The facts of the present matter were that the prosecutrix 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 was charged for commission of offences punishable under Sections 323 and 376(2)(g) of 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 may not be charged for commission of offence of rape. The High Court was of the view that though a woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she may be prosecuted for gang rape.
The Supreme Court, apparently, had a different view. The present appeal was allowed. The apex court held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape.
The rule is based on the principle of common intention as provided in section 34 of the IPC. Common Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common intention which in such a case may be common intention to rape. Since such intention may not exist with a woman, as given in the definition, a woman may not be held liable for gang rape as well.
A contention was raised by the counsel of the state that the woman may be held liable for Abetment as under section 108 of the IPC. The court on this said that such contention should have been raised in the trial court or in High Court, but it may not be done here.
A person when instigates a crime or assists in its pursuance may be held liable for Abetment of crime. Even in the present matter if it may have been taken up, then appellant may have been convicted on the charge of abetment of rape but then a new issue may have come up. This may have lead to a discrimination on basis of sex with a man is deemed to have common intention and therefore must be held liable for rape but on the other hand a woman, doing the same act as the man was, might be liable for abetting the crime. This being on the grounds of the fact that it is conceptually inconceivable, as in accordance with the meaning of the word rape, as given in Section 375 of the IPC.
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