This article is written by Shubham Kumar, a student of Dr. Ram Manohar Lohiya National Law University and an Assistant Editor of iPleaders Blog.

The question itself looks so obnoxious. We are living in a society wherein female security is one of the major concerns for everyone. As per NCRB (National Crime Records Bureau) annual report 2013 there has been 33,707 reported rape cases in India compared to 24,923 cases in the previous year. This trend suggests that there has been a significant increase in rape cases despite so much distress and furore created aftermath the ghastly Delhi Rape case. As per statistics, the conviction rate in rape cases is 27.1% (2013) which is abysmally low. The low conviction rate is due to various factors like victims relinquishing statements, delay in registering the FIR, faulty investigation, inconsistencies and contradictions in the statements by witness, insensitive trial and gruelling cross examination of victims. Everyone in this country asserts that female security is cardinal and law enforcing agencies should be more proactive in such cases.

What I’m going to focus on is not conventionally discussed and is generally considered illogical. A lot of people got offended when I raised this question which is usually politically incorrect especially in the atmosphere we are in right now, where crime against women is the main concern of everyone. But I would still emphasize upon this less discussed but very important and delicate issue because justice is the right of every individual regardless of their gender.

So, can a woman be charged for committing gang rape as contained under section 376(2)(g)[1]?

The issue, ‘whether a woman can commit rape’ is well settled by the non-ambiguous language of section 375 of IPC which expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape. But there is perplexity regarding the commission of “gang rape” by women under section 376(2)(g) IPC. Unlike section 375, section 376(2)(g) talks about “Persons” rather than “man”, which signify that the law-makers intended to keep Sec. 376(2)(g) gender-neutral.

Supreme Court was confronted with the same question, whether a women can be held guilty of Gang Rape in the case of Priya Patel vs. State of Madhya Pradesh(2006)[2], where the appellant Priya Patel was alleged to have committed “gang rape” on the prosecutrix.

I would try to answer the question based on the critical analysis of Priya Patel vs. State of Madhya Pradesh.

Factual Background

In this case, complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. Upon reaching her destination Sagar, she met accused Bhanu Pratap Patel (husband of the accused appellant) at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. During the commission of the rape, his wife, reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. Bhanu Pratap Patel was charged for offences punishable under Sections 323[3] and 376 IPC, the appellant, as noted above, was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC.

Judgment by the Court

The Court precisely held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape.

The court further ruled that a woman cannot have an intention to rape, as it is conceptually inconceivable and therefore, she can neither be held for rape, nor gang-rape. The court further held that the expression “in furtherance of their common intention” as appearing in the Explanation I to Section 376(2) IPC, relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. And therefore, a prosecution cannot be launched against a woman for gang rape[4].

Why Priya Patel is not a good precedent case

Recently, in case of State of Rajasthan vs. Hemraj[5] having facts similar to Priya Patel, the Division bench of SC followed the Judgment pronounced in case of Priya Patel and acquitted Smt. Kamla only because she is a woman.

The Supreme Court in Priya Patel case left many questions unearthed. The acquittal of appellant was prima facie wrong because of the following reasons:

1. The appellant slapped the prosecutrix, closed the door and left the place of incidence. This clearly suggests that she supported her husband’s act of raping the prosecutrix and is enough to determine the criminal intention possessed by Priya Patel.

In a similar case, State vs. Meena Devi[6],Meena Devi was charged under Section 342 IPC[7] and Section 376 read with Section 109 IPC[8]. The Sessions Judge, convicted Meena Devi under the aforementioned sections holding her guilty for abetting the offence 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 confine her in the room thus facilitated the abetment of commission of crime of rape.[9]

In case of State Government vs. Sheodayal[10], 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 IPC[11].

1. 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.
2. 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).
3. Consider a situation wherein there are 5 friends, one of them is amputated with both hands, decide to kill X. Four friends go inside the house of X and stab, while the fifth guy, amputated with both hands stands outside to raise alarm in case anyone comes inside the house. The question arises that whether a person amputated with both hands, cannot hold knife, can be charged for murder? As per Barendra Kumar Ghosh v. King Emperor[12] he can be charged because he shared the same common intention and hence he would be liable for same punishment despite his incapacity to murder by stabbing.

4. Positivist approach[13] 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 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.

5. Explanation 1 to Section 376(2)(g) is gender neutral, and is in pari materia with Section 34 of IPC[14], SC overlooked this point while deciding the case-

The landmark cases which beautifully interpret Section 34 IPC, are Barendra Kumar Ghosh v. King Emperor, and Mahbub Shah v. King Emperor[15]. 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[16].

Let us take up a hypothetical situation, wherein A approaches his friend B and tells him about his intentions of killing C. B initially objects to the idea of killing C but agrees to do so for friendships sake. But B tells him that he will only stand outside the room where A plans to kill C and his job would be confined to raising an alarm if police or other people are seen to be approaching that room. B makes it very clear that in no case he will participate in actual killing. As per plan A kills C when he is fast asleep in his room while B stood guard outside the room. As far as liability is concerned, by virtue of Section 34 IPC, both A and B would be equally liable for the murder of C and it would be immaterial if B participated in the actual killing or not. It is also immaterial if B specifically had an intention to kill C provided that the prosecution is able to prove that B had knowledge of A’s intentions of killing C and B joined A with this knowledge on A’s part[17].

Current Legal Status of Rape by a woman

Owing to very uncommon nature of this case, Priya Patel hasn’t affected the Indian Criminal Jurisprudence, but the said interpretation by the Judge in this case was contrary to the provisions of Gang rape. Section 375, exclusively absolves woman from Rape liability but on contrary section 376(2)(g) includes woman also. Though a woman can’t be charged for committing rape because of the obvious reason i.e. their incapacity to do so, but she can share the same common Intention and could be charged for commission of Gang Rape, because “They also serve who only stand and wait”. Priya Patel should be declared bad law, the sooner, the better, because of many critical error in the judgment and till the, Priya Patel should be treated as an aberration.

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 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.

[1] Subs. By Act 13 of 2013, sec. 9, for the section 375D(w.r.e.f 3-2-2013). Section 376D, before substitution by Act 13 of 2013, stood as under:

“Intercourse by any member of the management or the staff of a hospital with any woman in that hospital– Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.

Explanation.—The expression “hospital” shall have the same meaning as in Explanation 3 to sub-section (2) of section 376.”

[2] AIR 2006 SC 2639

[3] Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

[4] Priya Patel case, (2006) 6 SCC 263 : AIR 2006 SC 2639, 2641, 267, Para 9.

[5] (2009) 12 SCC 403

[6] 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] Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

[8] Section 109 provides for punishment for abetment and in those cases where offence has been committed pursuant to the abetment, abettor is liable for same punishment as the actual perpetrator of the offence.

[9] KA Pandey, ““They Also Serve Who Only Stand and Wait”: A Critique of Priya Patel v State of MP AIR 2006 SC 2639”, RMLNLU Law Review April 2010 Volume 2.

[10]1956 CrLJ 83 M.P

[11] Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

[12] AIR 1925 PC 1

[13]  For a positivist the law is something that is written in black and white.

[14] Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone

[15] (1945) 47 BOMLR 941

[16] KA Pandey, ““They Also Serve Who Only Stand and Wait”: A Critique of Priya Patel v State of MP AIR 2006 SC 2639”, RMLNLU Law Review April 2010 Volume 2.

[17] Ibid