TAMIL NADU NATIONAL LAW UNIVERSITY, TIRUCHIRAPPALLI

Submitted for the internal assessment for the course of

Subject: Law of Crimes - I

Course Faculty: Dr. N. S. Soman

Submitted By: Ms. Sonali Priyadarsani

REG NO. BA0190048

JUDGEMENT DELIVERED ON- 12 July, 2006

BENCH- Arijit Pasayat, S.H. Kapadia

FACTUAL BACKGROUND

In this case, the prosecutrix filed a complaint claiming that she had returned by Utkal Express
after attending a sports meeting. When she reached her destination, she met accused Bhanu
Pratap Patel (husband of the accused appellant) at the railway station who told her that her
father had asked him to pick her up from the railway station. She accompanied accused
Bhanu Pratap Patel to his house where he committed rape against her. His wife, during the
commission of the rape, arrived there. The prosecutrix begged the appellant to save her from
her husband. The appellant, out of rage, slapped her instead of saving her from being raped,
closed the door of the house and left the scene of the incident.

An inquiry was conducted on the basis of the complaint lodged, and a charge-sheet was filed.
While Bhanu Pratap Patel was charged with crimes punishable under Sections 323 and 376 of
the IPC, the appellant was charged with offences punishable under Sections 323 and 376(2)
(g) of the IPC. The revision lodged before the High Court brought into question the
lawfulness of the claim, framed as far as the appellant is concerned, relating to point of
Section 376(2)(g) of IPC.

It was argued that a woman could not be charged with committing a rape. The High Court
was of the opinion that while a woman may not commit rape but if the woman facilitates the
act of rape, then the explanation to Section 376(2) falls into effect which provides that,
“whosoever commits gang rape shall be punished.”

ISSUES RAISED

 Whether a woman can be prosecuted for a gang rape under Section 376(2)(g) of IPC.
 Can the woman, who facilitates rape, can be charged for Abetment under Section 108 of
the IPC.
JUDGEMENT

The Supreme Court held that the unambiguous language of section 375 1 of the IPC
specifically mentions that only a 'man' and not 'any person' can commit the act of rape. A
woman is therefore unable to commit rape. The court further held that, as it is conceptually
inconceivable, a woman cannot have an intention to rape, and hence, she cannot be held
liable for rape or gang rape. The court further held that the word "to encourage their common
purpose," as set out in Explanation I of Section 376(2) 2 of the IPC, applies to the intention to
commit rape. The explanation for Section 376(2) merely states that, when one or more
persons act in support of their common purpose to rape a woman, each member of the group
must be regarded as having committed gang rape. It cannot be assumed that a woman has the
intention of committing rape. And so a case against a woman for gang rape will not be
initiated.

The State's counsel raised a contention that the woman could be found liable for Abetment in
accordance with section 1083 of the IPC. On this point, the court claimed that such an
argument may have been posed in the trial court or in the High Court, but it may not have
been made here. Whether she can be sued with abetment is the remaining issue. This is an
aspect that the Trial Court or the High Court have not dealt with. If it is permissible by
statute, and the facts justify the implementation of such a path, it is for the court concerned to
proceed in compliance with the law.

RULE APPLIED

A bare reading of Section 375 makes the position clear that only a man can commit rape. The
section itself indicates as to when it can be held that a man has committed rape. Section
376(2) provides more stringent punishment to some types of serious cases of rape as
enumerated therein. The "gang rape" refers to one of them. The wording of sub-section(2)(g)
specifies that "whoever commits gang rape" shall be prosecuted, etc. The clarification merely
reiterates that when a woman is raped by one or more persons in a group of persons acting in
support of their common intention, under this sub-section (2) each such person shall be
deemed to have committed gang rape. That can't make a woman suspect of having committed
rape. This is conceptually inconceivable. The justification merely states that when one or
more individuals act in support of their shared purpose to rape a woman, each person in the
1
The Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).
2
The Indian Penal Code, 1860, § 376(2), No. 45, Acts of Parliament, 1860 (India).
3
The Indian Penal Code, 1860, § 108, No. 45, Acts of Parliament, 1860 (India).
group is deemed to have committed gang rape. Through the operation of the deeming clause,
even if only one member of the group has committed an offence of rape in favour of the
common intention, a person who has not actually committed rape is deemed to have
committed rape.

'Common intention' is dealt with in Section 34 of the IPC which provides that when a
criminal act is committed by a number of persons in order to advance the common intention
of all persons, each of those persons is responsible for that act in the same way as if it were
committed by him alone. 'Common intention' denotes collective action and necessarily
postulates a pre-arranged strategy, a prior meeting of minds and an element of engagement in
action. Acts can vary and differ in character, but the same common intention, which is
different from a certain intention or similar intention, must be carried out. A sine qua non for
the enforcement of Section 344 of the IPC to the extent that the act must be carried out in
order to encourage the common intention to commit a criminal act. The term "in
furtherance their common intention," as set out in the explanation of Section 376(2), relates
to the intention to commit rape. It cannot be assumed that a woman has the intention of
committing rape. Accordingly, the appellant's counsel is justified in arguing that the appellant
cannot be tried for the suspected execution of an offence punishable pursuant to Section
376(2)(g).

