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Can a woman be prosecuted for committing or abetting the offence of gang rape?

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Section 376(D) of IPC defines gang rape as 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.

According to the definition of rape, provided by section 375 of IPC, only a man can be said to have committed rape not anyone else but the definition of gang rape provided by section 376(D) uses the term "one or more persons" not man specifically. Does the definition of gang rape imply that the term "one or more persons" includes woman also?

On 12/07/2006, Hon’ble Supreme Court while dealing with a criminal appeal (Priya Patel vs State of MP) has held that, 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. The language of section 376(2)(g) [before 2013 amendment] provides 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. 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 pre-arranged 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 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 to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, appellant(a woman) cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g). 

It was argued on behalf of the State that even if for the sake of argument it is conceded that the appellant cannot be prosecuted for commission of offence punishable under Section 376(2)(g), she can certainly be prosecuted for commission of the offence of abetment. Court didn't express any opinion on the same since this question was not dealt with by the Trial Court or High Court. 

[Note - before the amendment of 2013, gang rape was defined under section 376(2)(g).]

Hon’ble Supreme Court in the case of Om Prakash vs State of Haryana(2014) has held that, We find that in the present case, there is positive evidence adduced by the prosecution that accused Chhoti(woman) has aided the commission of offence by asking the victim to go to her house to take ‘lassi’ where accused Om Prakash and Kartar Singh bolted the room and subjected the victim to rape. From the record, it appears that for about an hour, the victim was not allowed to go out from the house where she was subjected to rape. It was the house of accused Chhoti and her husband where the incident is said to have taken place. Intentional aiding of the offence is covered by the third clause mentioned in Section 107 IPC.

In the case of Kulwant Singh @ Kulbansh Singh vs State of Bihar(2007), it was held that, mere failure to prevent the commission of an offence is not by itself an abetment of that offence. Considering the definition in Section 109 strictly, the instigation must have reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. Section 109 is attracted even if the abettor is not present when the offence abetted is committed provided that he had instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to the conspiracy some act or illegal omission takes place or has intentionally induced the commission of an offence by an act or illegal omission.

In the case of Smt. Poorva Goyal vs State of Madhya Pradesh(2017), Madhya Pradesh High Court has held that, a woman though cannot commit rape, can still be held liable for abetment under Section 109 of IPC. “abetment is separate and distinct offence than rape” and if the act abetted is committed in consequences of the abetment, then the person i.e. man or woman abetting such crime is liable to be punished under Section 109 of IPC. Thus, a woman can definitely be held liable for abetment to rape under Section 109 of IPC and can be punished accordingly. 

In the light of above discussion it can be concluded that a woman can not be prosecuted for committing the offence of rape or gang rape but she can certainly be prosecuted for abetting the commission of offence of rape or gang rape. 

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