Woman 'Facilitating' Rape Can Be Prosecuted For Gang Rape: Allahabad HC

The Allahabad High Court observed that a woman cannot commit 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 the Indian Penal Code (IPC) in view of the amended provisions.

Perusing the provisions of Sections 375 and 376 of the IPC, the bench consisting of Justice Shekhar Kumar Yadav rejected the argument that a woman cannot be prosecuted for the alleged commission of the crime of gang rape.

In addition, the court denied a section 482 CrPC petition filed by Suneeta Pandey, who was summoned by Additional District and Sessions Judge, Ist, Siddharth Nagar, to face a trial under sections 376-D and 212 IPC in connection with an alleged rape of a 15-year-old girl.

Woman Prosecuted For Gang Rape

According to the facts of the case, the incident occurred in June 2015, and the informant lodged an FIR against unknown persons in July 2015 under sections 363 and 366 of the IPC, alleging that someone had lured away the 15-year-old daughter of the informant and taken her with him.

The survivor stated that the applicant was involved in the alleged incident in her section 164 CrPC statement. However, the applicant was not named in the charge sheet. Opposing party No. 2 filed an application under Section 319 CrPC for summoning the applicant, and the court below allowed the plea.

In accordance with this, the applicant moved to the High Court seeking to quash the summon order and stay further proceedings in the case on the ground that, being a lady, no offence under Section 376-D of the IPC is made out against the applicant and that she has been wrongly summoned by the trial court.

Considering all the facts of the case, the high court noted at the outset that the argument that a lady cannot be prosecuted for gang rape is not correct according to the amended provisions of Sections 375 to 376E of the 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 the IPC that a woman cannot commit rape as the section specifically states the act of rape can only be committed by a man and not by any woman, the same is not the case with Section 376 D (gang rape).

The court explained the scope of gang rape in this order by observing that to establish an offence under Section 376-D of the IPC, the prosecution must cite evidence indicating that one or more persons acted in concert, and in such an event, even if the rape was committed by only one person, all the accused will be held guilty regardless of whether the survivor was raped by one or more of them.

The court clarified, in other words, that this provision embodies the principle of joint liability because the existence of common intention presupposes prior to concert, which may be determined from the conduct of the offenders revealed during the course of action. Stating this, the court dismissed the applicant's plea.

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