Introduction 

• This is a landmark judgment where the Supreme Court held that a woman cannot be held liable for offence of gang rape under Section 376 (2) (g) of Indian Penal Code, 1860. 
• The Judgment was delivered by a 2- judge Bench consisting of Justice Arijit Pasayat and Justice SH Kapadia. 

Facts   

• The prosecutrix lodged a complaint alleging that she was returning home by the Utkal Express after attending a sports meet. 
• On reaching Sagar railway station, she was approached by Bhanu Pratap Patel, who is the husband of the present appellant. 
• Bhanu Pratap Patel told the prosecutrix that her father had sent him to pick her up from the station. 
• As the prosecutrix was suffering from fever, she trusted him and accompanied him to his house. 
• At his house, Bhanu Pratap Patel committed rape on the prosecutrix. 
• During the act, the appellant (wife of the accused) arrived at the scene. 
• The prosecutrix pleaded with the appellant to help her, but instead, the appellant slapped her, shut the door, and left the place of incident. 
• Based on the complaint, an investigation was conducted, and a charge sheet was filed. 
• Bhanu Pratap Patel was charged under Sections 323 (voluntarily causing hurt) and 376 (rape) of the Indian Penal Code, 1860 (IPC). 
• The appellant was charged under Sections 323 and 376(2)(g) of the IPC, the latter pertaining to gang rape. 
• The appellant challenged the framing of the charge under Section 376(2)(g) IPC before the High Court, arguing that a woman cannot be charged with rape. 
• The High Court held that although a woman cannot herself commit rape, she can be charged under Explanation I to Section 376(2) IPC if she facilitates gang rape. 
• The appellant’s counsel argued that Explanation I to Section 376(2) IPC was inapplicable and a woman cannot be convicted for gang rape. 
• The State, supporting the High Court’s view, additionally submitted that even if Section 376(2)(g) is not applicable, the appellant can be charged for abetment.

Issue Involved  

• Whether a lady can be held liable for gang rape under Section 376 (2) (g) of IPC? 

Observations 

• Section 375 of the IPC makes it clear that rape can only be committed by a man, as it specifically outlines circumstances in which a man may be said to commit rape. 
• Section 376(2)(g) IPC provides for enhanced punishment in cases of gang rape, stating that "whoever commits gang rape" shall be punished. 
• The Explanation to Section 376(2) clarifies that all persons acting in furtherance of a common intention to rape are deemed to have committed gang rape, even if only one of them actually committed the physical act. 
• However, the deeming provision cannot apply to a woman, as it is conceptually and legally inconceivable for a woman to commit rape. 
• The term "common intention" under Section 34 IPC requires a shared intention to commit the particular crime—in this case, rape. 
• Since a woman cannot legally have the intention to commit rape, she cannot be considered part of the group with a common intention to rape under Section 376(2)(g). 
• Therefore, the appellant, being a woman, cannot be prosecuted for gang rape under Section 376(2)(g) IPC. 
• The Court left open the question of whether the appellant could be charged for abetment of rape, stating that it is for the Trial Court or High Court to consider if facts and law permit. 
• Consequently, the appeal was allowed to the extent that the charge under Section 376(2)(g) IPC against the appellant was quashed.

Conclusion 

• The appellant, being a woman, cannot be prosecuted for the offence of gang rape under Section 376(2)(g) IPC, as rape can only be committed by a man and the concept of common intention to commit rape does not apply to women. 
• However, the possibility of prosecuting the appellant for abetment of the offence remains open and may be considered by the appropriate court based on facts and legal provisions.