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DR.

RAM MANOHAR LOHIYA NATIONAL


LAW UNIVERSITY, LUCKNOW

CRIMINAL LAW - I

Final Draft
On

Sexual Offences relating to Human Body:

A Case comment on priya patel v. state of M.P.


(2006) 6 Scc 263

Acknowledgement
Firstly, I am thankful to respected Dr. K.a. Pandey for
giving me such an excellent opportunity to show my skills through
my project and enhance my knowledge on this topic and case.
The project is the result of extensive ultrapure study,
hard work and labour. This was possible only with the heartiest
support of my subject teacher. I wish to acknowledge that in
completing this project I received help of my friends Shubham
Singh, Vishal Sharma, Chandan Maheshwari, Shubham Verma, and
others. I wish to acknowledge that in completing this project I had
full support of my library staff. This project would not had been
completed without the help of my universitys library Dr. Madhu
Limaye library that had various quality books on the chosen topic
and the universitys internet facility that helped me in making my
research a success.

Contents
Case Name and Citation..................................................................................................................4
Strength of the Bench......................................................................................................................4
Judgement........................................................................................................................................4
Law on the Point..............................................................................................................................4
Statement of Facts............................................................................................................................4
Procedural History...........................................................................................................................5
Arguments........................................................................................................................................5
Ratio.................................................................................................................................................5
Decision or Law laid down..............................................................................................................5
Personal Comments.........................................................................................................................6

Case Name and Citation -Sexual Offences relating to Human Body:A Case comment
on Priya Patel v. State of M.P.
(2006) 6 SCC 263

Strength of the BenchDivisional Bench, comprising Dr. Arijit Pasayat and S. H.


Kapadia, JJ.

Judgement Unanimous Judgment


Law on the Point -The laws involved in this case were related to section 323 1 and section
376 (2) (g)2 of the Indian Penal Code, 1860.

Statement of FactsIn the case Priya Patel v. State of M.P. [(2006) 6 SCC 263],after
attending a sports meet, prosecutrix brought back by Utkal express and arrived at her terminus
at Sagar. Bhanu Pratap Patel (husband of accused appellant) suddenly reached the railway
station by that time and he told her that her father has sent him to pick her up. The prosecutrix
was badly tired and suffering from fever also and hence she joined him. Instead of taking her to
her house, he took her to his house. After arriving at his house, Bhanu Pratap committed rape on
the prosecutrix and by that time his wife Priya Patel (Accused appelant) arrived at that place. The
prosecutrix asked for help to Priya Patel to save her or forbidding her husband to rape her but
instead of saving the prosecutrix she slapped her and went away from that place and leave them
1 Section 323 of Indian Penal Code, 1860 Whoever, except in the case provided for by section
34, 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.
2 Section 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 years but which
may be for life and shall also be liable to fine: Provided that the court may, for adequate and
special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either
description for a term of less than ten years.

alone at that place. The prosecutrix then filed a complaint and on the basis of that complaint
Bhanu Pratap was charged under sections 323 and 376 of IPC, and Priya Patel was charged under
sections 323 and 376(2) (g) of IPC. Against the order of the trial court Priya Patel filed a revision
petition before the High Court challenging the legality of the charges framed against her. The
High Court asserted the view that, a woman cant commit rape but when a women facilitates the
commission of rape, she can be prosecuted for gang rape under section 376(2) (g) IPC.
Aggrieved by the decision of the High Court, Priya Patel preferred an appeal before the Supreme
Court of India.

ProceduralHistoryIn this case, Bhanu Pratap(husband of accused appellant) picked the


prosecutrix to his house by misleading her. He was committing rape on prosecutrix, after some
time Appellant (Priya Patel) reached that place and prosecutrix asked her for help, instead of
helping the dupe or forbidding her husband to rape the women, she slapped the victim, went
away from the room and left them in that room alone. On the basis of these facts, the complaint
was registered, investigation was undertaken and charge-sheet was filed. On the basis of that
complaint, Bhanu Pratap was charged under sections 323 and 376 of IPC, and Priya Patel was
charged under sections 323 and 376(2) (g) of IPC. The High Court was of the view that though a
woman may not commit rape, but if a woman facilitates the act of rape, Explanation-I to Section
376(2) comes into operation and she may be prosecuted for gang rape.

Arguments According to learned Counsel for the appellant the High Court has clearly
missed the essence of Sections 375 and 376 IPC. It was submitted that as the woman cannot
commit rape, she cannot certainly be convicted for commission of "gang rape", and ExplanationI to Section 376 (2) IPC has no relevance and/or application.
Per contra, learned Counsel for the State supported the order. Additionally, it was
submitted that even if for the sake of argument it is conceded that the appellant cannot be
prosecuted for commission of offence punishable under Section 376(2) (g), she can certainly be
prosecuted for commission of the offence of abetment.

Ratio 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.

Decision or Law laid down 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 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 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. 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 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
alleged commission of the offence punishable under Section 376(2) (g).

