CAN A woman be prosecuted for ‘gang rape’. This debatable question of law arose for determination recently before the Supreme Court in an appeal filed by Priya Patel. But first, a look at the penal provisions for ‘rape’ and ‘gang rape’. Section 376(1) IPC prescribes a minimum sentence of seven years’ rigorous imprisonment for ‘rape’.
But where a ‘gang rape’ is committed, it is punishable under Section 376(2)(g) IPC with a more severe punishment of not less than ten years’ rigorous imprisonment.
What is ‘gang rape’? The answer is in Explanation 1 to Section 376(2)(g). It says, “Where a woman is ‘raped’ by one or more in a group of persons in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape.”
Now, the facts. A girl (the prosecutrix in this case) alleged that when she returned to Sagar by Utkal Express after attending a sports meet, a person, named Bhanu Pratap Patel, met her at the railway station. He told her that he had been asked by her father to pick her up.
Since the prosecutrix was down with fever, she accompanied him. Instead, Patel took her to his own house and subjected her to rape.
While the commission of the offence was on, his wife, Priya Patel reached there. The prosecutrix pleaded with Priya to save her from her hubsand. But instead, Priya slapped her, closed the door of the house and left the place of incident.
Bhanu Pratap Patel was charged by the police under Section 376(1) IPC for having committed ‘rape’. His wife, Priya, was charged with the offence of ‘gang rape’ under Section 376 (2)(g), IPC, read with Explanation 1 aforesaid.
Priya pleaded that she could not be prosecuted for ‘gang rape’, but the trial court and the High Court both turned down her plea.
Priya Patel appealed to the Supreme Court, and the question that were debated upon before the apex court was: could Priya be accused of committing ‘gang rape’ within the meaning of Section 376(2), Explanation 1; and if not, could she not be prosecuted at least under Section 34 IPC for ‘abetment’ of rape, because she did nothing by way of responding to the prosecutrix’s entreaties for saving her from the act of rape, but instead, slapped her, closed the door and left the place?
The apex court settled the first question in favour of Priya Patel (2006 CCSC 987). It referred to Section 375 IPC, which defines ‘rape’.
This Section makes it clear that rape can be committed only by a ‘man’, said Justice Arijit Pasayat, writing for the court.
Then, said the apex court, Explanation 1 to Section 376(2)(g), pertaining to gang rape, lays down 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.
That cannot make a ‘woman’ guilty of committing gang rape, ruled the apex court.
In other words, basically, it is not a ‘woman’ but only a ‘man’ who, within the defining Section 375 IPC itself, is one who can be hauled up for committing ‘rape’. So, the offence of ‘rape’ or, for that matter, ‘gang rape’ is attributable only to a ‘man” and not to a ‘woman’.
Now, in view of her offensive conduct, facilitating continuance of commission of rape by her husband, could Priya Patel be tried under Section 34 IPC for abetment of the offence? “This is an aspect which has not been dealt by either the trial court or the High Court,” said the Supreme Court.
If in law it is permissible and the facts warrant prosecution of Priya Patel for abetment of rape, it is for the concerned court to act in accordance with law, it said. “We express no opinion in that regard,” it added.
In the end, Priya Patel is off the hook. No more ordeal of facing trial for ‘gang rape’.