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CASE NO.: Appeal (crl.)  754 of 2006

PETITIONER: Priya Patel                                                      

RESPONDENT: State of M.P. & Anr.                                             

DATE OF JUDGMENT: 12/07/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: JUDGMENT (Arising out of S.L.P. (Crl.) No. 68 of 2006)

ARIJIT PASAYAT, J.

Leave granted.

Can a lady be prosecuted for gang rape is the interesting  question involved in this appeal.  

Challenge in this appeal is to the order passed by a  learned Single Judge of the Madhya Pradesh High Court  holding that the charge framed against the appellant under  Sections 323 and 376(2)(g) of the Indian Penal Code, 1860 (in  short ’IPC’) is in order.

Background facts in a nutshell are as follows:

Complaint was lodged by the prosecutrix alleging that  she was returning by Utkal Express after attending a sports  meet. When she reached her destination at Sagar, accused  Bhanu Pratap Patel (husband of the accused appellant) met  her at the railway station and told her that her father has  asked him to pick her up from the railway station.  Since the  prosecutrix was suffering from fever, she accompanied  accused Bhanu Pratap Patel to his house.  He committed rape  on her.  When commission of rape was going on, his wife, the  present appellant reached there. The prosecutrix requested the  appellant to save her.  Instead of saving her, the appellant  slapped her, closed the door of the house and left place of  incident.  On the basis of the complaint lodged, investigation  was undertaken and charge-sheet was filed.  While accused  Bhanu Pratap Patel was charged for offences punishable  under Sections 323 and 376 IPC the appellant, as noted  above, was charged for commission of offences punishable  under Sections 323 and 376(2)(g) IPC.  The revision filed  before the High Court questioned legality of the charge framed  so far as the appellant is concerned, relatable to Section 376  (2)(g) IPC.  It was contended that a woman cannot be charged  for commission of offence of rape.  The High Court was of the  view that though a woman cannot commit rape, but if a  woman facilitates the act of rape, Explanation-I to Section  376(2) comes into operation and she can be prosecuted for  "gang rape".  

According to learned counsel for the appellant the High  Court has clearly missed the essence of Sections 375 and 376

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IPC. It was submitted that as the woman cannot commit rape,  she cannot certainly be convicted for commission of "gang  rape", and Explanation-I to Section 376(2) IPC has no  relevance and/or application.   

Per contra, learned counsel for the State supported the  order. Additionally, it was submitted that even if for the sake  of argument it is conceded that the appellant cannot be  prosecuted for commission of offence punishable under  Section 376(2)(g), she can certainly be prosecuted for  commission of the offence of abetment.    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.\027Against her will. Secondly.\027Without 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  description 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.

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(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

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).   

The residual question is whether she can be charged for  abetment. This is an aspect which has not been dealt with by  the Trial Court or the High Court.  If in law, it is permissible  and the facts warrant such a course to be adopted, it is for the  concerned court to act in accordance with law.   We express no

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opinion in that regard.

The appeal is allowed to the aforesaid extent.