Newindpress
New Delhi, Jul 14: Indian Penal Code says a woman cannot be charged with rape as she is not capable of. In that light, can a woman be charged with gangrape? That was the short question that the Supreme Court had to grapple with and decide in its judgment delivered on Wednesday.
In a case emanating from Madhya Pradesh, a complaint was lodged by the prosecuton that she was raped by Bhanu Prata Patel.
During the rape, Priya Patel, wife of the accused comes into the room. The victim requested her to save her. But, instead of saving her, Priya slaps her, closes the door of the house and leaves the place of incident.
Investigation was undertaken and a charge-sheet filed based on a complaint lodged in this regard. Bhanu Pratap was charged under Sections 323 and 376 of the IPC while his wife Priya was charged for commission of offences punishable under Sections 323 and 376 (2) (g) (gang rape).
When challenged, the High Court held that 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 Bench comprising Justice Arijit Pasayat and Justice S H Kapadia observed that 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" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action.
The sine qua non is that the act must be done in furtherance of the common intention to do a criminal act. As a woman cannot be said to have an intention to commit rape, she cannot be prosecuted under the charges slapped, the Bench ruled.
"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," the Bench further ruled.