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 IV 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

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 A BRIEF INTRODUCTION

PriyazPatel 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 committing the rape of prosecutrix, later on Appellant reached on the spot, slapped the
victim and bolted the door from outside instead of helping the victim or preventfher husband
from raping thetwomen and left thezscene. On theZbasis of the complaintZlodged, investigation
was undertakenZand charge-sheet wasZfiled. AccusedZwas charged for the offence of rape
under Sec 376 IPC along with causing hurt under Section 323 of IPC . The appellant lady was
charged for the offence of gang rape under Sec 376 (2)(g) of IPC. View taken by the High court
was that thoughAwomen cannot commit rapeXbut if a women facilitatesZthe act of rape then as
per ExplanationZ1 of sec 376Z(2)Z(g) comesZinto operation and she can be prosecuted for
gang rape. But theZapex Court was of differentZview that theZlanguage of sub section (2) (g)
of sec 376 which providesZthat whoeverZcommits gang rape shall be punished etc. The
explanationZonlyZclarifiesZthat when a woman is raped by one or moreZin a group or person
shall be deemed to have committedZgangZrape within subZsectionZ(2) to sec 376 IPC and
therefore cannotZmakeZa womanZguiltyZofZcommittingZoffence of rapeZbecause This is
conceptuallyZinconceivable. The explanationZdoes no make it clear it only indicatesZthat when
one or more personZact in furtheranceZof their common intentionZto rape a woman each person
of the groupZshall beZdeemed to committed gangZrape.

FACTS OF THE CASE

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In the case of Priya Patel v State of M.P1, a complaint was lodgedZby the prosecutrix,ZShe
returning by UtkalZexpress after attendingZa sports meet as sheZ was a sports person, she
reached her final destination in Sagar, alleged that when she was returning the accused, Bhanu
Pratap Patel (The husband of Priya Patel, the appellant-Zaccused), met prosecutrix at railwayZ
Zstation, told her that her father has askedZhim to pick her from the station as she wasZnot well.

Prosecutrix accompanied the accused to his house where he tried to rapeZher. WhenZshe
shouted and screamed then her voice has been heard by Priya Patel as she came there on the
house. The interesting fact in the case was that, when Priya Patel reached on spot then
prosecutrix requested her to save her but instead of helping her, the accused-appellantZ slapped
her and left from the placeZof the incidentZ.

OnZthe basis of the lodgedZcomplaint by the victim, investigationZwasZundertakenZand charge

sheetZwasZfiled for the same. 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
the offence of gang rape under sec 376 (2)(g) of IPC. The view taken by the high court was that
although a women cannot commit rape but if a woman facilitatesZthe act of rape then sec 376
(2) (g) come into force which provides that whosoever commits gang rape shall be punished.

LAW ON THEHPOINT

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.

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AIR 2006 SC 2936
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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 women be charged for gang rape?

Whether a womanZwho facilitates rape, can be charged for abetment?

JUDGEMENT

The Supreme Court given a Unanimous Judgement delivered 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 sectionZitself providesZas toZwhen a man canZbe saidZtoZhave
committedZrape.

Section 376(2)ZmakesZcertainZcategoriesZofZseriousZcasesZofzrape aszenumerated 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. TheZExplanation only
make it clear that when a woman is raped by one or more in a group of persons acting in
furtherance of their common intention each person shall be deemed to have committed gang
rape within this sub-section (2). That cannotZmakeZaZwomanZguiltyZofZcommitting the
offence of rape. This isZconceptuallyZinconceivable. 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 ByZoperationZofZthe

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deemingZprovision, a personZwhoZhasZnotZactuallyZcommittedZrape isZdeemedZtoZhave
committedZrapeZevenZifZonlyZoneZofZtheZgroupZin furtherance of the common intention
has committed rape.

"Common intention" is dealt under sec. 34 of IPC, it states that 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 inZconcertZandZnecessarilyZpostulates aZpre-arrangedZplan, a priorZmeeting of minds
and an element ofZparticipationZinZaction. The acts may be differentZand vary inZcharacter,
butZmust beZactuated byZthe sameZcommon intention, which is different from same intention
or similarZintention. 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 allegedZcommissionZof the offence punishable under Section 376(2)(g). The
residual question isZwhetherZshe canZbeZchargedZforZabetment. 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

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 IPC2. SC is also of the view that
Priya Patel (accused-appellant) cannot made liable for offence of gang rape under S.376 (2)(g)
of IPC3 while reading with S.344 of IPC because in Explanation I5 of 376 which makes it clear

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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:- ******
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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.

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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
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.

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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.
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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
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AIR 1925 PC 1