Prayagraj: The Allahabad High Court observed that if a woman facilitates the act of rape, she can be prosecuted for the offence of 'gang rape' under Section 376 D of the Indian Penal Code in view of amended provisions.
Justice Shekhar Kumar Yadav, elaborating on the provisions of Section 375 (rape) and 376 (punishment for rape) of the IPC, as amended in the year 2013, rejected the plea that a woman cannot be prosecuted for the alleged commission of the offence of gang rape.
Court was hearing a plea by Sunita Pandey who was asked to face trial under Section 376 D and others
The court dismissed the application filed by one Sunita Pandey who challenged the order passed by an additional sessions judge to face trial under Sections 376D (gang rape), 212 (harbouring offender) of IPC in connection with the alleged rape case of a 15-year-old girl.
"A woman 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," observed the court while rejecting the plea of the woman applicant.
Court says ambiguous language of Section 376 D allows applicant to be prosecuted
Taking into account the facts of the case, the court, at the outset, noted that the argument that a woman cannot be prosecuted for gang rape is not correct as per the amended provisions of sections related to rape, which relates to the offence of rape.
The court observed that though it is clear by the non-ambiguous language of section 375 of IPC that a woman cannot commit rape as the section specifically states that the act of rape can only be done by a 'man' and not by 'a woman', the same is not the case with section 376D (gang rape) of IPC.
Incident happened in 2015, survivor confirmed Pandey's involvement
A minor was sexually assaulted in June 2015 and the girl's father filed an FIR against unknown persons the following month under sections 363 (punishment for kidnapping) and 366 (kidnapping, abduction or inducing woman to compel her marriage, etc.) alleging that someone had enticed his daughter aged about 15 years, and took her with him.
In her statement, the survivor had stated that Pandey was involved in the incident but she was not named in the charge sheet. Thereafter, the girl's father filed an application under section 319 CrPC for summoning the applicant and the court allowed the plea.
