In a significant ruling clarifying the scope of rape abetment under Indian law, the Madhya Pradesh High Court at Jabalpur, while deciding Criminal Revision No. 4796 of 2023, modified the charges against two accused family members of a rape accused. The Court ruled that while a woman cannot be charged with rape, she can be prosecuted for abetting the offence under Section 109 of the Indian Penal Code (IPC).
The judgment was delivered by Justice Pramod Kumar Agrawal in the case of Prashant Gupta and Others vs. The State of Madhya Pradesh and Others.
Background of the Case
The case emerged from an FIR registered on 21.08.2022 at Chhola Mandir Police Station, District Bhopal. The prosecutrix alleged that Abhishek Gupta, the son of applicant no. 2 and brother of applicant no. 1, was in a romantic relationship with her. On 12.04.2021, he proposed marriage and subsequently, multiple incidents of alleged non-consensual physical relations occurred at his residence and at a hotel, allegedly with the involvement or knowledge of his mother and brother (the applicants).
The FIR was initially registered under Sections 376, 376(2)(n), 190, 506-II, and 34 of IPC. The prosecution alleged that the applicants had locked the prosecutrix in a room with Abhishek Gupta where he committed rape, and they normalized and enabled repeated such acts even after the first incident.
A charge sheet was filed, and the trial court, by order dated 22.08.2023 in Sessions Trial No. 791/2022, framed charges under Section 376 read with 34, 506-II and 190 of IPC against the applicants. The accused moved the High Court under Sections 397 and 401 of Cr.P.C. seeking to quash these charges.
Legal Issues and Arguments
- Whether charges under Section 376 r/w 34 IPC could be framed against the applicants (including a woman).
- Whether the material on record, including statements under Section 161 and 164 Cr.P.C., made out a prima facie case for abetment.
Advocate Shri Pradeep Kumar Naveriya, appearing for the applicants, argued that:
- The prosecutrix was educated and in consensual relationship with the co-accused.
- The names of the applicants were absent in the original FIR.
- The allegations against the applicants were afterthoughts and lacked merit.
He relied on the Supreme Court’s decision in Mahesh Damu Khare vs. State of Maharashtra (SLP (Crl.) No.4326/2018).
Government Advocate Shri C.M. Tiwari, appearing for the State, opposed the revision. He argued that:
- At the charge-framing stage, the test is whether a prima facie case exists.
- Specific allegations of abetment were made against the applicants in the prosecutrix’s statements.
- The trial court correctly applied the law.
High Court’s Analysis and Observations
The High Court noted that Section 376 IPC begins with “a man”, thereby making it clear that only a male can commit rape. However, the Court emphasized that this does not preclude women from being held guilty of abetment under Section 109 IPC.
Quoting the Supreme Court in Om Prakash vs. State of Haryana [(2015) 2 SCC 84], the Court reiterated:
“Intentional aiding of the offence is covered by the third clause mentioned in Section 107 IPC. Thus, both man and woman can be held liable for abetment to rape under Section 109 of IPC.”
The Court rejected the applicability of Mahesh Damu Khare, stating that the facts were distinguishable.
On the issue of omission of the applicants’ names in the FIR, the Court noted:
“No doubt, in the FIR, names of present applicants are not mentioned, but in the statements of the prosecutrix recorded under Section 161 and 164 Cr.P.C., specific allegations have been leveled…”
The Court held that prima facie a case of abetment was made out, and at the charge-framing stage, deeper appreciation of evidence is unwarranted.
Final Decision
The High Court modified the impugned order as follows:
- The charge under Section 376 read with 34 IPC against the applicants was set aside.
- The trial court was directed to frame charge under Section 376 read with 109 IPC instead.
- Charges under Sections 506-II and 190 IPC remained intact.
“In my opinion, looking to the allegations made… prima facie it seems that the applicants committed an offence under 376 r/w 109, 506 and 190 of IPC.” — Justice Pramod Kumar Agrawal