Thus it is decided that a woman can neither be prosecuted for gang rape nor charged for
abetment. So, there the appeal was allowed and conviction for gang rape and charge for abetment
be set aside.

Personal CommentsPriya Patel vs. State of Madhya Pradesh is the case related to
Sexual Offences Relating to Human Body. In this case, an interesting question arose in front of
Supreme Court whether a women can be prosecuted for gang rape or not. There is one more case
where the same question arose and that case is State Govt. V. Sheodayal 3 where the M.P High
court opined that modesty of a woman can be outraged by another women. But apex court in
Priya Patel V. State of M.P and another held that it is inconceivable that women can rape another
woman. Actually in this case victim asked for help when husband of appellant was committing
rape on her. Appellant reached on the spot, instead of helping the victim or forbidding her
husband from raping the women, slapped the victim, closed the door from outside and left that
place. She was charged for committing gang rape under sec. 376 (2) (g) of IPC 1860. Trial court
as well as Madhya Pradesh high court maintained the charge but supreme court, relaying upon
biological facts, construed statutory provision in favour of the woman and held that a woman
cannot be charged for gang raping another women under section 376 (2) (g) of IPC 1860.
Apex court in this case also discussed Sec. 376 (2) (g) with Sec. 34 4 and the appeal was allowed
by Supreme Court. Now the question resides whether a women can have a common intention of
raping a girl or not. The expression in furtherance of their common intention as mentioned in
the Explanation 1 of Section 376(2) (g) of IPC relates to intention to commit rape, which is not
possible by a woman in this practical world.But if we go through the case Sakshi vs. Union of
India5 where a petition was filed. The main relief claimed in the writ petition arc as under:
Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring
inter alia that "sexual intercourse" as contained in Section 375 of the Indian Penal Code shall
31956 Cr LJ 83 M.P.
4 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.
5AIR 2004 SC 3566

include all forms of penetration such as penile/vaginal penetration, penile/oral penetration,


penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration.
In the Judgement, it was also said The suggestions made by the petitioners will advance
the cause of justice and are in the larger interest of society. The cases of child abuse and rape are
increasing at alarming speed and appropriate legislation in this regard is, therefore, urgently
required. We hope and trust that the Parliament will give serious attention to the points
highlighted by the petitioner and make appropriate legislation with all the promptness which it
deserves.
In 2006, National Commission for Women also recommended few amendments to the
laws relating to rape and related provisions in which few changes 6 were proposed in Indian Penal
Code, 1860.
In my opinion, Priya Patel vs. State of Madras is not a good case law because the Supreme Court
remains silent on the issue of whether a woman, who facilitates rape, can be charged for
abetment. If we replace the word man with person then it will be possible to show that a
6Sexual Assault: Sexual assault means (a) The introduction (to any extent) by a man of his penis, into the vagina
(which term shall include the labia majora), the anus or urethra or mouth of any woman or child.
(b) The introduction to any extent by a man of an object or a part of the body (other than the penis) into the
vagina(which term shall include the labia majora) or anus or urethra of a woman.
(c) The introduction to any extent by a person of an object or a part of the body (other than the penis) into the
vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) Manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include
labia majora) anus or the urethra of the offender by any part of the child's body;
In circumstances falling under any of the six following descriptions:
Firstly Against the complainant's will.
Secondly Without the complainant's consent.
Thirdly With the complainant's consent when such consent has been obtained by putting her or any person in
whom the complainant is interested, in fear of death or hurt.
Fourthly With the complainant's consent, when the man knows that he is not the husband of such complainant and
that the complainant's consent is given because the complainant believes that the offender is another man to whom
the complainant is or believes herself to be lawfully married.
Fifthly With the consent of the complainant, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by the offender personally or through another of any stupefying or
unwholesome substance, the complainant is unable to understand the nature and consequences of that to which such
complainant gives consent.
Sixthly With or without the complainant's consent, when such complainant is under eighteen years of age.
Provided that consent shall be a valid defence if the complainant is between sixteen years and eighteen years of age
and the accused Person is not more than five years older.

women can also commit rape. After the new amendment in Section 375 7 of IPC, the definition of
rape has become broader. IPC is gender discriminatory on the rape law because according to it,
only a man can commit a rape. Criminal law (amendment) ordinance 2013, made the rape laws
gender neutral for 3 months but again the rape laws became gender discriminatory. Rape laws
should be gender neutral.

A man is said to commit rape if he Penetrates his penis, to any extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or
b) Inserts, to any extent, any object or any part of the body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any other person; or
c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, the urethra, anus or
any part of body of such woman or makes her to do so with him or any other person; or
d) Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other
person,
Under the circumstances falling under any of the following seven description:Firstly Against her will.
Secondly Without her consent.
Thirdly With her consent when such consent has been obtained by putting her or any person in whom she is
interested, in fear of death or hurt.
Fourthly With her consent, when the man knows that he is not the husband of such she and that her consent is
given because she believes that the offender 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 the offender personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which such she gives consent.
Sixthly With or without her consent, when she is under eighteen years of age.
Seventhly When she is unable to communicate consent.

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