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A Supreme Court of India ruling shields women from being accused of rape, holding that it is conceptually inconceivable under India's legal definition of rape for a woman to commit the crime. Furthermore, a woman cannot be prosecuted even if she participates in a gang rape
In a significant ruling, the Supreme Court (SC) of India has held that a woman cannot be prosecuted for gang rape even if she has assisted in the crime. The order was passed by a two-judge SC bench, overruling a verdict by the Madhya Pradesh High Court which had held a woman guilty of 'gang rape' for helping her husband commit the crime.
The bench, comprising Justice Arijit Pasayat and S H Kapadia, said: "A bare reading of Section 375 of the Indian Penal Code (IPC) makes the position clear that rape can be committed only by a man." The judgment was passed on July 12, 2006, in an appeal filed by Priya Patel.
Patel's counsel argued that the high court had missed the core of Section 375 that defines rape as an offence for which penetration is necessary. Counsel contended that since, by this definition, a woman cannot "commit rape," she cannot be convicted of having committed gang rape.
Justice Pasayat, writing the judgment, noted that according to the explanation in Section 376 (2) of the IPC: "Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each one of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. That cannot make a woman guilty of committing rape. This is conceptually inconceivable."
Patel was charged with the offence of gang rape along with her husband, Bhanu Pratap Patel. Allegedly, when the man assaulted the victim she asked for help but Patel slapped her and bolted the door from outside, leaving the scene of the crime.
A First Information Report (FIR) was registered in November 2004 based on which the husband was charged with offences pertaining to voluntarily causing hurt and rape while his wife Patel was charged with the offence of gang rape.
When Patel moved the Madhya Pradesh High Court seeking dismissal of the charges against her, the court rejected her petition holding that "a woman cannot commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376 (2) comes into operation and she can be prosecuted for gang rape".
Patel challenged the high court's decision against her, citing that a woman cannot be charged with the offence of rape.
Overturning the Madhya Pradesh High Court's verdict, the Supreme Court bench ruled that: "A woman cannot be said to have an intention to commit rape. The counsel for the appellant is right in her submission that she cannot be prosecuted for alleged commission of the offence punishable under Section 376 (2) (g)."
But the bench did say that if it was permissible by law, Patel could be charged with abetment of the offence of rape. The Supreme Court left it to the trials court to decide if the accused could be prosecuted for abetment.
Source: The Hindu, July 14,
2006
The Hindu, July 13,
2006
www.dnaindia.com, July 13, 2006
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