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In
State Govt. V. Sheodayal
(1956 Cr LJ 83 M.P) M.P High court opined that modesty of a woman
can be outraged by another women u/s 354. But apex court recently
in
Priya Patel V. State Of M.P And Anr.
(JT 2006 (6) SC 303) held that it is inconceivable that women can
rape another woman. Actually in this case victim cried for help
when husband of appellant
was going to rape her. Appellant reached on the spot, instead of
helping the victim or prevent her husband from raping the women,
slapped the victim, bolt the door from outside and left the scene.
She was charged for committing gang rape u/s 376 (2) (g) of IPC
1860. Trial court as well as Madhya Pradesh high court maintained
the charge but supreme court, relaying upon biological facts,
construed statutory provision in favour of the woman and held that
a woman cannot be charged for gang
raping another women u/s 376 (2) (g) of IPC 1860. Section 376 (2)
(g) of IPC 1860 says:
"Whoever
commits gang rape shall be punished with rigorous imprisonment for
a term which shall not be less than ten year but which may be for
life and shall also be liable to fine."
Explanation 1
appended to this 376 (2) (g) defines gang rape. It tells that when
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.
Section 34 of IPC 1860 is also deal with common intention. Common
intention, which is given under S. 376 (2) (g) is same to which is
given under S.34. Apex court in this case also discussed S. 376
(2) (g) in line with S.34, that is "act in furtherance of common
intention". Now questions arise:
What was the need of S. 376 (2) (g), when S. 34 was already there?
What would be situation if S. 376 (2) (g) were not there?
Of-course the object of insertion of S. 376 (2) (g) was to inflict
harsher punishment on guilty of offence of gang rape owing to high
gravity of offence. If S. 376 (2) (g) were not there then even all
culprits of gang rape could be convicted under S 376 r/w S 34. An
analogy can be drawn from apex-courts interpretation that for
conviction under S. 376 (2) (g) or Section 34, every culprit must
be able to commit main act. But in
Barendra Kumar Ghosh v. King Emp.
(AIR 1925 PC 1) appellant was standing outside with pistol and
postmaster was shot dead by other accused. His defence that he was
standing outside near the door and had not shot at the postmaster
was not accepted by the court. The privy -council observed that
even if the appellant did nothing as standing outside the door, it
is to be remembered that in crimes as in other things they also
serve who only stand and wait.
Now imagine a
situation:
There are five persons, one of them is amputated with both the
hands, decide to kill a man. Four go inside the room and stab the
man and fifth person, amputated with both the hands stands outside
do nothing. Question arises whether person who is amputated with
both hands, cannot hold knife, can be charged for committing
murder. Off-course he can be charged in pursuant of
above-mentioned ruling of privy-council.
No doubt if apex court solely rely upon S. 376 (2) (g), it was
difficult to charge the appellant owing to definition of rape in
Section 375 but it is respectfully submitted that appellant can be
charge u/s 376(1) r/w Section 34.
Prosecution also pleaded that in spite of the fact appellant
cannot be charged under S. 376 (2) (g), but can be charged for
abetment. But apex court left question to be decided by trial
court. So now wait for trial court whether it would punish demons
of humanity.
Recently, amendment (2005) in code of criminal procedure bring
into force, which tells that if a woman is to be arrested, she can
be arrested only in presence of another woman police officer. And
today when parliament is contemplating to give effect to the
amendment in code of criminal procedure which provides trial of
sexual offence would be conducted by only woman judge then such a
ruling of apex court is a blow to womanhood.
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A Woman Can't Rape Woman
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The
author can be reached at:
vikaslegalindia@legalserviceindia.com /
