Supreme Court of India
STATE OF RAJASTHANversusHEMRAJ & ANR.
- Citation
- 2009 INSC 616
- Decided
- 27 April 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
A woman cannot be convicted under Section 376(2)(g) IPC as rape is defined only for a man and common intention to commit rape cannot be imputed to a female.
Summary
The State of Rajasthan appealed against the acquittal of Hemraj and Kamla (a woman) on charges of gang rape under Section 376(2)(g) IPC. The trial court had convicted Hemraj under Section 342 IPC and held that Kamla could not be convicted under the gang‑rape provision. The High Court affirmed this view, finding insufficient evidence of Hemraj's presence and rejecting the possibility of convicting a woman under Section 376(2)(g). The Supreme Court examined whether the definition of rape in Section 375, which applies only to a man, and the deeming provision coupled with Section 34 IPC (common intention) could be extended to a female accused. It held that a woman cannot have the requisite intention to commit rape and therefore cannot be liable under Section 376(2)(g). Consequently, the appeal was dismissed.
Issues considered
- Whether a female can be held liable under Section 376(2)(g) of the IPC for gang rape.
- Whether the deeming provision and Section 34 IPC (common intention) can be applied to a woman in the context of gang rape.
Legislation cited
- Indian Penal Code, 1860s. 34, s. 342, s. 375, s. 376(2)(g)
- Juvenile Justice Acts. 2000
Subjects
rapegang rapeSection 376(2)(g) IPCcommon intentionSection 34 IPCgender liabilitycriminal lawIndian Penal Code
Judgment
[2009] 6 S.C.R. 1123
.
A
STATE OF RAJASTHAN
V.
HEMRAJ & ANR.
. __,
(Criminal Appeal No. 847 OF 2009)
APRIL 27, 2009
[DR. ARIJIT PASAYAT AND ASOK KUMAR
B
GANGULY, JJ.]
c
Penal Code, 1860 - ss.376(2)(g) Explanation 375 and
34 -- Female, whether liable to be convicted for rape -- Held:
In view· of definition of rape, holding a woman guilty of
committing rape is conceptually inconceivable -- Common
intention as occurring in Explanation to s. 376(2) is not D
applicable to a woman.
The questions for consideration in the present appeal
was whether a female was liable to be convicted uls
376(2)(g) IPC. E
Dismissing the appeal, the Court
HELD :1.1. 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 F
be said to have committed rape. Section 376(2) IPC
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-
A section (2)(g) provides that "whoever commits ·gang G
rape" shall be punished etc. The Explanation only
clarified 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
1123 H
1124 SUPREME COURT REPORTS (2009] 6 S.C.R.
A committed gang rape within sub-section (2). That cannot
make a woman guilty of committing rape. This is
conceptually inconceivable. [Para 7) (1128-8-D]
1.2. By operation of the deeming provision, a person
who has not actually committed rape is deemed to have
8
committed rape even if only one of the group in
furtherance of the common intention has committed rape.
"Gommon 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,
C 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
D 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 is that the act
.must be done in furtherance of the common intention to
E, 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. [Para 7) (1128-E-H; 1129-A)
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 8472 of 2009
From the Judgment & Order dated 9.1.2007 of the High
Court of Rajasthan in S.S. Criminal Leave to Appeal No. 99 of
G 2006.
V. Madhukar, Jayaendra Savada and Milind Kumar for the ·
Appellant.
lmtiaz Ahmed, Naghma lmtiaz and Equity Lex Associaties
H
STATE OF RAJASTHAN v. HEMRAJ & ANR. 1125
~
for the Respondent. A
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed by a B
learned Single Judge of the Rajasthan High Court, Jaipur
Bench dismissing the application for grant of leave to question
#. ·..J
correctness of the judgment of learned Additional District.
Sessions Judge (Fast track), No.2 Alwar.
