In a welcome move, the Allahabad High Court in its judgement dated February 13, 2022 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.
The accused woman had approached the High Court arguing that being a woman, she could not be prosecuted for the alleged commission of the offence of gang rape.
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Case:
The alleged incident of gang rape of a 15-year-old girl took place in June 2015. An FIR was lodged by the informant against unknown persons in July 2015 under sections 363 and 366 IPC alleging that someone had enticed away the daughter of the informant and took her with him.
In her Section 164 CrPC statement, the victim stated that the applicant Sunita Pandey (accused woman) 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 in December 2018.
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Defense by Accused Woman
Learned counsel for the applicant submitted that his client is a lady hence no offence under Section 376-D IPC is made out against the applicant and she has been wrongly summoned by the trial court. It was further argued that the applicant has been summoned in exercise of powers conferred under Section 319 Cr.P.C. solely relying upon the statement of Victim (P.W-1) as well as some other extraneous documents, which in fact is not sufficient.
He contended that in view of the aforesaid facts and circumstances, the impugned order under challenge is vitiated by manifest error of law and amounts to blatant miscarriage of justice, and, therefore, is liable to be quashed.
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Trial Court
Pandey moved court under Section 482 CrPC after being 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. When the court rejected her plea, she approached High Court.
Allahabad High Court
The Allahabad High Court too rejected Pandey’s plea to quash the summoning order as well as to stay the further proceedings in the case. Pandey’s primary argument remained that she could not be prosecuted for rape on the ground that she was a lady, thus no offence under Section 376-D IPC is made out against her and that she has been wrongly summoned by the trial court.
After 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 rape.
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Incorrect Interpretation
At the outset, the high court 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 Court remarked:
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.
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Scope of ‘Gang Rape’
The High 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.
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Dismissing the accused woman’s plea, the Allahabad High Court said,
Keeping in view of the aforesaid facts and law laid down by the Apex Court, I find no scope for interference in the impugned order passed by the trial court at this stage. The application has no force and is accordingly dismissed.
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READ JUDGEMENT | Woman Can Also Be Held Guilty Of Gang Rape If She Has Facilitated Act Of Rape With Group Of Persons: Allahabad HC
— Voice For Men India (@voiceformenind) February 16, 2023
▪️Accused Suneeta Pandey: "Being a woman, I can't be prosecuted for alleged gang rape"#CrimeHasNoGender#VoiceForMenhttps://t.co/AmdxjW5UyN
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