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Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

40. The question that arises in the present case is whether A-1 can be accused of committing „gang rape „or even abetting the commission of „gang rape‟. The others who committed rape upon PW-1 were not named or described by her throughout. Therefore, the prosecution was clearly not able to establish who the „others‟ were who had subjected PW-1 to gang rape. What is, however, evident from the consistent version of PW-1 is that she was subjected to rape on more than one occasion by A-2. Her allegation is that A-1 abetted the commission of rape on her by A-2.

"A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376 (2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section (2) (g) provides that "whoever commits 'gang rape" shall be punished etc. The Explanation only clarifies 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 within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. 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 one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their 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. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2) (g)."

42. What emerges clearly from the above analysis is that a woman cannot be held guilty of committing rape or gang rape under Section 376 (2) (g) IPC. Explanation 1 to Section 376 (2) IPC envisages one or more male person acting "in furtherance of their common intention to rape a woman". A woman cannot, according to the Supreme Court, be said to share a common intention to commit rape on another woman.

43. This being the legal position qua gang rape, in the present case unless it is clearly established by the prosecution that apart from A-2 there was one more man involved, who was named and sent up for trial for the commission of the offence, it would not be safe to conclude that the offence committed was one of gang rape. The prosecution has not been able to prove that A-1 did any act by which it could be said that she shared a common intention with A-2 as far as the commission of rape of PW-1 was concerned, much less as far as the commission of gang rape is concerned. The specific statement in the deposition of PW-1 in the Court about A-1 doing nothing when PW-1 went to her with a complaint of being subjected to rape by A-2 is clearly an improvement as it finds no mention either in the previous statement to the police or even in the statement before the learned MM under Section 164 Cr PC.