3. Background facts in a nutshell are as follows:
c
Respondents were facing the trial for alleged commission
of offence punishable under Section 342 and 376(2) of the
Indian Penal Code, 1860 (in short the 'IPC'). PW1 was the
victim. The trial court noticed that it was the accused Chandan D
~
~ who committed rape on her. There was no allegation of rape
against the other accused persons namely Hemraj and Smt.
Kamla. The accused Chandan was facing trial under the
provisions of Juvenile Justice Act, 2000 (in short the 'Juvenile
Act'). E
The trial court as noted above held the accused Hemraj
guilty of offence punishable under Section 342 IPC and held
that the Accused Kamla cannot be convicted in terms of
Section 376 (2) IPC. The State filed an appeal questioning
F
acquittal of the respondent from the accusations relatable to
Section 376(2) IPC. The High Court held that so far as the
accused Hemraj is concerned his presence at the spot was
doubtful. In any event both the respondents cannot be held guilty
of offence punishable under Section 376(2) IPC.
G
~.
4. Learned counsel for the appellant-State submitted that
scope and ambit of Section 376(2)(g) and the explanation
appended thereto have been lost sight of by the High Court.
5. Learned counsel for the respondent on the other hand H
1126 SUPREME COURT REPORTS [2009] 6 S.C.R.
A submitted that the High Court rightly noted that the presence
of accused Hemraj at the alleged time of rape has not been
established. Additionally, a lady i.e. respondent No.2 cannot be
held guilty even in terms of the Explanation to Section 376 (2)(g)
of the IPC.
B
6. In order to appreciate rival submissions Sections 375
and 376 need to be noted. They so far as relevant read as
follows:-
"375. Rape
c
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:--
D First.-Against her will.
Secondly.-Without her consent.
Thirdly.--With her consent, when her consent has been
E obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly.--With her consent, when the man knows that he
is not her husband, and that her consent is given because
she believes that he is another man to whom she is or
F believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication
or the administration by him personally or through another
G of any stupefying or unwholesome substance, she is
unable to understand the nature and consequences of that
to which she gives consent.
Sixthly.-With or without her consent, when she is under
sixteen years of age.
H
STATE OF RAJASTHAN v. HEMRAJ & ANR. 1127
[DR. ARIJIT PASAYAT, J.]
Explanation.--Penetration is sufficient to constitute the A
sexual intercourse necessary to the offence of rape.
Exception.-Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape.]
376. Punishment for rape B
(1) Whoever, except in the cases provided for by sub-
section (1), commits rape shall be punish.ed with
imprisonment of either description for a term which shall
not be less than seven years but which may be for life or c
for a term which may extend to ten years and shall also
be liable to fine unless the women raped is his own wife
and is not under twelve years of age,· in which cases, he
shall be punished with imprisonment of either description
for a term which may extend to two years or with fine or
0
with both:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years. E
(2) Whoever,--
xx xx xx xx xx
(g) commits gang rape, F
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be
for life and shall also be liable to fine:
Provided that the court may, for adequate and G
special reasons to be mentioned in the judgment, impose
a sentence of imprisonment of either description for a term
of less than ten years,
H
1128 SUPREME COURT REPORTS [2009] 6 S.C.R.
A Explanation /.--Where a woman 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.
B x xx xx xx xx"
7.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
C 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
o 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
E Explanation only indicates that when one or more persoAs 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
F even if only one of the group in furthe;·ance 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"
G 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
H
STATE OF RAJASTHAN v. HEMRAJ & ANR. 1129
[DR. ARIJIT PASAYAT, J.]
sine qua non for bringing in application of Section 34 IPC that A
the act must be done ih 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 B
forthe appellant is right in her submission that the appellant
cannot be prosecuted for alleged commission of the offence
punishable under Section 376(2}(g).
8. The appeal is without merit, deserves dismissal, which C
we direct.
K.K.T. Appeal dismissed.
\
]
J
'
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