A Woman Facilitating Act Of Rape With A Group Of People May Be Prosecuted For 'Gang Rape' U/S 376D IPC: Allahabad High Court

The Allahabad High Court has observed that a woman can not commit the offence of rape but if she facilitates the act of rape with a group of people then she may be prosecuted for 'Gang Rape' under Section 376D Of IPC in view of the amended provisions.

Perusing the provisions of Section 375 and 376 IPC (as amended by Act 13 of 2013 of the Indian Penal Code, 1860), the bench of Justice Shekhar Kumar Yadav rejected the argument that a woman cannot be prosecuted for the alleged commission of the offence of gang rape.

With this, the Court also rejected a Section 482 CrPC plea moved by one Suneeta Pandey who has been summoned by Additional District and Sessions Judge- Ist, Siddharth Nagar to face the trial u/s 376-D, 212 IPC in connection with the alleged rape case of a 15-year-old girl.

Essentially, as per the facts of the case, the incident took place in June 2015 and the FIR was lodged by the informant against unknown persons in July 2015 under sections 363 and 366 I.P.C. alleging therein that someone has enticed away the daughter of the informant aged about 15 years and took her with him.

In her Section 164 CrPC statement, the victim stated that the applicant was involved in the alleged incident, however, she was not named in the charge sheet. Thereafter, opposite party no.2 filed an application under Section 319 Cr.P.C. for summoning the applicant and the court below allowed the said plea.

Pursuant to this, the applicant moved the High Court seeking to quash the summoning order as well as to stay the further proceedings in the case on the ground that being a lady, no offence under Section 376-D I.P.C. is made out against the applicant and that she has been wrongly summoned by the trial court.

Taking into account the facts of the case, the Court, at the outset noted that the argument that a lady cannot be prosecuted for gang rape is not correct as per the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the Indian Penal Code, 1860

The Court observed that though it is clear by the non-ambiguous language of section 375 of IPC that a woman can't commit rape as the section specifically states that the act of rape can only be done by a ‘man’ and not by “any woman”, however, the Court added, the same is not the case with Section 376D (Gang Rape).

"The term 'person' used in the Section should not be construed in a narrow sense. Section 11 I.P.C. defines ‘person’ as it includes any company or association or body of persons whether incorporated or not. The word 'person' is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as 'an individual human being' or 'a man, woman, or child'; and, secondly, as 'the living body of a human being'. As such, a woman can not commit the offense of rape but if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape in view of the amended provisions. Unlike man, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of person," the Court remarked,

In its order, the Court also explained the scope of 'Gang Rape' by observing that in order to establish an offence under Section 376-D IPC, the prosecution has to adduce evidence to indicate that one or more persons had acted in concert and in such an event, if rape had been committed by even one, all the accused will be guilty irrespective of the fact that victim had been raped by one or more of them.

In other words, the Court clarified that this provision embodies a principle of joint liability and the essence of that liability is the existence of common intention that common intention presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action.

With this, the Court dismissed the plea.

Appearances

Counsel for Applicant: Ravindra Prakash Srivastava

Counsel for Opposite Party: G.A.

Case title - Suneeta Pandey vs. State Of U.P. And Another [APPLICATION U/S 482 No. - 39234 of 2022]

Case Citation: 2023 LiveLaw (AB) 57

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