Can a woman be charged under section 354B of IPC?
Sachin (N.A) 23 October 2016
No, only a man can be accused under this and other these type of laws
Ms.Usha Kapoor (CEO) 23 October 2016
A woman can be charged as an abettor of the crime u/ s 354 B and not the commiter or offender of rape. The criminal Law of prosecuting aND PUNISHING A WOMAN OF outraging the modesty of woman or raping a woman AT LEAST AS AN ABETTOR is outside the purview of the current law e as it is genderbiased. Once it is made gender neutral woman or women can be charged for section 354 B nd also section 375 nd 376 IPC as abettors of these crimes.If you APPRECIATE THIS ANSWER PLEASE CLICK THE THANK YOU BUTTON ON THIS FORUM.I'm citing an articole I xcame axcross the net "can a woman be charged for gangRape u/s376 IPC?. Now read on the article. Provision for attachment is not there.
This article is written by Shubham Kumar, a student of Dr. Ram Manohar Lohiya National Law University and an Assistant Editor of iPleaders Blog.
The question itself looks so obnoxious. We are living in a society wherein female security is one of the major concerns for everyone. As per NCRB (National Crime Records Bureau) annual report 2013 there has been 33,707 reported rape cases in India compared to 24,923 cases in the previous year. This trend suggests that there has been a significant increase in rape cases despite so much distress and furore created aftermath the ghastly Delhi Rape case. As per statistics, the conviction rate in rape cases is 27.1% (2013) which is abysmally low. The low conviction rate is due to various factors like victims relinquishing statements, delay in registering the FIR, faulty investigation, inconsistencies and contradictions in the statements by witness, insensitive trial and gruelling cross examination of victims. Everyone in this country asserts that female security is cardinal and law enforcing agencies should be more proactive in such cases.
What I’m going to focus on is not conventionally discussed and is generally considered illogical. A lot of people got offended when I raised this question which is usually politically incorrect especially in the atmosphere we are in right now, where crime against women is the main concern of everyone. But I would still emphasize upon this less discussed but very important and delicate issue because justice is the right of every individual regardless of their gender.
So, can a woman be charged for committing gang rape as contained under section 376(2)(g)[1]?
The issue, ‘whether a woman can commit rape’ is well settled by the non-ambiguous language of section 375 of IPC which expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape. But there is perplexity regarding the commission of “gang rape” by women under section 376(2)(g) IPC. Unlike section 375, section 376(2)(g) talks about “Persons” rather than “man”, which signify that the law-makers intended to keep Sec. 376(2)(g) gender-neutral.
Supreme Court was confronted with the same question, whether a women can be held guilty of Gang Rape in the case of Priya Patel vs. State of Madhya Pradesh(2006)[2], where the appellant Priya Patel was alleged to have committed “gang rape” on the prosecutrix.
I would try to answer the question based on the critical analysis of Priya Patel vs. State of Madhya Pradesh.
Factual Background
In this case, complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. Upon reaching her destination Sagar, she met accused Bhanu Pratap Patel (husband of the accused appellant) at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. During the commission of the rape, his wife, reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. Bhanu Pratap Patel was charged for offences punishable under Sections 323[3] and 376 IPC, the appellant, as noted above, was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC.
Judgment by the Court
The Court precisely held that the non-ambiguous language of section 375 of IPC expressly mentions that the act of rape can only be performed by a ‘man’ and not by “any person”. Thus a woman cannot commit rape.
The court further ruled that a woman cannot have an intention to rape, as it is conceptually inconceivable and therefore, she can neither be held for rape, nor gang-rape. The court further held that the expression “in furtherance of their common intention” as appearing in the Explanation I to Section 376(2) IPC, relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. And therefore, a prosecution cannot be launched against a woman for gang rape[4].
Why Priya Patel is not a good precedent case
Recently, in case of State of Rajasthan vs. Hemraj[5] having facts similar to Priya Patel, the Division bench of SC followed the Judgment pronounced in case of Priya Patel and acquitted Smt. Kamla only because she is a woman.
