The Allahabad High Court has observed that a woman can also be held guilty of gang-rape if she has facilitated the rape with a group of persons while dismissing an application.
A single-judge bench of Justice Shekhar Kumar Yadav passed this order while hearing an application under Section 482 filed by Suneeta Pandey.
The application sought the quashing of the order dated 03.12.2018, whereby the applicant has been summoned to face trial u/s 376-D, 212 IPC in exercise of power conferred under Section 319 CrPC as well as entire proceedings of Special Criminal (Sexual) Case (State Vs Fanindra Mani Ojha alias Dablu and others) arising out of case crime under Section 376-D & 212 IPC, Police Station Kotwali Bansi, District Siddharth Nagar, pending in the court of Additional District and Sessions Judge Ist, Siddharth Nagar with a further prayer to stay further proceedings.
As per FIR, the incident took place on 24.06.2015 and the FIR was lodged against unknown persons on 28.07.2015 bearing case under Sections 363 and 366 IPC alleging therein that someone has enticed the daughter of the informant aged 15 years and took her with him.
The statement of the victim has been recorded under Section 161 and 164 CrPC. The victim in her statement recorded under Section 164 CrPC has 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 CrPC for summoning the applicant and the court below vide order dated 03.12.2018 has summoned the applicant to face trial for the offence under Sections 376-D and 212 CrPC. It is this order which is the subject matter of challenge before the Court.
The counsel for the applicant submitted that the applicant is a lady hence no offence under Section 376-D IPC is made out against the applicant and she has been wrongly summoned by the trial court.
It is further argued that the applicant has been summoned in exercise of powers conferred under Section 319 CrPC solely relying upon the statement of the victim as well as some other extraneous documents, which in fact is not sufficient.
He contends that in view of the aforesaid facts and circumstances, the impugned order under challenge is vitiated by manifest error of law and amounts to blatant miscarriage of justice, and, therefore, is liable to be quashed.
The counsel for the applicant has further argued that the trial court has grossly erred in summoning the applicant for the offence punishable under Section 376-D IPC and Section 212 IPC.
It is argued that a woman cannot commit rape and therefore, she cannot be prosecuted for gang-rape because a woman cannot be said to have an intention to commit rape.
On the other hand, the AGA opposed the submission of counsel for the applicant and submitted that the applicant has committed the alleged offence and it cannot be said that being a lady the applicant or a woman cannot commit the offence under Section 376-D IPC.
The Court considered the submission made by counsel for the applicant and the provisions of Section 319 CrPC and have arrived at a conclusion that no interference is called for in the impugned order.
The Court noted scope and ambit of Section 319 of the Code have been elucidated in the case of Hardeep Singh Vs State of Punjab and others, (2014) 3 SCC 92 by the Apex Court. It has been held that, all that is required by the Court for invoking its powers under Section 319 CrPC is to be satisfied that from the evidence adduced before it, the person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. The ratio laid down by the Supreme Court in Hardeep Singh’s case has been explained by the Apex Court in the case Manjeet Singh Vs State of Haryana and others, (2021) SCC Online SC 632. The Supreme Court after noticing its subsequent judgments on the issue, summarized the scope and ambit of the powers of the Court under Section 319 CrPC and has held that it is only the material collected by the court during the course of inquiry or trial and not the material collected by the investigating agency during the investigation of the case which can be used, while arraigning an additional accused. The Supreme Court has made it clear that the word “evidence” appearing in Section 319 CrPC means only such evidence as is made before the court in relation to statements and in relation to the documents which can be used by the court for unveiling all facts, other than the material collected during investigation.
Of course, the evidence would also include the evidence led during the trial of the case after framing of charges. It is also laid down that besides the evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 of the CrPC.
The Court said that so far as the argument of counsel for the applicant that a woman cannot commit rape and, therefore, she cannot be prosecuted for gang-rape is not correct after going through the amended provisions of Section 375 to 376E IPC by Act 13 of 2013 of the IPC, 1860.
“The case of Priya Patel (Supra), was a case of gang-rape, where the wife of the appellant facilitated commission of gang-rape within the meaning of Section 376(2)(g) IPC. After elaborate discussion on the provisions under Section 375 and 376 IPC, it was held therein, amongst others, that a woman cannot be prosecuted for alleged commission of offence of gang-rape.
However, going through the amended provisions of Section 375 IPC & 376 IPC, the question, whether a female can commit the offence of rape is itself clear by the non-ambiguous language of Section 375 of IPC which specifically states that the act of rape can only be done by a ‘man’ and not by “any woman”. Therefore, a woman cannot commit rape. But looking through again the amended provision of Section 376-D IPC, which is a distinct and separate offence of Gang Rape-according to which- “Where a woman is raped by ‘one or more persons’ constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have comitted the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that persons’s natural life, and with fine”.
Thus, from the language used in Section 376-D IPC, it is 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 presupposes prior concert which may be determined from the conduct of offenders revealed during the course of action.
In such cases, there must be criminal sharing, marking out a certain measure of jointness in the commission of offence. The term “person” used in the Section should not be construed in a narrow sense. Section 11 IPC defines ‘person’ as it includes any company or association or body of persons whether incorporated or not. The word “person” is also defined in the Shorter Oxford English Dictionary in two ways: firstly, it is defined as “an individual human being” or “a man, woman, or child”; and, secondly, as “the living body of a human being”. As such, a women can not 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. Unlike men, a woman can also be held guilty of sexual offences. A woman can also be held guilty of gang-rape if she has facilitated the act of rape with a group of person.
Keeping in view of the aforesaid facts and law laid down by the Apex Court, I find no scope for interference in the impugned order passed by the trial court at this stage,” the Court observed while dismissing the application.