SUPREME COURT OF INDIA
Priya Patel
Vs
State of Madhya Pradesh and Another
Appeal (Crl.) 754 of 2006(Arising out of S.L.P. (Crl.) No. 68 of 2006)
(Arijit Pasayat and S. H. Kapadia, JJ)
12.07.2006
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 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. 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 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.
(2) Whoever, --
(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.
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 opinion
in that regard.
The appeal is allowed to the aforesaid extent.