The Supreme Court in Priya Patel case left many questions unearthed. The acquittal of appellant was prima facie wrong because of the following reasons:
In a similar case, State vs. Meena Devi[6],Meena Devi was charged under Section 342 IPC[7] and Section 376 read with Section 109 IPC[8]. The Sessions Judge, convicted Meena Devi under the aforementioned sections holding her guilty for abetting the offence of rape. The learned Judge held that by bolting the door from outside the accused did not allow the prosecutrix to leave the room and confine her in the room thus facilitated the abetment of commission of crime of rape.[9]
In case of State Government vs. Sheodayal[10], in this case the Madhya Pradesh High Court opined that the Modesty of a woman can be outraged by another woman under section 354 of IPC[11].
The landmark cases which beautifully interpret Section 34 IPC, are Barendra Kumar Ghosh v. King Emperor, and Mahbub Shah v. King Emperor[15]. Without going into the details of these two cases, it must be submitted that it is well settled since long that even though participation in action is required for making one constructively liable for the criminal acts of other, this requirement is not limited to participation in actual criminal act in as much as it would suffice for the purposes of Section 34 IPC that two or more persons joined together in a criminal enterprise with a common intention to bring out a result which is punishable by law. Thus, even physical incapacity is in no way an impediment to fixing liability with the aid of Section 34 IPC, if the requirements of the provision are met with[16].
Let us take up a hypothetical situation, wherein A approaches his friend B and tells him about his intentions of killing C. B initially objects to the idea of killing C but agrees to do so for friendships sake. But B tells him that he will only stand outside the room where A plans to kill C and his job would be confined to raising an alarm if police or other people are seen to be approaching that room. B makes it very clear that in no case he will participate in actual killing. As per plan A kills C when he is fast asleep in his room while B stood guard outside the room. As far as liability is concerned, by virtue of Section 34 IPC, both A and B would be equally liable for the murder of C and it would be immaterial if B participated in the actual killing or not. It is also immaterial if B specifically had an intention to kill C provided that the prosecution is able to prove that B had knowledge of A’s intentions of killing C and B joined A with this knowledge on A’s part[17].
Current Legal Status of Rape by a woman
Owing to very uncommon nature of this case, Priya Patel hasn’t affected the Indian Criminal Jurisprudence, but the said interpretation by the Judge in this case was contrary to the provisions of Gang rape. Section 375, exclusively absolves woman from Rape liability but on contrary section 376(2)(g) includes woman also. Though a woman can’t be charged for committing rape because of the obvious reason i.e. their incapacity to do so, but she can share the same common Intention and could be charged for commission of Gang Rape, because “They also serve who only stand and wait”. Priya Patel should be declared bad law, the sooner, the better, because of many critical error in the judgment and till the, Priya Patel should be treated as an aberration.
Conclusion
The criminal jurisprudence evolves according to the notions and needs of dynamic society. The legal instruments defining crime and mentioning its elements must be read in the societal context in which they are to be applied. Everyone would agree to it that crimes against women are very high in our country but we tend to forget that the female criminality is also at its epitome. The current social reality should be accepted and the age old notion about female criminality should be given up. The legislature should make laws gender-neutral because as seen in Priya Patel and aforementioned cases, female offenders got away with their guilt only because of the Gender Biased laws in IPC. The judiciary on the other hand shouldn’t just fold their hand and mechanically apply the law, without dwelling upon the spirit of the legislation. The current rape law has undergone a significant amendment, whereby the ambit of Rape law is widened but the Gender-Biasedness is still prevalent in the existing law. Section 375 and 376 should be made gender neutral in strict sense, only then it would suffice the objective intended by the law makers. The sooner, the better and till then, Priya Patel should be treated as an aberration.
[1] Subs. By Act 13 of 2013, sec. 9, for the section 375D(w.r.e.f 3-2-2013). Section 376D, before substitution by Act 13 of 2013, stood as under:
Sudhir Kumar, Advocate (Advocate) 28 October 2016
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