Sreejith Cherote, Advocate, Calicut.

An offence is an offspring of a guilty mind and action (actus reus and mens rea).The physiological factor is an important element in judging the action as an offence or not. Commission of an offence, ancillary action to commit it, and joint participation to commit an offence has been legally classified by respective definitions to befit different punishments. Several persons may joint hands to commit a criminal offence, each one of them contributing in varying proportions, in a carefully orchestrated manner designed to achieve a particular result. We know that section 34 of the Indian penal code was drafted into statute book to take within its ambit the joint action of deferent persons to commit an offence casting the responsibility of the offence on all persons who has participated in the offence with a common intention. Now the latest decision of Supreme Court reported in AIR 2006 SC2639 has provoked this prick of thought which has crystallised into this article.

Priya Patel Vs State of Madhya Pradesh and another. (AIR 2006 SC 2639)

Factual matrix of the case is that, the prosecutrix, a sports personnel was taken by the accused, husband of the appellant in the above mentioned case, to his house on some false pretext and committed rape on her. At the time of committing the offence, the appellant, who is the wife of the accused, was there .The prosecutrix requested the appellant to save her. Instead of saving her appellant slapped her, closed the door of the house and left the place of incident. The appellant was charged for the offence under section 323 and 376(2) (g) of the Indian penal code. Reversing the order of conviction of the appellant the honourable Supreme Court acquitted the appellant holding that it is conceptually inconceivable for a women to commit rape and she cannot be prosecuted for a an offence under section 376(2) (g) of the Indian penal code, by applying the doctrine of joint liability as contemplated under section 34 of the Indian penal code and also as per Explanation1 to section 376(2) (g).

The reasoning applied by the honourable Supreme Court is that, a woman cannot share a common intention with other person to commit gang rape. Basis of this view, being the physical incapacity of the women to commit rape.

The point of disagreement with the aforesaid view of the honourable Supreme Court starts with the interpretation of section 34 and Explanation 1to section 376(2) (g) given in the above mention case. The ambit of the sections has been restricted to acts; a person is physically capable of doing, which interpretation doesn’t seem to be in tune with the spirit of section 34 of the Indian penal code.

If we analyse the subtle spirit of 34 of the penal code, we can see that two elements are essential. One is participation and another intention. There is no dispute regarding the first one, but magnifying our thought on the second aspect that is the “intention” to commit an offence, we reach a point of introspection as to idea conveyed in the word “Intention”. We know that to attract section 34 several accused persons should have a “common intention”, which should be anterior in point of time. Now the chaos of thoughts begins while try to fix a meaning to the term “intention”. What is the exact nature of idea conveyed in the word intention? .The difficulty is to choose between two equally qualified choices inherent in the word “Intention”,

1) Subjective intention and
2) Objective intention.

If choose the first one I.e., the subjective intention, then needless to say that an intention to commit an offence can be attributed to an offender if only he/she is physically capable of committing that particular offence. E.g. A women cannot commit a legally defined rape as she is biologically incapable of committing the same as per definition of rape under section 375 of the Indian penal code. This one seems to be balanced and doubtless.

When we consider the second one I.e., the objective intention, then question is whether the intention to commit an offence is Physiological or psychological factor. A person may intent to achieve a particular act, which is an offence by joining hands with others having the same intention. If we judge it subjectively he/she must be in a position to physically commit an offence. But if we judge it objectively, then even if physically incapable of committing the offence by self, if he/she has participated in the offence with others with the intention of achieving a particular object, then also section 34 of the penal code is attracted. In objective intention the psychological factor supersedes devoid of any physical criteria.

If we further analyse section 34, it can be seen that, the section is set in the background of common intention, which is the essence of it, and there should be an act constituting an offence. “Intention” is physiological factor, having a subjective seat, but its realisation is objective. A person intents to commit an offence, he/she joints hands with other persons having the same intention for the purpose of executing his intention. When it comes to the execution of the act the object of the person assumes importance which is to execute the act indented. The said intention is uninfluenced by any biological criteria.

When we apply the aforesaid reasoning, to the facts of the case in hand we can see that the wife of the accused has actively participated in the offence, common intention of both of them is to see that rape is committed .Now the crucial question is, whether it is necessary for the deeming provision inbuilt in section 34 or Explanation1 to section 376(2) (g) to apply that, each individual should be physically capable of committing the offence, or is it sufficient enough that the object of the offender is achieved.

About deeming provision.

If we observe what is patent and latent in section 34 or Explanation1 to section 376(2) (g), there is no iota of doubt that a personal physical ability of the offender to commit the offence is not a criterion to trigger the deeming provision in 34.This view is more corroborated when we dig out the essence of the deeming provision. A deeming provision is a legal fiction by which responsibility is fixed for a particular act even if factually inconceivable. It is well accepted principle of law that section 34 is a fully potent constructive liability charged by a deeming provision to presume liabllity for an offence done by several persons with a common intention. The special feature of the deeming provision being its peculiarity to presume certain things, even though factually impossible. To clarify further, it is presumed that a person has committed an offence even though he has not actually done it, if he had participated in the commission of the offence with other persons having common intention. The important point is that the act constituting an offence need not be committed by the person individually, or acts of several persons, but the final act being the cumulative result of all the acts. The deeming provision is designed to apply in cases were the final cumulative result has been achieved of the common intention of two or more persons acting in concert. Individual role is restricted to participation without a qualification criterion of physical ability.

It is true that the section 375 of the penal code, defines rape with opening words, prescribing genetic quality that “A Man is said to commit “Rape”, thereby restricting the scope of the definition only to man. But it is also true that the definition defines the offence and deeming provisions decides its applicability. When we evaluate 34,375 and Explanation1 to section 376(2) (g), of the penal code for discovering a logic to the legislative intent, we can see that when it comes to the applicability of the definition, there is no discrimination in the form of a genetic quality. That is the reason why, there is no qualifying words either in 34 or in Explanation1 to section 376(2) (g) of the penal code. In both these section word used is “Persons” which term includes both man and women. This activity of choosing of words by the legislature cannot by sidelined by an argument that it is a coincidence, as 34 is a general rule of evidence applicable to all section, because even in the case of Explanation1 to section 376(2) (g) which is a specific deeming provision applicable to cases of gang rape, the word used is “Persons”. Hence a rational interpretation scales in favour of the view that the legislature has consciously exercised its wisdom in incorporating the word “Persons” in Explanation1 to section 376(2) (g) and has included in its ambit both man and women even in its application in cases of gang rape.

Applying the aforesaid reasoning to the issue in hand we can see that the appellant has participated in the offence of rape with the intention to see that rape is committed on the prosecuterix. The intention she shared with her husband was that rape is committed on the prosecuterix, which can be safely inferred from circumstances. The question whether she herself was capable of committing rape was immaterial for deciding the applicability of section 34 of the Indian penal code. To agree with the honourable Supreme Court is a constitutional mandate, to disagree with honourable Supreme Court is a constitutional privilege and power of correction being a self evolved virtue and a premier quality of the judicial conscience. And this point of error is a humble contribution from a member of a community ever vigilant to maintain the majesty of the tower of justice.

Indian Penal Code. ---Dr.Hari Singh Gaur’s, NELSON’S.
Barendra Kumar Gosh Vs King --- A.I.R.1925. P.C. 1.
Supreme Court on Words and Phrases—Goyle’s

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