The Allahabad High Court dismissed the application filed for quashing the impugned order dated 03.12.2018, whereby the Applicant has been summoned to face the trial u/s 376-D, 212 IPC. A single judge bench of this Court comprising Hon’ble Justice Shekar Kumar Yadav held that a woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of persons.
Brief Facts:
The Applicant filed the present application for quashing the impugned order dated 03.12.2018, whereby the Applicant has been summoned to face the trial u/s 376-D, 212 of IPC in the exercise of power conferred under Section 319 Cr.P.C. as well as entire proceedings of Special Criminal (Sexual) Case arising out of Case Crime No.874 of 2015, under section 376-D & 212 I.P.C, with a further prayer to stay the further proceedings of the aforesaid case.
As per F.I.R., the incident took place on 24.06.2015, and the F.I.R. was lodged against unknown persons on 28.07.2015 under Sections 363 and 366 I.P.C. alleging therein that someone has enticed away the daughter of the informant aged about 15 years and took her with him. The victim in her statement was recorded under Section 164. The victim, in her statement recorded under Section 164 of Cr.P.C. stated that the Applicant was involved in the alleged incident, but the Applicant 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 vide order dated 03.12.2018 summoned the Applicant to face trial for the offence under Sections 376- D and 212 Cr.P.C.
Contentions of the Petitioner:
The learned Counsel for the Applicant contended that the Applicant is a lady hence no offence under Section 376-D I.P.C. is made out against the Applicant and the trial court has wrongly summoned her. It was further argued that a woman cannot commit rape and, therefore, she cannot be prosecuted for gang rape because woman cannot be said to have the intention to commit rape. In support of his submission, the reliance was placed upon the decision of Hon'ble Supreme Court in Priya Patel Vs. State of M.P. and another, (2006) 3 SCC (Cri.) 96.
Contentions of the Respondent:
The learned Counsel for the Respondent submitted that Applicant had committed the alleged offence, and it cannot be said that being a lady, the Applicant or women cannot commit the offence under Section 376-D I.P.C. further it was contended that the judgments relied upon by the learned counsel for the Applicant are of no help as they are related to prior to the amendment in the provisions of Sections 375 to 376E IPC.
Observations of the Court:
This Court, after going through the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the IPC observed that the argument of learned counsel for the Applicant that a woman cannot commit rape and, therefore, she cannot be prosecuted for gang rape is not correct. It was seen 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, 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.
In view of this Court, the term "person" used in the Section should not be construed in a narrow sense. Therefore, the Court held that women cannot 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.
The decision of the Court:
The Allahabad High Court, dismissing the application, held that a woman can also be held guilty of gang rape if she has facilitated the act of rape with a group of persons.
Case Title: Suneeta Pandey vs State of U.P.
Coram: Hon’ble Justice Shekar Kumar Yadav
Case no.: APPLICATION U/S 482 No. - 39234 of 2022
Advocate for the Applicant: - Ravindra Prakash Srivastava
Advocate for the Respondents: - G.A.
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