This article is written by Srishti Yadav, student of Amity Law School, NOIDA.

Introduction

Rape is one of the most terrifying criminal activities. It is such a traumatic activity that it affects the person adversely at psychological and emotional level. It has its origin in the Latin word, ‘Rapio’ meaning to take away. Therefore, literally, rape could mean to snatch something from someone by the means of force. The article throws light over different over different aspects of rape in India, Especially concerning the question as to whether a woman could be charged for gang rape and its analysis.

Definition of Rape

Rape refers to an unlawful sexual activity which involves sexual intercourse against the will of victim, either by force or threat of force or against a person who is incapable of giving consent because of reasons such as mental illness, intoxication, deception or unconsciousness. In many countries, the crime of rape is a categorization of sexual assault. Earlier, it was considered to be caused by an overpowering sexual desire but now it seems to be a inveterate assertion of power over the victim. 

Legal provisions of IPC- defining the offence and punishment

Section 375 of the IPC lists down the conditions which lead to the commission of rape at the time of sexual intercourse between a man and woman. 

As per the Section, the act of penetration is sufficient enough to be treated as sexual intercourse, and therefore rape. The Supreme Court in the case of Sakshi v. Union of India, reiterated the definition of rape and held that only heterosexual intercourse i.e. vaginal and penial penetration be considered as rape. Giving the reason, the court held that, though there are many forms of sexual abuse which are heinous in nature, but every sexual offence cannot be considered as rape.

As per Section 376, the punishment of rape is for minimum 10 years and maximum imprisonment for life (which shall be construed as imprisonment for remaining life of that person till he dies a natural death) plus fine, is for the following g list of personsLeaving certain aggravated situations, the punishment for the rest of cases shall be minimum seven years and maximum punishment for life, plus fine. Section 375 was amended by the Criminal Law Amendment Act, 2013 or the Nirbhaya Act. For the purpose of removing ambiguity in the law before and provide strict punishment in rarest cases of sexual violence, the definition provided in the act such as penetration of penis into:

• Vagina
• Urethra
• Anus 
• Mouth
• Or any object or any part of the body

To any extent into the body parts of such woman (or making someone else do so), constitutes an offence of sexual offence.

Can a woman be prosecuted for the offence of gang rape?

The issue as to,

‘Whether the commission of rape could be done by a woman?’ becomes quite clear looking at the language of article 375 which expressly mentions that the act of rape could be committed only by a man and not ‘any person’. But as far as the commission of gang rape is concerned, there is ambiguity as to whether it could be committed by woman. Section 376(2)(g) mentions ‘persons’ rather than man which means that it was the vision of lawmakers to keep this Section gender-neutral. The Court was encountered with this question in the case of Priya Patel v. State of M.P. 

In this case, there was a complaint lodged by prosecutrix alleging that while she was returning by an express train after attending a sports meet. When she reached the destination, she met the accused (Bhanu Pratap Patel) and told her that he was asked by her father to receive her. Since the girl had fever, she accompanied Bhanu Pratap to his house where he committed rape on her.

During that time, the wife of the accused came there. The prosecutrix pleaded in front of her and asked her to save her, but instead she slapped her, closed the door of the house and left the place. There were charges levied against Bhanu Pratap for the offences punishable under Sections 323 and 376, IPC; and the appellant was charged under Sections 323 and 376(2) (g) IPC. The Court held that a woman cannot commit rape as it is conceptually inconceivable that she had an intention to rape. Therefore, she can’t be held for both- rape or gang rape. The court further laid down that the expression “in furtherance of common intention” which appears in explanation 1 of Section 376(2) IPC is construed as the intention to commit rape. Therefore, a prosecution could not be started against a woman for commission of rape. 

Analysis

The case of State of Rajasthan v. Hemraj, too had similar facts, as that of Priya Patel. The same judgment was given here as well and the appellant was acquitted just because she is a woman. The Supreme Court, in this case, left many questions unanswered. The following reasons could be cited for the prima facie wrong nature of the acquittal of the appellant:

1. The prosecutrix was slapped by the appellant; afterwards she shut the door and left the place. This clearly indicates that she was supporting her husband’s act of rape and thereby, is sufficient enough to establish criminal intention on part of Priya Patel.
2. The reasoning given by the judges is quite ‘fallacious’ in nature as it assumes that it is conceptually inconceivable on the part of a woman to have an intention to commit rape.
3. The Supreme Court just adhered to the bare provision of law and no referral to any case law or any legal or juristic writing was made, which is quite atypical considering the nature and gravity of the case.
4. According to the Positivist approach, criminal jurisprudence has evolved as per the needs and requirements of the society. It is accepted on the part of judges that they don’t just mechanically apply the law without undertaking proper analysis. They must adhere of law and give the judgment accordingly. 
5. Explanation 1 attached to Section 376(2)(g) is gender-neutral is in Pari Materia with Section 34 of IPC which means that they shall be construed together. From cases regarding the interpretation of Section 34 IPC such as Mahbub Shah v. King Emperor, it is well-settled that participation in the actual criminal act is not required to suffice the purpose of Section 34.

Because of its uncommon nature, the case didn’t have much effect over the criminal jurisprudence, but anyhow, the interpretation made by the judges was contrary to the gang rape provision. Although it makes sense that women can’t be charged for commission of rape because of the obvious reason in their incapacity of doing so; but there is no reason because of which she can’t be charged for gang rape (she too can share the same common intention). It is because of these critical errors in its judgment that Priya Patel should be declared a bad law, but till then, it should be declared as an aberration. 

Conclusion

The rape laws existing in India only cover the tip of iceberg and fail to recognise that other atypical scenarios might exist. Thereby, the legal definitions of crime as well as its elements must be construed according to the social context where they are applied. The old notions denying female criminality should be given up. Therefore, the legislature needs to come up with further amendments to make such laws gender neutral otherwise the female offenders would easily escape from punishment. 

References

• https://blog.ipleaders.in/rapes-india-reasons-prevention/amp/

• https://www.britannica.com/topic/rape-crime/Rape-as-a-weapon-of-war

• https://www.business-standard.com/about/what-is-Section-375

• https://blog.ipleaders.in/can-woman-charged-gang-rape/
• https://blog.ipleaders.in/indian-rape-laws-nutshell/amp/

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