Dr.

Ram Manohar Lohia National Law

University
Session - 2016-2017

Criminal Law-I

Final Draft

Title: Priya Patel v. State of M.P. & Anr. AIR 2006 SC 2639

Submitted to: Submitted By:

Mr. Malay Pandey Avinash Maurya

Assistant Professor Semester III Sec A
RMLNLU Roll no. 35

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 Acknowledgement

I would like to take this opportunity to thank Mr. Malay Pandey without whose
valuable support and guidance, this project would have been impossible . His excellent teaching

guidance and steadfast support has been invaluable and ensured the completion of this project.

Of course I never would have been able to conduct this study or write this final draft of my
project without the assistance provided by the library staff and would also like to thank the
library staff for having put up with my persistent queries and having helped me out with the
voluminous materials needed for this project.

Furthermore, I would also like to thank and show my deepest appreciation towards my seniors
for having guided me and culminate this acknowledgement by thanking my friends for having
kept the flame of competition burning, which spurred me on through the days and I am also
indebted to my various batch-mates, all of whom took on extra responsibilities to allow me the
time needed to document my findings and share them here, to whom I owe a special thanks.

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 TABLE OF CONTENTS

Title Page No.

1. A Brief Introduction.4

2. Facts..4

3. Law on the Point...5

4. Main Legal Issues.5

5. Judgment...6

6. Case Comment..7

A BRIEF INTRODUCTION

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her and closed the door and Priya Patel v. State of M.P and Anr. (AIR 2006 SC 2639) ,
Criminal Appeal No. 754 of 2006 decided on 12 July 2006, is a judgment delivered by
Divisional bench which comprises of ARIJIT PASAYAT and S.H. KAPADIA, JJ. In this case
the husband of appellant (Priya Patel) was commissioning rape of prosecutrix, later on Appellant
reached on the spot, instead of helping the victim or prevent her husband from raping the
women, slapped the victim, bolted the door from outside and left the scene. On the basis of this
the complaint lodged, investigation was undertaken and charge-sheet was filed. Accused was
charged for rape under Sec 376 IPC along with causing hurt under Section 323 and the appellant
lady was charged for gang rape under Sec 376 (2)(g) IPC. The High Court was of the view that
though a women cannot commit rape, but if a women facilitates the act of rape then Explanation
1 of sec 376(2)(g) comes into operation and she can be prosecuted for gang rape. But the
Supreme Court held the language of sub section (2) (g) of sec 376 which provides that whoever
commits gang rape shall be punished etc. The explanation only clarifies that when a woman is
raped by one or more in a group or person shall be deemed to have committed gang rape within
sub section (2) to sec 376 IPC and that cannot make a woman guilty of committing rape. This is
conceptually inconceivable. The explanation only indicates that when one or more person act in
furtherance of their common intention to rape a woman, each person of the group shall be
deemed to committed gang rape.

FACTS

In the given case Priya Patel v State of M.P 1, a complaint was lodged by the prosecutrix alleging
that when she was returning from Utkal express after attending a sports meet as she was a sports
person, she reached her final destination in Sagar, the accused, Bhanu Pratap Patel (also the
husband of Priya Patel the appellant- accused) met prosecutrix at railway station and told her that
her father has asked him to pick her from the station as she was not well. Prosecutrix
accompanied accused to his house where he tried to rape him. When she shouted and screamed
then her voice has been heard by Priya Patel as she came there on the house. The interesting
thing in the case was that, when Priya Patel reached there then prosecutrix requested her to save

1 AIR 2006 SC 2936

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her but instead of saving her, the accused-appellant slapped left from the place of the incident.
On the basis of the complaint lodged, investigation was undertaken and charge sheet was filed.
Husband Bhanu Pratap was charged for rape under sec 376 and 323 of IPC which included
voluntarily causing hurt whereas the appellant lady was charged for gang rape under sec 376 (2)
(g) of IPC. The High Court was of the view that though a women cannot commit a rape but if a
woman facilitates the act of rape then sec 376 (2) (g) come into force which provides that
whosoever commits gang rape shall be punished.

