Madhya Pradesh High Court: In a Criminal Revision filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (CrPC) against Additional Sessions Judge’s order wherein charges were framed against them under Sections 376 read with 34, 190, and 506-II of Penal Code, 1860 (IPC), a single-judge bench of Pramod Kumar Agrawal, J., modified the order and directed the trial court to frame charges under Section 376 read with 109 IPC instead of Section 376 read with 34 IPC, while keeping the remaining charges intact.
“Woman and man both can definitely be held liable for abetment to rape under Section 109 of IPC.”
In the instant matter, the prosecutrix lodged a report on 21-08-2022 at Police Station Chhola Mandir, District Bhopal Dehat, alleging that co-accused had proposed marriage to her on 12-04-2021, to which she agreed. On 08-07-2021, she visited co-accused’s house and informed his mother (applicant 2) and brother (applicant 1) about her consent for marriage. The applicants forcibly sent the prosecutrix with co-accused, who then engaged in physical relations with her inside a closed room.
On 02-08-2021, at New Shikha Hotel, co-accused and the prosecutrix exchanged rings, and co-accused again established physical relations with her under the assurance of marriage. When the prosecutrix informed the applicants about the incident, they dismissed her concerns and stated that premarital relations are common nowadays.
Following the death of the prosecutrix’s mother on 29-12-2021, the applicants refused the marriage proposal, prompting the prosecutrix to file a police complaint under Sections 376, 376(2)(n), 190, 506-II, and 34 of IPC. After the investigation, a charge sheet was filed, and the applicants moved an application under Section 227 of CrPC for discharge, which was dismissed, leading to the framing of charges by the trial court.
The applicants contended that the prosecutrix in her initial complaint did not mention the names of the present applicants and the names of the applicants appeared only in the prosecutrix’s statements recorded under Sections 161 and 164 of CrPC, indicating that the allegations were an afterthought. It was contended that the trial court committed an error in framing charges under Section 376 read with 34 of IPC.
However, the prosecution argued that at the stage of framing charges, the Court only needs to see whether a prima facie case is made out. It was contended that the charge sheet contained sufficient material to proceed with the trial, and the allegations in the prosecutrix’s statements under Sections 161 and 164 CrPC clearly pointed to the involvement of the applicants. It further contended that the applicants had actively abetted the offense of rape, making them liable under Sections 109 and 376 of the IPC.
The Court asserted that that only a man can commit rape under Section 376 IPC, but a woman can be held liable for abetment under Section 109 IPC. The Court referred to Omprakash v. State of Haryana, (2015) 2 SCC 84, where the Supreme Court held that abetment of rape is a distinct offense punishable under Section 109 IPC.
The Court noted that the statements under Sections 161 and 164 CrPC revealed sufficient material to frame charges against the applicants. The Court referred to State of M.P. v. S.B. Johari, (2000) 2 SCC 57, where it was held that at the stage of framing of charges, the Court is not required to assess the sufficiency of evidence for conviction but only whether a prima facie case exists.
The Court modified the order and directed the trial court to frame charges under Section 376 read with 109 IPC instead of 376 read with 34 IPC, while keeping the remaining charges intact.
[Prashant Gupta v. State of M.P., Criminal Revision No. 4796 of 2023, Decided on 18-03-2025]
Advocates who appeared in this case:
Shri Pradeep Kumar Naveriya, Counsel for the Applicants
Shri C.M. Tiwari, Government Advocate, Counsel for the Respondent No. 1/State
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