Both Men And Women Can Be Held Liable For Abetment To Rape Under Section 109 IPC: Madhya Pradesh High Court

The Madhya Pradesh High Court has held that woman and man both can be held liable for abetment to rape under Section 109 of the IPC and can be punished.

The Court was considering a Criminal Revision Petition under Section 397 read with Section 401 of Cr.P.C. against the order passed by an Additional Sessions Judge whereby the charges under Section 376 read with Sections 34, 190 and 506-II of IPC were framed against the Applicants.

The single bench of Justice Pramod Kumar Agrawal observed, "...a woman though cannot commit rape, but can still be held liable for abetment under Section 109 of IPC. “abetment is separate and distinct offence than rape” and if the act abetted is committed in consequences of the abetment, then the person i.e. man or woman abeting such crime is liable to be punished under Section 109 of IPC. Thus, woman and man both can definitely be held liable for abetment to rape under Section 109 of IPC and can be punished accordingly."

The Petitioner was represented by Advocate Pradeep Kumar Naveriya while the Respondent was represented by Government Advocate C.M. Tiwari.

Facts of the Case

In 2022, Prosecutrix lodged a report at the Police Station alleging that the co-accused lived in her neighbourhood, therefore, she had an acquaintance with him. In 2021, the co-accused came to her house and proposed marriage to her, which she agreed. On the day the Prosecutrix went to the house of the co-accused and gave her consent for marriage, the Applicants forcibly sent the Prosecutrix with co-accused and closed the door of the room where he made physical relation with the Prosecutrix. Later, they exchanged rings in a hotel and the Prosecutrix was assured of marriage and the co-accused again made physical relation on this pretext. Later, mother of Prosecutrix died due to cancer; thereafter Applicants refused to get the co-accussed married to the prosecutrix.

After committal of the case, an Application was filed under Section 227 of Cr.P.C. on behalf of the Applicants for discharging them from the case, but the same was dismissed and the trial court framed the charges against the Applicants under Section 376 read with Sections 34, 506-II and 190 of IPC which was assailed in this revision application.

Counsel for the Applicant argued that it was a love relationship and therefore no offence under Section 376 of IPC is made out against them and therefore, charges framed are liable to be set aside. Reliance was placed upon the decision of the Supreme Court in the case of Mahesh Damu Khare Vs. The State of Maharashtra. On the other hand, Counsel for the State submitted that there are specific allegation against the Applicants regarding abetment of rape and trial Court correctly passed the order.

Reasoning of Court

The Court referred to the Judgment of the Apex Court Omprakash Vs. State of Haryana (2015) to point out that even though a woman cannot be charged under Section 376 IPC, but can still be held liable for abetment under Section 109 of IPC as abetment is separate and distinct offence than rape.

"...I find there is no infirmity in the order passed by the trial Court. In my opinion, looking to the allegations made in the statements under Section 161 and 164 of Cr.P.C. by the prosecutrix, prima facie it seems that the applicants committed an offence under 376 r/w 109, 506 and 190 of IPC," the Court observed.

The order was accordingly modified the order.

Cause Title: Prashant Gupta And Others vs. The State of Madhya Pradesh & Others (2025:MPHC-JBP:13268)

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