ANALYSIS & INTERPRETATION

In the Priya Patel case , the Supreme Court left many questions unresolved. For the following
reasons, the appellant's acquittal was prima facie erroneous:

 The appellant slapped the prosecutor, closed the door and left the location of the incident.
This clearly indicates that she supported the abuse of the prosecutrix caused by her own
husband and is sufficient to determine the criminal intent of Priya Patel.
 The SC adhered to the bare provision of law and didn’t refer to any case law or any legal
or juristic writing, which is very unusual considering the gravity of the case.
 The reasoning by the Judges in the said case is fallacious, as it assumes the ‘conceptual
inconceivability’ of a woman having an intention to commit rape (a woman-on-woman
rape).
 Positivist approach while interpreting the said law- Criminal jurisprudence has evolved in
times owing to the needs and requirement of the society. The Judges shouldn’t just
4
The Indian Penal Code, 1860, § 34, No. 45, Acts of Parliament, 1860 (India).
 mechanically apply the law without proper analysis, if some evident error has been
committed by the draftsman, then the judges should adhere to the spirit of the law and
pronounce the judgment accordingly.
 Explanation 1 to Section 376(2)(g) is gender neutral, and is in pari materia with Section
34 of IPC, SC overlooked this point while deciding the case.

In a similar case, under Section 342 IPC5, State vs. Meena Devi6, Meena Devi was charged
and Section 376 was read under Section 109 IPC7. Under the aforementioned sections, the
Sessions Judge convicted Meena Devi and convicted her of abetting the crime of rape. The
learned Judge held that by bolting the door from outside the accused did not allow the
prosecutrix to leave the room and confined her in the room, thus facilitated the abetment of
commission of crime of rape. In case of State Government vs. Sheodayal8, in this case the
Madhya Pradesh High Court opined that the modesty of a woman can be outraged by another
woman under section 354 of IPC9. Some of the shortcomings of the Priya Patel case are listed
as follows:

The landmark cases which beautifully interpret Section 34 IPC, are Barendra Kumar Ghosh
v. King Emperor10, and Mahbub Shah v. King Emperor 11. Without going into the details of
these two cases, it must be submitted that it is well settled since long that even though
participation in action is required for making one constructively liable for the criminal acts of
other, this requirement is not limited to participation in actual criminal act in as much as it
would suffice for the purposes of Section 34 IPC that two or more persons joined together in
a criminal enterprise with a common intention to bring out a result which is punishable by
law. Thus, even physical incapacity is in no way an impediment to fixing liability with the aid
of Section 34 IPC, if the requirements of the provision are met with.

CONCLUSION

The criminal jurisprudence evolves according to the notions and needs of dynamic society.
The legal instruments defining crime and mentioning its elements must be read in the societal

5
The Indian Penal Code, 1860, § 342, No. 45, Acts of Parliament, 1860 (India).
6
State vs. Meena Devi, Sessions Case No. 87 of 2006, decided by V.K Bansal, Addl. Sessions Judge, New
Delhi, on 5-12-2007. Priya Patel was decided on 12-7-2006.
7
The Indian Penal Code, 1860, § 109, No. 45, Acts of Parliament, 1860 (India).
8
State Government vs. Sheodayal, 1956 CrLJ 83 M.P.
9
The Indian Penal Code, 1860, § 354, No. 45, Acts of Parliament, 1860 (India).
10
Barendra Kumar Ghosh v. King Emperor, AIR 1925 PC 1.
11
State Government vs. Sheodayal, (1945) 47 BOMLR 941.
context in which they are to be applied. Everyone would agree to it that crimes against
women are very high in our country but we tend to forget that the female criminality is also at
its epitome. The current social reality should be accepted and the age old notion about female
criminality should be given up. The legislature should make laws gender-neutral because as
seen in Priya Patel and aforementioned cases, female offenders got away with their guilt only
because of the Gender Biased laws in IPC. The judiciary on the other hand shouldn’t just fold
their hand and mechanically apply the law, without dwelling upon the spirit of the legislation.
The current rape law has undergone a significant amendment, whereby the ambit of Rape law
is widened but the gender-biasedness is still prevalent in the existing law. Section 375 and
376 should be made gender neutral in strict sense, only then it would suffice the objective
intended by the law makers. The sooner, the better and till then, Priya Patel should be treated
as an aberration.