Arijit Pasayat, J. – Leave granted.

2. Can a lady be prosecuted for gang rape is the interesting question involved in this appeal.

3. Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court holding that the charge framed against the appellant under Sections 323 and 376(2)(g) of the Indian Penal Code, 1860 (in short ‘IPC’) is in order.

4. Background facts in a nutshell are as follows :

5. Complaint was lodged by the prosecutrix alleging that she was returning by Utkal Express after attending a sports meet. When she reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused appellant) met her at the railway station and told her that her father has asked him to pick her up form the railway station. Since the prosecutrix was suffering from fever, she accompanied accused Bhanu Pratap Patel to his house. He committed rape on her. When commission of rape was going on, his wife, the present appellant reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant slapped her, closed the door of the house and left place of incident. On the basis of the complaint lodged, investigation was undertaken and charge-sheet was filed. While accused Bhanu Pratap Patel was charged for offences punishable under Sections 323 and 376 IPC the appellant, as noted above, was charged for commission of offences punishable under Sections 323 and 376(2)(g) IPC. The revision filed before the High Court questioned legality of the charge framed so far as the appellant is concerned, relatable to Section 376(2)(g) IPC. It was contended that a woman cannot be charged for commission of offence of rape. The High Court was of the view that though a woman cannot commit rape, but if a woman facilitates the act of rape. Explanation-I to Section 376(2) comes into operation and she can be prosecuted for “gang rape”.

6. 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 Explanation-I to Section 376(2) IPC has no relevance and/or application.

7. 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.

8. In order to appreciate rival submissions Sections 375 and 376 need to be noted. They so far as relevant read as follows :

“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 :

First. – Against her will.

Secondly. – Without her consent.

Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly. – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he 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 him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. – With or without her consent, when she is under sixteen years of age.

Explanation. – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

376. Punishment for rape. – (1) Whoever, except