The issue, ‘whether a woman can commit rape’ is well settled by the clear language of section 375 of Indian penal code. The section itself starts with, “a man is said to commit rape”. Thus a woman cannot commit rape. But there seems a confusion regarding the commission of “gang rape” by women under section 376(2)(g) IPC. The question of “gang rape” by women came before the Supreme Court for consideration in the case of Priya Patel Vs State of Madhya Pradesh (2006), where the appellant Priya Patel was alleged to have committed “gang rape” on the prosecutrix.
The prosecutrix of this case returned by ‘Utkal express’ and reached her destination at ‘Sagar’ after attending a sports meet. By that time Bhanu Pratap Patel (husband of accused appellant) reached the railway station and picked her up from the station saying that her father has asked him to pick her up. The prosecutrix was suffering from fever and hence accompanied Bhanu Pratap to his house. After reaching at his house, Bhanu Pratap committed rape on the prosecutrix and by that time his wife Priya Patel (Bhanu Pratap’s wife) reached the spot. The prosecutrix requested Priya Patel to save her but instead of saving the prosecutrix she slapped her and left the spot. The prosecutrix then lodged a complaint and on the basis of that complaint Bhanu Pratap was charged under sections 323 and 376 of IPC, and Priya Patel was charged under sections 323 and 376(2)(g) of IPC. Against the order of the trial court Priya Patel filed a revision petition before the High Court challenging the legality of the charges framed against her. The High Court asserted the view that, a women cannot commit rape but when a women facilitates the commission of rape, she can be prosecuted for “gang rape” under section 376(2)(g) IPC. Aggrieved by the decision of the High Court, Priya Patel preferred an appeal before the Supreme Court of India.
The main issue before the court in this case was – ‘whether a woman can be prosecuted for “gang rape”?
The hon’ble Supreme Court in this case observed that, section 375 makes it clear that only man can commit rape. Section 376(2) only provides for some categories of serious cases of rape and accordingly prescribes severe punishments for such case. The explanation to section 376(2)(g) further makes it clear that when one or more in a group of persons acting in furtherance of common intention rape a women then each person of the group shall be deemed to have committed “gang rape”.
As per section 34 IPC: “Acts done by several persons in furtherance of common intention: -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 were done by him alone”.
Common Intention under section 34 requires a prearranged plan and acting in concert pursuant to the plan. The Criminal act must be done in concert pursuant to the pre-arranged plan. Common Intention does not mean that all the persons should have similar intention. To constitute common intention, it is necessary that the intention of each one of them be known to the rest of them and shared by them.
Thus the section can be invoked when the alleged act is done in furtherance of common intention to do a criminal act. The common intention as referred to in section 376(2) relates to the intention to commit rape. But a woman cannot commit rape and hence cannot be prosecuted for “gang rape”.
The court however did not express any opinion with regard to abetment, as the issue has not been dealt with by the trial court or the High Court.
It was thus held that a women cannot be said to have an intention to commit rape, and the appellant (Priya Patel) therefore cannot be prosecuted under section 376(2) (g).
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