Can a lady be prosecuted for gang rape is the interesting question involved in this appeal.
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. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC, the appellant was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC.
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”.
A bare reading of Section 375 makes the position clear that rape can be committed only by a man. 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 is 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 appellant cannot be prosecuted for 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.