New Delhi: Can a woman be prosecuted on the charge of gang rape?

The Supreme Court has said "no" and quashed the charges framed against a woman. The charge was that she abetted her husband in raping a girl and this amounted to gang rape.

A Bench of Justices Arijit Pasayat and S.H. Kapadia said, "A bare reading of Section 375 IPC 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."

Mr. Justice Pasayat, writing the judgment, noted that as per the explanation in Section 376 (2) IPC "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."

Priya Patel was charged with the offence of gang rape along with her husband Bhanupratap Patel.

According to the charge sheet, when Bhanupratap was committing the crime, Priya went to the room and the victim sought her for help.

'However, she slapped the victim and bolted the room from outside and left the place.

Bhanupratap and his wife were charged with the offence of gang rape under Section 376 (2) (g) of the IPC.

Ms. Patel challenged the framing of charge by the trial court. The Madhya Pradesh High Court dismissed her revision, holding that though a woman could not commit rape, if she facilitated the act of rape, Section 376 (2) would be attracted.

Her appeal in the apex court was directed against this order.

Allowing the appeal, the Bench referred to the State's contention that there was a "common intention" (as contemplated under Section 34 IPC) to commit the offence of gang rape, and said that the act must be done in furtherance of a common intention to commit rape.

"A woman cannot be said to have an intention to commit rape. Counsel for the appellant is right in her submission that she cannot be prosecuted for alleged commission of the offence punishable under Section 376 (2) (g) of the IPC," the Bench said and quashed the charges. On whether the appellant could be charged for abetment, the Bench said it was for the court concerned to act if it was permissible in law.

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