LAW ON THE POINT

In this case respectively three sections of IPC have applied.

Firstly, Sec 34 which states 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 were done by him alone.

Secondly, Sec 323 which states that, Whoever, except in the case provided for by section 334,
voluntarily causes hurt, shall be punished with imprisonment of either description for a term
which may extend to one year, or with fine which may extend to one thousand rupees, or with
both.

Thirdly, Sec 376 and 376 (2)(g) which states, Punishment for rape and whoever commits
gang rape shall be punished.

MAIN LEGAL ISSUES

Can a woman be prosecuted for gang rape?

Whether a woman who facilitates rape, can be charged for abetment?

JUDGEMENT

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The Supreme Court gave a Unanimous Judgement given by Arijit Pasayat and S.H Kapadia. The
court 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. Section 376(2) makes certain categories of serious cases of rape as enumerated
therein attract more severe punishment. One of them relates to "gang rape". The language of sub-
section (2) (g) provides that "whoever commits 'gang rape" shall be punished etc. The
Explanation only clarifies 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. The Explanation only indicates that 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, the
counsel for the appellant is right in her submission that the appellant cannot be prosecuted for
alleged commission of the offence punishable under Section 376(2)(g). The residual question is
whether she can be charged for abetment. This is an aspect which has not been dealt with by the
Trial Court or the High Court. If in law, it is permissible and the facts warrant such a course to be
adopted, it is for the concerned court to act in accordance with law.

CASE COMMENT

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The judgement given by the court in this case indicates towards the gender-bias approach of
penal law relating to rape. In this case the apex first of all cleared its position that rape cannot be
committed by a woman on the basis of bare reading of S.375 of IPC 2. SC is also of the view that
Priya Patel (accused-appellant) cannot be charged for gang rape under S.376 (2)(g) of IPC 3 while
reading with S.344 of IPC because in Explanation I5 of 376 which clarifies 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) but in this
case Priya Patel, a woman cannot hold intention of raping another woman and is also not
capable of just because biological facts of woman. Hence SC held that she cant be charged for
gang rape, overruling the judgment of M.P. High court.

The reasoning on which decision is given is not adequate, in landmark case on Joint Criminal
liability S.34 of IPC6 Barendra kr. Ghosh v King Emperor7 it is well established that if two or
more persons joined together in a criminal enterprise with a common intention to bring out a
result which is punishable by law then even physical incapacity is on no way an impediment to
fixing liability with aid of S.34 IPC, if the requirement of provision are met. If we by agree by
SCs reasoning that a woman cannot be charged for rape being a woman, but in present case

2 Sec. 375: Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
******

3 Sec 376(2)(g) of Indian Penal Code 1860: Whoever commits gang rape shall be punished with
rigorous imprisonment for a term which shall not be less than ten year but which may be for life and shall
also be liable to fine.

4 S.34: Joint Criminal Liability- Acts done by several persons in furtherance of common intention.--
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 were done by him alone.

5 Explanation 1- Where a women's is raped by one or more in a group of persons acting in furtherance of
their common intention, each of the persons shall be deemed to have committed gang rape within the
meaning of this sub-section.

6 Ibid

7 AIR 1925 PC 1

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Priya Patel not even, slapped the victim on asking help and she also bolted the door from outside
which directly indicates that she facilitated the rape and her intention was that victim be raped.

This judgment has set a bad case law for the cases in future with similar facts. Just because of
literal interpretation of laws involved bench has failed to set good case law, judiciary has forgot
to play their role efficiently that is of interpreting the law in the fair sense and filling the lacunas
in law which are left by framers and created by changing time. Court has also been silent on the
point of Abetment for gang rape which was also one of the issues arose in this case.