The Court said that the term "person" used in Section 376D of the Indian Penal Code should not be construed in a narrow sense.

The High Court recently held that although a woman cannot commit the offence of rape, if she facilitates the act of gang-rape of any woman by a group of people, then she may be prosecuted for the offence as per the amended provisions of the Indian Penal Code (IPC).

HC relied on the amended Sections 375 and 376 of the IPC to hold,

"As such, a women can not commit the offence 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 (sic) man, 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."

The Court was hearing an application seeking quashing of a December 2018 order by which the applicant was summoned to face trial for the offences of gang-rape and harbouring an offender under the IPC.

As per the informant, his daughter aged 15 years was enticed and taken away on June 24, 2015. Thereafter, a First Information Report (FIR) was lodged against unknown persons under Sections 363 (kidnapping) and 366 (kidnapping, abducting or inducing woman to compel her marriage, etc) IPC.

After the victim was recovered, she alleged that gang-rape had been committed upon her by her captors. In her statement recorded under Section 164 of the Code of Criminal Procedure (CrPC), the victim claimed that the applicant was involved in the alleged incident, despite the fact that she was not named in the chargesheet.

Counsel for the applicant argued that since his client was a lady, no offence of gang-rape could be made out against her. He contended that the trial court order under challenge amounts to a blatant miscarriage of justice, and should be quashed.

On the other hand, the State counsel argued that the applicant committed the alleged offence and it cannot be said that being a lady, she cannot commit the offence of gang rape.

The Court noted that the question of 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, the Court said.

However, the Court also took into consideration the amended Section 376D IPC, noting that it is a distinct and separate offence of gang-rape, as it says,

“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 committed the offence of rape..."

The provision embodies a principle of joint liability and the essence of that liability is the existence of common intention which may be determined from the conduct of offenders revealed during the course of action, the Court added.

The Court further observed that the term "person" used in the concerned 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"."

For these reasons, the Court saw no reason to interfere with the trial court order summoning the applicant.