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:-

•  First.-- Against her will.

•  Secondly.-- Without her consent.

•  Thirdly.-- With her consent, when her consent has been 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 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 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.

So the law recognizes only rape by a man; obviously a woman cannot rape or the law does not recognize rape by a woman. At least the Indian law does not.

Explanation I to Section 376(2) explains, 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.

So when there is a gang rape each of the persons in the gang is liable for punishment - it is not necessary that all of them should have raped.

Now look at the facts of the present case.

Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up from the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house, and left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC the appellant, was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC. The revision filed before the High Court questioned legality of the charge framed so far as the appellant is concerned, relatable to Section 376 (2)(g) IPC. It was contended that a woman cannot be charged for commission of offence of rape. The High Court was of the view that though a woman cannot commit rape, but if a woman facilitates the act of rape, Explanation-I to Section 376(2) comes into operation and she can be prosecuted for "gang rape".

The Supreme Court observed,

•  A bare reading of Section 375 makes the position clear that rape can be committed only by a man.

•  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.

•  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 surprising aspect of this case is, why did they book her for gang rape when they could have easily charged her with abetment and the punishment for abetment is the same as for rape itself? Do the policemen know as much of the IPC as our taxmen know about the tax laws?

Though women are not liable for punishment for rape in India, rape laws have undergone drastic changes in many countries.

Now in many countries, a woman may be convicted of raping a man, a man may be convicted of raping a man, and a woman may be convicted of raping another woman. Furthermore, a spouse may be convicted of rape if he forces the other spouse to have nonconsensual sex.

Is resistance necessary?

Earlier the judicial view was that Women who were raped were expected to have physically resisted to the utmost of their powers or the man would not be convicted of rape. A man would not be convicted of rape of a woman unless she had demonstrated some physical resistance. In the absence of physical resistance, courts usually held that the sex was consensual. But now the view is that the prosecution can prove lack of consent by presenting evidence that the victim objected verbally to the sexual penetration or sexual intrusion. Physical resistance in some rape situations presents a greater danger to the victim. It is now considered unfair to require physical resistance on the part of the victim if such resistance risks greater injury.

Maybe our laws also require some gender changes.

While in England a woman who forces a man to have sex cannot be prosecuted for rape; if she helps a man commit a rape she can be prosecuted for the crime. In fact they have a special Act for rape and related crimes called Sexual Offences Act 2003.

(See 2006 in 'Laws 4 You')