The Supreme Court has ruled that a woman cannot be prosecuted for rape.
Thursday’s ruling, by a bench of justices Arijit Pasayat and SH Kapadia, reversed an order of the Madhya Pradesh High Court on the point.
The HC had upheld the framing of charges against Priya Patel of Sagar under sections 376(2)(g) (gang rape) and 323 (voluntarily causing hurt) of the IPC.
Priya’s husband, Bhanu Pratap Patel, had allegedly picked up the victim from Sagar on her reaching there by Utkal Express. Bhanu told the victim her father had asked him to pick her up.
The victim went along with Bhanu to his house where, the prosecution alleged, he raped her in his wife’s presence.
When the victim asked Priya for help, she allegedly slapped her, closed the door and left.
While Priya was charged under sections 323 and 376(2)(g), Bhanu was chargesheeted under sections 323 (voluntarily causing hurt) and 376 (rape).
She challenged the framing of charges against her in the High Court contending that a woman cannot be charged with the offence of rape.
The Madhya Pradesh High Court was of the view that though a woman cannot commit rape, if she facilitated the act of rape, Explanation-I to Section 376(2) would come into operation and she could be prosecuted for "gang rape".
According to Explanation-I to Section 376(2) "where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each one of persons shall be deemed to have committed gang rape within the meaning of this sub-section." However, Priya's counsel argued that the high court missed the essence of Section 375 which defines rape as an offence of which penetration was a necessary element.
As a woman cannot commit "rape", she cannot certainly be convicted of commission of "gang rape" and Explanation-I to Section 376(2) IPC has no application, he submitted.
The apex court said, "A bare reading of Section 375 IPC makes the position clear that rape can be committed only by a man. The Section itself provides as to when a man can be said to have committed rape.
"The Explanation to Section 376(2) only clarifies that when a woman is raped by one or more by 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 rape. This is conceptually inconceivable...," the apex court said. The bench said if it was permissible under law and the facts warranted, she could be charged with abetting rape.
However, the court left it to the trial court to decide if in the instant case the appellant could be prosecuted for abetment or not.