PRIYA PATEL versus STATE OF M.P. AND ANR.

Citation: [2006] SUPP. 3 S.C.R. 456 · Decided: 12-07-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
PRIYA PATEL 
v 
STATE OF M.P. AND ANR. 
JULY 12. 2006 
B 
[ARIJIT PASA Y AT AND S.H. KAPADIA, JJ.) 
Penal Code, 1860: 
ss. 375 and 376(2){g), Explanation !-'Gang rape'-A woman charged 
C u/s 376(2)(g)-On the allegation of facilitating her husband in commission 
of offence of rape of prosecwrix-Held, s.375 makes it clear that rape can 
be committed on~v by a man-The e>pression "in furtherance of their common 
intention" as appearing in Explanation I to s.376(2) relates to intention to 
commit rape-A woman cannot be said to have an intention to commit rape 
D and, therefore, cannot be prosecuted u/s 376(2){g)-lt is for the court 
concerned to consider l1'hether such a woman can be charged for abetment, 
if in /alt' it is permissible and the facts warrant such a course to be adopted 
On the basis of a complaint lodged by the prosecutrix, husband of the 
appellant was charged for offences punishable under ss.323 and 376 IPC and 
E the appellant was char:-;ed under ss.323 and 376(2)(g) IPC. The allegation 
against her was that while her husband was ravishing the prosecutrix, she 
instead of saving her, slapped her, closed the door of the house and left the 
place of incident. In the revision filed by the appellant it was argued before 
the High Court that a woman could not be charged for commission of offence 
of rape. The High Court dismissed the revision holding that if a woman 
F facilitates the act of rape, Explanation I to s. 376(2) would come into operation 
and she could be prosecuted for 'gang rape'. Aggrieved, the accused woman 
filed the present appeal. 
G 
Allowing the appeal, the Court 
HELD: I.I. Section 375 IPC shows that rape can be committed only by 
a man. The section itself provides as to when a man can be said to have 
committed rape. Section 376(2) IPC makes certain categories of serious cases 
of rape as enumerated therein attract more severe punishment. One of them 
relates to 'gang rape'. The language of sub-section(2)(g) provides that 
If 
456 
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PRIYAPATELv. STATEOFM.P. [PASAYAT,J.] 
457 
"whoever commits 'gang rape" shall be punished etc. Explanation I thereto A 
only clarifies that when a woman is raped by one or more in a group of persons 
acting in furtherance uf their common intention each such person shall be 
deemed to have committed 'gang rape'. That cannot make a woman guilty of 
committing rape. This is conceptually inconceivable. The expression "in 
furtherance of their common intention" as appearing in the Explanation relates B 
to intention to commit rape. A woman cannot be said to have an intention to 
commit rape. Therefore, the appellant cannot be prosecuted for alleged 
commission of the offence punishable under Section 376(2)(g). 
(460-C-H; 461-A] 
2. The residual question is whether the appellant can be charged for C 
abetment. This is an aspect which has not been dealt with by the trial court or 
the High Court. If in law, it is permissible and the facts warrant such a course 
to be adopted, it is for the court concerned to act in accordance with law. 
(461-B] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 754 of D 
2006. 
From the Judgment and Order dated 4.10.2005 of the High Court of 
Judicature at Jabalpur, Madhya Pradesh in Criminal Revision No. 1306/2005. 
Rachna Gupta and Dr. Indra Pratap Singh for the Appellant. 
C.D. Singh, Minakshi Sharma, Kiran Suvama and Dhrupad Kashyap for 
the Respodents. 
The Judgment of the Court was delivered by 
ARIJIT PASA Y AT, J. Leave granted. 
Can a lady be prosecuted for gang rape is the interesting question 
involved in this appeal. 
E 
F 
Challenge in this appeal is to the order passed by a learned Single G 
Judge of the Madhya Pradesh High Court holding that the charge framed 
against the appellant under Sections 323 and 376(2)(g) of the Indian Penal 
Code, 1860 (in short 'IPC') is in order. 
Background facts in a nutshell are as follows: 
H 
458 
SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R. 
A 
Complaint was lodged by the prosecutrix alleging that she was returning 
by Utkal Express after attending a sports meet. When she reached her 
destination at Sagar, accused Bhanu Pratap Patel (husband of the accused 
appellant) met her 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 
B from fever, she accompanied accused Bhanu Pratap Patel to his house. He 
committed rape on her. When commission of rape was going on, his wife, the 
pre

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