DR.

RAM
MANOHAR
LOHIA
NATIONAL LAW
UNIVERSITY, LUCKNOW

Session 2014-15

Priya Patel vs. State Of Madhya Pradesh and Anr.

Submitted To:

Submitted By:

Dr. K.A. Pandey

Sahil Yadav

Asst. Professor

Roll No. 103

Dr. RMLNLU, Lucknow

III Semester

Contents
INDEX OF AUTHORITIES............................................................................................... 3
TITLE:......................................................................................................................... 4
BENCH:........................................................................................................................ 4
BRIEF FACTS:............................................................................................................... 4
LEGAL ISSUES:............................................................................................................. 5
JUDGMENT:................................................................................................................. 5
CASE ANALYSIS........................................................................................................... 6
CASE REVIEW:............................................................................................................. 9

INDEX OF AUTHORITIES
Cases:
1. Bhupinder Sharma vs State Of Himachal Pradesh, AIR 2003 SC 4684
2. Om Prakash vs The State Of Haryana And Anr., (1970) 3 SCC 107 a

TITLE:
Priya Patel vs. State of Madhya Pradesh and Anr. [(2006) 6 SCC 263]

BENCH:
DIVISION BENCH

A Pasayat, J
S Kapadiya, J

BRIEF FACTS:

The facts of the case were that the victim who was returning to Sagar by Utkal Express from a
sports meet, Bhanu Pratatp Patel an acquaintance of the victim met her at the station and took her
to his house under the pretext of having been asked by her father to pick her up. Consequently,
they went to his house where he raped her. While this was happening, the appellant reached the
house, the victim thereof cried for help when the husband of appellant was about to rape her. The
Appellant arrived on the spot, once there, instead of helping the victim or preventing her husband
from committing rape; she slapped the victim, bolted the door from outside and left the scene.
She was charged with the commission of gang rape under section 376 (2) (g) of IPC 1860. Trial
court as well as Madhya Pradesh High Court maintained the charge. She appealed in the
Supreme Court with the contention that it is not possible under Indian laws to prosecute a female
for Rape or for Gang Rape. The states contention was that she could be prosecuted for Gang
Rape under Explanation I to S 376(2) for facilitating rape.

LEGAL ISSUES:

Whether being a male is a pre requisite for prosecution under Section 376(2) (g) of IPC?

Whether Section 376 (2) (g) is alienable from Section 34 of IPC?

Whether Section 376 (2) (g) has always to be read with respect to Section 375 of IPC?

JUDGMENT:
As was delivered by the Supreme Court in the judgment written by Justice A Pasayat:
A bare reading of Section 375 makes the position clear that rape can be committed only by a
man. The section itself provides as to when a man can be said to have committed rape. Section
376(2) makes certain categories of serious cases of rape as enumerated therein attract more
severe punishment. One of them relates to "gang rape". The language of sub-section (2) (g)
provides that "whoever commits 'gang rape" shall be punished etc. The Explanation only clarifies
that when a woman is raped by one or more in a group of persons acting in furtherance of their
common intention each such person shall be deemed to have committed gang rape within this
sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually
inconceivable. The Explanation only indicates that when one or more persons act in furtherance
of their common intention to rape a woman, each person of the group shall be deemed to have
committed gang rape. By operation of the deeming provision, a person who has not actually
committed rape is deemed to have committed rape even if only one of the group in furtherance of
the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC

and provides that when a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it was done by
him alone. "Common intention" denotes action in concert and necessarily postulates a prearranged plan, a prior meeting of minds and an element of participation in action. The acts may
be different and vary in character, but must be actuated by the same common intention, which is
different from same intention or similar intention. The sine qua non for bringing in application of
Section 34 IPC is that the act must be done in furtherance of the common intention to do a
criminal act. The expression "in furtherance of their common intention" as appearing in the
Explanation I to Section 376(2) relates to intention to commit rape. A woman cannot be said to
have an intention to commit rape. Therefore, the counsel for the appellant is right in her
submission that the appellant cannot be prosecuted for alleged commission of the offence
punishable under Section 376(2) (g).

CASE ANALYSIS:
The case came in front of the Honble Supreme Court in the form of SLP (Crl.)No.68 of 2006 in
appeal from the Madhya Pradesh High Court which ruled against a revision petition filed by the
appellant against the framing of charges under Section 376(2)(g) of IPC against her, the
contention of the appellant was that charges of Gang Rape cannot be pressed against a woman
according to the IPC, the single judge of the Honble High Court ruled that though a woman
cannot be prosecuted for Rape she can be prosecuted for Gang Rape if her actions were deemed
to be in furtherance of the commission of the Crime.
The case posed many serious questions when it came up in front of the Supreme Court in relation
to the rape statutes in the country and the Judgment delivered by Arijit Pasayat, J. answered a lot
of questions in this regard.
The most important question that had been put forward in this case was whether a woman could
be prosecuted for gang rape, the petition filed before the High Court was centered around the fact
that a woman cannot commit rape, the High Court was of the view that though a woman cannot
be said to having committed rape, but if a woman facilitates the act of rape, Explanation I of
Section 376(2) comes into operation and she can be prosecuted for gang rape.

