S.109 IPC | Both Man & Woman Can Be Held Liable For Abetment To Rape If Act Is Committed In Consequence Of Abetment: Madhya Pradesh HC

In doing so the court underscored that abetment is separate and distinct offence than rape and if the abetted act is committed in consequence of the abetment, then the person i.e. man or woman abetting such crime is liable to be punished under Section 109 of IPC. For context, IPC Section 109 provides for the Punishment of abetment if the act abetted is committed in consequence and where no express provision is there for its punishment.

Referring to Supreme Court's decision in Omprakash Vs. State of Haryana (2015), Justice Pramod Kumar Agrawal observed, “It is clear that a woman though cannot commit rape, but can still be held liable for abetment under Section 109 of IPC. “abetment is separate and distinct offence than rape” and if the act abetted is committed in consequences of the abetment, then the person i.e. man or woman abetting such crime is liable to be punished under Section 109 of IPC. Thus, woman and man both can definitely be held liable for abetment to rape under Section 109 of IPC and can be punished accordingly". 

As per the factual matrix of the case, the prosecutrix had lodged a report alleging that her neighbour (co-accused) who she was acquainted with had proposed marriage to her to which she had agreed.

After some time, she went to his house to give her consent regarding marriage to the man's mother (applicant No.2) and his brother (applicant No.1). However the mother and brother forcibly sent her with co-accused and closed the door of room where the co-accused made physical relation with her. Thereafter, she and the got engaged and the co-accused assured her for marriage and established physical relation with her.

On the next day, prosecutrix went to applicants' house and informed them regarding the said incident to which the applicants remarked that it was common to make physical relations before marriage these days and they again sent the co-accused and prosecutrix in a room and closed the door where co-accused again made physical relation with prosecutrix.

Thereafter, when prosecutrix's mother died of cancer, applicants denied to get co-accused married to the prosecutrix. Hence, prosecutrix lodged a report against the applicants and co-accused person under Sections 376 (Punishment for Rape), 376(2)(n) (Rape repeatedly on same woman), 190 (Threat of injury to induce person to refrain from applying for protection to public servant), 506 (Punishment for Criminal Intimidation) and 34 (Common Intention) of IPC.

After committal of case, an application was filed under Section 227 of CrPC by applicants for discharging them from the case but the same was dismissed by the trial court, against which they approached the high court. 

The Counsel for applicants submitted that in the complaint filed by the prosecutrix, the names of the applicants was not mentioned. Further, it was submitted that the co-accused and the prosecutrix were in a love relationship and they got engaged with the consent of both the families, therefore, no offence under Section 376 of IPC is made out against them. It was also contended that the name of the applicants was only mentioned in the statements of prosecutrix recorded under Section 161 and 164 of CrPC., therefore it appears that all the allegations made against the applicants are afterthought.

On the contrary, the Counsel for State submitted that at the stage of framing of charges, only prima facie case is to be seen and the material on record disclosed the offence for which charge-sheet has been filed against the accused persons. It was further submitted that there were specific allegations against the applicants regarding abetment of rape thus, the Trial Court had correctly passed the order.

After hearing the parties, the Court referred to Section 376 of IPC and said that it clearly denotes that only a man can commit the offence of rape and there is no scope to incorporate commission of rape by woman under Section 376.

Thereafter, the Court referred to the judgement of Supreme Court in Omprakash Vs. State of Haryana (2015) and concluded that a woman though cannot commit rape, but can still be held liable for abetment under Section 109 of IPC.

On perusal of statements of the prosecutrix recorded under Section 161 and 164 of Cr.P.C, the Court noted that it prima facie establishes that an offence is made out against the applicants. Thus, the Court noting the specific allegations against the applicants, held that the Trial Court had correctly passed the order.

Thus, the Court directed the Trial Court to frame the charge under Section 376 r/w 109 of IPC against the applicants instead of Section 376 r/w 34 of IPC.

Case Title: Prashant Gupta And Others Versus The State Of Madhya Pradesh And Others, Criminal Revision No. 4796 Of 2023

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