Can women be liable for Rape or Gang-rape?

Priya Patel vs. State of M.P. and Ors. (12.07.2026 - SC) : MANU/SC/3038/2006

Case Note:
Indian Penal Code, 1860 - Section 376 (2) (g) with Explanation I-Rape-Whether a woman can commit rape?-Held, “no”-Whether a woman can be charged for offence of ‘gang rape’ under Section 376 (2) (g) read with Explanation I thereto?-Held, “no”-Expression “in furtherance of their common intention” appearing in Explanation I to Section 376 (2) (g)-Relating to intention to commit rape-A woman cannot be said to have intention to commit rape.

Section 376 (2), I.P.C. 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 I 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, I.P.C. 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, I.P.C. 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 I 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).

7. 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. We express no opinion in that regard.