The counsel for the appellant contested that the High Court has clearly missed the essence of
Section 375 and 376 IPC, the two are not alienable from each other and so as the woman cannot
commit rape, she also cannot be convicted for committing gang rape, and Explanation I of
Section376(2) has no relevance.
Definition of rape as under Indian Penal Code is provided in Section 375 and it reads:A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following
descriptions:Firstly, against her will.
Secondly, without her consent.
Thirdly, with her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
Fourthly, with her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly, with her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
Sixthly, with or without her consent, when she is under sixteen years of age.
376. Punishment for rape
(1) Whoever, except in the cases provided for by sub-section (1), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than
seven years but which may be for life or for a term which may extend to ten years and
shall also be liable to fine unless the women raped is his own wife and is not under
twelve years of age, in which cases, he shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) (g) Whoever, commits gang rape, shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which may be for life and shall also be
liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term of less than
ten years,
Explanation I. where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this sub-section."
As can clearly be seen from the language used in the statutes, being a male is a pre requisite for
the commission of rape and a woman cannot be accused of having committed rape; also the
language of Section 376(2) clearly shows that it merely enumerates the serious categories of rape
and enumerates the punishments they attract, 376(2) (g) merely gives the punishment for gang
rape, the explanation provides that when a woman is raped by more than one person it is gang
rape. From this we can clearly infer that gang rape is a categorisation of rape, and hence all
limitations and conditions applicable to the definition of rape would also be applicable to the
definition of gang rape, which would mean that being a man would also be a pre requisite for
being prosecuted for gang rape, and hence a lady cannot be prosecuted for gang rape.
The judgment further went on to say that the language used in 376(2) (g) clearly mentions that
all the accused must be acting in furtherance of their common intention, as per section 34 of IPC
common intention, that when a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons is liable for that act in the same manner as if it
was done by him alone. "Common intention" denotes action in concert and necessarily postulates
a pre-arranged plan, a prior meeting of minds and an element of participation in action. As a
woman cannot be said to possess the intention to commit rape she cannot be said to possess the
common intention to act in furtherance of gang rape.
The appeal was allowed based on the following reasons.

CONCLUSION:
The judgment of the case earmarked the culpability of a woman in cases of gang rape as its most
significant question. This question was answered in great detail and the ratio provided was to a
great extent satisfactory in the light of the language of the concerned statutes, the judgment very

clearly defined what are the pre requisites for a rape to be committed, it also underlined the
relation between statutes governing rape law and went on to highlight how these relations would
govern the interpretation of these statutes. Even the language of the judgment was such that left
very little in this respect uncovered, it very clearly established the absence of gender neutrality in
statutes pertaining to rape or sexual offences in India, and explained exactly why a woman
cannot be prosecuted for gang rape, hence settling the question with regard the existing statute at
the time.
Also it very clearly defined the relation between the statutes governing gang rape and common
intention and explained how in the absence of common intention, or in situations where the
existence of common intention is rendered impossible, there can be no prosecution for gang rape
even if the actions of the person seemingly abet or aid the commission of the rape, this line of
reasoning can also be found in the case of Om Prakash v State of Haryana 1 Even in the cases
where the statement of victim is accepted as truthful, it is expected of the prosecution to show
some basic evidence of common intention or concert prior to commission of the offence. In the
present case, Bhanu Pratap Patel, alone took the victim to his house and proceeded to commit
rape. It is there that he met the appellant. The appellant, except providing a space and cot and
helping the accused in wrongfully detaining the victim, had shown no further act or common
intention that can be attributable to rape. There is no evidence that there was a common concert
or common intention or meeting of minds prior to commission of the offence between the two
accused. but there were a few other important questions that needed answering that had come
up during this case. The ratio given in Bhupinder Sharma v State of Himachal Pradesh 2 states
that in cases of gang rape the proof of the complete act of rape by each accused on the victim is
not required. The statutory intention in introducing Explanation (1) in relation to Section 376(2)
appears to have been done with a view to effectively deal with the growing menace of gang rape.
In such circumstances, it is not necessary that the prosecution should adduce clinching proof of
a completed act of rape by each one of the accused on the victim or on each one of the victims
where there is more than one in order to find the accused guilty of gang rap e.

1
2

Om Prakash v State of Haryana, SCC 1994 Supl.(2) 366

Bhupinder Sharma v State of Himachal Pradesh ,AIR 2003 SC 4684

A contention was raised by the counsel of the state that the woman may be held liable for
Abetment as under section 108 of the IPC. The court on this said that such contention should
have been raised in the trial court or in High Court, but it may not be done here.
A person when instigates a crime or assists in its pursuance may be held liable for Abetment of
crime. Even in the present matter if it may have been taken up, then appellant may have been
convicted on the charge of abetment of rape but then a new issue may have come up. This may
have led to a discrimination on basis of sex with a man is deemed to have common intention and
therefore must be held liable for rape but on the other hand a woman, doing the same act as the
man was, might be liable for abetting the crime.
Quite clearly it is a well worded judgment based on how painstakingly descriptive it is in terms
of the relations between various statutes and their repercussions on the given factual situation, it
establishes very clearly, exactly how dependant section 376(2) is on both sections 375 and 34 of
IPC, and gives a very clear cut opinion on its extent. The judgment established that a woman
cannot be prosecuted for gang rape and the ratio given was sound.