Difference between 375 & 376

The Supreme Court, apparently, had a different view. The present appeal was allowed. The apex court held that, after a reading of Section 375 of the IPC, rape may be committed only by man. The explanation to Section 376 (2) merely indicates that that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group must be deemed to have committed gang rape.

The rule is based on the principle of common intention as provided in section 34 of the IPC. Common Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common intention which in such a case may be common intention to rape. Since such intention may not exist with a woman, as given in the definition, a woman may not be held liable for gang rape as well.

A contention was raised by the counsel of the state that the woman may be held liable for Abetment as under section 108 of the IPC. The court on this said that such contention should have been raised in the trial court or in High Court, but it may not be done here.

A person when instigates a crime or assists in its pursuance may be held liable for Abetment of crime. Even in the present matter if it may have been taken up, then appellant may have been convicted on the charge of abetment of rape but then a new issue may have come up. This may have lead to a discrimination on basis of sex with a man is deemed to have common intention and therefore must be held liable for rape but on the other hand a woman, doing the same act as the man was, might be liable for abetting the crime. This being on the grounds of the fact that it is conceptually inconceivable, as in accordance with the meaning of the word rape, as given in Section 375 of the IPC.