Allahabad HC: If a woman facilitates gang rape, she can be prosecuted for the offence of gang rape

Case: Suneeta Pandey v. State of UP

Bench: Justice Shekhar Kumar Yadav

The Allahabad High Court recently held that a woman cannot be charged with the offense of rape as per the provisions of the Indian Penal Code (IPC). However, if a woman facilitates the act of gang rape by a group of people, she can be prosecuted for the offense as per the amended provisions of the IPC.

The court was hearing an application that sought to quash a summons issued to the applicant in December 2018, ordering them to face trial for the offenses of gang rape and harboring an offender under the IPC. The informant had reported that his 15-year-old daughter was enticed and taken away on June 24, 2015. Subsequently, an FIR was registered against unknown persons under sections 363 and 366 of the IPC, related to kidnapping and inducing a woman to compel her marriage, respectively. Following the victim's recovery, she alleged that she was gang-raped by her captors. In her statement recorded under Section 164 of the Code of Criminal Procedure (CrPC), the victim implicated the applicant in the alleged incident, despite not being named in the chargesheet.

During the hearing, the counsel representing the applicant argued that as his client was a woman, the offense of gang rape could not be attributed to her. On the other hand, the State counsel argued that the applicant had committed the offense as alleged, and being a woman, she could not be exempt from the charge of gang rape. 

The Court acknowledged that as per Section 375 of the IPC, only a "man" can commit the offense of rape, and the language of the provision is clear and unambiguous in this regard. Therefore, the Court held that a woman cannot commit rape. However, the Court also took into account the amended provision of Section 376D of the IPC, which pertains to the offense of gang rape. The Court noted that this is a distinct and separate offense that embodies the principle of joint liability, which is based on the existence of a common intention among the offenders. The Court observed that the conduct of the offenders during the course of the action can reveal their common intention, and they can be held liable for the offense of gang rape even if they did not physically commit the act.

Therefore, the Court did not find any reason to interfere with the trial court order summoning the applicant.