Holding

A woman cannot be prosecuted for gang rape under Section 376(2)(g) of the IPC because rape can only be committed by a man.

Summary

The appellant, Priya Patel, was charged under IPC sections 323 and 376(2)(g) for allegedly facilitating her husband’s rape of a woman. The High Court upheld the charge, holding that Explanation I to Section 376(2) makes a woman liable for ‘gang rape’ if she assists the act. On appeal, the Supreme Court examined the language of Sections 375 and 376(2)(g) and concluded that rape, as defined in Section 375, can be committed only by a man, and the explanation merely deems participants in a group as having committed gang rape, not a woman who cannot have the requisite intention. Consequently, the Court held that a woman cannot be prosecuted under Section 376(2)(g). The Court left open the question of abetment, stating it was for the trial court to consider, and allowed the appeal, quashing the charge under 376(2)(g).

Issues considered

Whether a woman can be prosecuted under Section 376(2)(g) IPC for gang rape.
Whether the appellant can be charged with abetment of rape under the IPC.

Legislation cited

Indian Penal Code, 1860s. 323, s. 34, s. 375, s. 376(1), s. 376(2)(g), s. Explanation 1 to 376(2)

Subjects

gang rapeabetmentIPCSection 376(2)(g)gendercriminal lawcommon intentionrape definition

Judgment

A PRIYA PATEL
v
STATE OF M.P. AND ANR.

JULY 12. 2006

B [ARIJIT PASA YAT AND S.H. KAPADIA, JJ.)

Penal Code, 1860:

ss. 375 and 376(2){g), Explanation !-'Gang rape'-A woman charged
C u/s 376(2)(g)-On the allegation of facilitating her husband in commission
of offence of rape of prosecwrix-Held, s.375 makes it clear that rape can
be committed on~v by a man-The e>pression "in furtherance of their common
intention" as appearing in Explanation I to s.376(2) relates to intention to
commit rape-A woman cannot be said to have an intention to commit rape
D and, therefore, cannot be prosecuted u/s 376(2){g)-lt is for the court
concerned to consider l1'hether such a woman can be charged for abetment,
if in /alt' it is permissible and the facts warrant such a course to be adopted
On the basis of a complaint lodged by the prosecutrix, husband of the
appellant was charged for offences punishable under ss.323 and 376 IPC and
E the appellant was char:-;ed under ss.323 and 376(2)(g) IPC. The allegation
against her was that while her husband was ravishing the prosecutrix, she
instead of saving her, slapped her, closed the door of the house and left the
place of incident. In the revision filed by the appellant it was argued before
the High Court that a woman could not be charged for commission of offence
of rape. The High Court dismissed the revision holding that if a woman
F facilitates the act of rape, Explanation I to s. 376(2) would come into operation
and she could be prosecuted for 'gang rape'. Aggrieved, the accused woman
filed the present appeal.

Allowing the appeal, the Court

G HELD: I.I. Section 375 IPC shows 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) IPC 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
If 456 <
PRIYAPATELv. STATEOFM.P. [PASAYAT,J.] 457
"whoever commits 'gang rape" shall be punished etc. Explanation I thereto A
only clarifies that when a woman is raped by one or more in a group of persons
acting in furtherance uf their common intention each such person shall be
deemed to have committed 'gang rape'. That cannot make a woman guilty of
committing rape. This is conceptually inconceivable. The expression "in
furtherance of their common intention" as appearing in the Explanation relates B
to intention to commit rape. A woman cannot be said to have an intention to
commit rape. Therefore, the appellant cannot be prosecuted for alleged
commission of the offence punishable under Section 376(2)(g).
(460-C-H; 461-A]

2. The residual question is whether the appellant can be charged for C
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 court concerned to act in accordance with law.
(461-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 754 of D
2006.

From the Judgment and Order dated 4.10.2005 of the High Court of
Judicature at Jabalpur, Madhya Pradesh in Criminal Revision No. 1306/2005.

.- Rachna Gupta and Dr. Indra Pratap Singh for the Appellant. E
C.D. Singh, Minakshi Sharma, Kiran Suvama and Dhrupad Kashyap for
the Respodents.

The Judgment of the Court was delivered by
F
ARIJIT PASA YAT, 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 G
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:
H
458 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A 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
B 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
C 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) !PC. 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) !PC. It was contended
that a woman cannot be charged for commission of offence of rape. The High
D 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 t~.e appellant the High Court has
E clearly missed the essence of Sections 375 and 376 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.
F 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
G 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
H falling under any of the six following descriptions:-
PRIYAPATELv. STATEOFM.P.[PASAYAT,J.] 459
First-Against her will. A
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.
B
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, C
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 D
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 E
not being under fifteen years of age, is not rape.]

376. Punishment for rape

(I) Whoever, except in the cases provided for by sub-section (I),
commits rape shall be punished with imprisonment of either description p
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: G
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,- H
460 SUPREM~ COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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:
B
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 1.-Where a woman is raped by one or more in a group
c 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.

xx xx xx xx
D 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 111an 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(1)(g) provides
E 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
F 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
G with in Section 34 !PC 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
H actuated by the same common intention, which is different from same intention
PRIYAPATELv. STATEOFM.P. [PASAYAT,J.] 461
or similar intention. The sine qua non for bringing in application of Section A
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 B
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 C
adopted, it is for the concerned court to act in accordance with law. We
express no opinion in that regard.

The appeal is allowed to the aforesaid extent.

RP. Appeal allowed.