Can a woman be prosecuted in a rape case? No, says the Supreme Court after Rajasthan government had challenged the acquittal of a woman in a rape case.

The apex court says a woman has no such intention and hence cannot be prosecuted for the said offence.

Interpreting Section 376 IPC which provides for punishing rapists, a bench of Justices Arijit Pasayat and Ashok Kumar Ganguly said since the legislation defines rape and punishment for a man, the same cannot be invoked against a woman.

Further section 34 (common intention) which is applied in cases like gangrape (IPC section 376 (2) cannot be applied against a woman as she would obviously have no intention to rape another woman,the apex court said.

"The expressions 'in furtherance of the common intention' as appearing in the explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape," the apex court observed.

The bench passed the interesting ruling while dismissing the appeal filed by Rajasthan government challenging the acquittal of a woman in a rape case.

It was the case of the prosecution that Chandan had committed the rape of a girl in Rajasthan's Alwar district along with Hemraj and Kamala.

The Rajasthan government invoked Section 376 (2) gang rape against the trio. The Fast Track Sessions Court referred the accusation against Chandan to a Juvenile Justice Board as he was a juvenile, convicted Hemraj for the offence but held that Kamala cannot be prosecuted for the offence of gang rape.

The high court however, acquitted Hemraj of the charges and also concurred with the view of the fast track court that the allegation of gang rape cannot be sustained against Kamala. .

Aggrieved by the ruling, the state had filed the appeal in the apex court.

Concurring with the findings of the two courts, the apex court said the legislation itself provides an explanation that "when a woman is raped" by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape.

"The explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape.

"By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only of the group in furtherance of the common intention has committed rape," the bench explained.

But in the case of a woman there would be no intention to rape and hence the section cannot be invoked against her the bench said, dismissing the State's appeal.