedroom of the matrimonial home of the deceased. P.W. 7 is the mother of the deceased. P.W. 8 is the elder sister of the deceased, whose statements were also recorded by the Taluk Executive Magistrate. P.W. 9 is the panch witness for the inquest proceedings. P.W. 10 is the witness for spot mahazar (Ex. P.7), but he resiled from the statement given during investigation. P.W.11 is the investigating officer, who took up further investigation from P.W.5 and filed the charge sheet against the appellant-accused. After completion of investigation charge sheet was filed. Trial court found the evidence not to be cogent and directed acquittal. It is to be noted that eleven witnesses were examined by the prosecution and two witnesses by the defence. Accused took the plea that he had gone to another place for purchase of milk on 13.2.1994 in the morning and returned only on 14.2.1994 at about 10.45 am and therefore he was not in any way involved with the crime. The High Court by the impugned order set aside the acquittal and found the appellant guilty of offence punishable under Sections 302 and 498(A) IPC. The High Court found that the analysis made by the trial court was erroneous. The trial court should not have placed reliance on the evidence of DWs 1 & 2 to accept the plea of alibi. Therefore the trial court should not have directed acquittal.

3.         In support of the appeal learned counsel for the appellant submitted that two views are possible. On the evidence on record the trial court had taken a view which is a possible one. Taking into account the limited scope for interference with the judgment of acquittal, the High Court should not have interfered in the matter. Further the alibi should have been accepted. There was no motive, no torture or no demand of dowry. There is no evidence for establishing the accusations either for Section 498A or Section 302 IPC.

4.         Learned counsel for the respondent-State on the other hand supported the judgment.

5.         In the present case there are certain material aspects which were lost sight of by the trial court but have been noted by the High Court. The dead body was detected in the morning of  14.2.1994. Parents of the deceased informed the police and not the inmates. The parents were informed by neighbours and not by the inmates. DW2 has been disbelieved as he was nearly 70 years of age. It was highly improbable that he was in employment as a watchman. The trial court had held that the evidence of PWs.6 to 8 regarding pressing mark on the neck and injuries on the fore arms of the deceased are not corroborated by the medical opinion. This is factually incorrect. The doctor (PW2) had categorically stated that he was of the opinion that death was due to result of compression of the neck, and the post mortem report was accordingly issued. PW6 has stated that second opinion was sought for and then the report was given. The falsity of alibi is an additional link.

6.         In Trimukh Maroti Kirkan v. State of Maharashtra [2006 (10) SCC 681] it has been noted as follows:

"The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some  assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpunished.

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003(11) SCC 271].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:  "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

7.         That being so there is no merit in this appeal which is accordingly dismissed.

                                                                 ........................................J.
                                                                    (Dr. ARIJIT PASAYAT)

                                                                .........................................J.
                                                                    (Dr. MUKUNDAKAM SHARMA)
New Delhi,
May 05, 2009

A woman cannot be said to have an intention to commit rape.

                                                                                  REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 847 OF 2009

(Arising out of SLP(Crl.) No. 2207 OF 2008)


State of Rajasthan                                                ....Appellant
                                              Versus
Hemraj & Anr.                                                    ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.
1.         Leave granted.

2.         Challenge in this appeal is to the order passed by a learned Single Judge of the Rajasthan High Court, Jaipur Bench dismissing the application for grant of leave to question correctness of the judgment of learned Additional District Sessions Judge (Fast track), No.2 Alwar.

3.         Background facts in a nutshell are as follows:

Respondents were facing the trial for alleged commission of offence punishable under Section 342 and 376(2) of the Indian Penal Code, 1860 (in short the `IPC'). PW1 was the victim. The trial court noticed that it was the accused Chandan who committed rape on her. There was no allegation of rape against the other accused persons namely Hemraj and Smt. Kamla. The accused Chandan was facing trial under the provisions of Juvenile Justice Act, 2000 (in short the `Juvenile Act').The trial court as noted above held the accused Hemraj guilty of offence punishable under Section 342 IPC and held that the Accused Kamla cannot be convicted in terms of Section 376 (2) IPC. The State filed an appeal questioning acquittal of the respondent from the accusations relatable to Section 376(2) IPC. The High Court held that so far as the accused Hemraj is concerned his presence at the spot was doubtful. In any event both the respondents cannot be held guilty of offence punishable under Section 376(2) IPC.

4.         Learned counsel for the appellant-State submitted that scope and ambit of Section 376(2)(g) and the explanation appended thereto have been lost sight of by the High Court.

5.         Learned counsel for the respondent on the other hand submitted that the High Court rightly noted that the presence of accused Hemraj at the alleged time of rape has not been established. Additionally, a lady i.e. respondent No.2 cannot be held guilty even in terms of the Explanation to Section 376 (2)(g) of the IPC.

6.         In order to appreciate rival submissions Sections 375 and 376 need to be noted. They so far as relevant read as follows:-

"375. Rape
A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under sixteen years of age.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.--Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

376. Punishment for rape

(1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either escription for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

xx                    xx                    xx                     xx                    xx

(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 that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years,

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.
x                      xx                    xx                    xx                    xx"

7.           A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. 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. 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 34 IPC 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).

8.        The appeal is without merit, deserves dismissal, which we direct.

                                      .......................J.
                                                              (Dr. ARIJIT PASAYAT)
                            .................................J.
                                                              (ASOK KUAMR GANGULY)
New Delhi,
April 27, 2009