JUDGMENT : 1. Lady accused-Kavitaben has challenged her conviction under section 376(I) read with section 34 of Indian Penal Code sentencing her for 10 years with fine and stipulation clause thereof as well as her conviction under section 363 and 366 of Indian Penal Code by way of preferring the present Criminal Appeal under section 374 of the Criminal Procedure Code 1973. 2. When the prosecutrix/victim along with her parents were engaged in piecemeal labour work on 24.4.2014, at that time, accused Bharat alluded the prosecutrix that she would be getting Rs.350/- labour and took her to Kamrej along with him and his wife. Thereafter, she was taken to Chotila, Rajkot and Junagadh and on 28.4.2014, she was returned to her parental home at Chamardi. It is alleged that when she was taken into forest area of Junagadh District, at that time, accused Bharat raped her and thereby committed the offence punishable under section 376(I) read with sections 363, 366 and 34 of Indian Penal Code. 3. Mr.Gajendra Baghel, learned advocate for the appellant accused has taken this Court through the entire Record and Proceedings and argued that in view of the decision of the Apex Court even with the aid of section 34 of IPC, a woman cannot be convicted for the offence of rape and in the present case, the present appellant has been convicted and therefore, this appeal may be taken up for hearing. Therefore, at the request of learned advocate for the appellant and learned APP, the matter is taken up for final hearing today. 4. Indisputably, the present appellant is a lady and wife of the prime accused Bharat. She was also accompanied with accused Bharat while they have gone for piecemeal labour work. When accused Bharat noticed victim prosecutrix, he offered her that she would be getting Rs.345/- for cleaning utensil at Kamrej. Though, initially, the parents of the prosecutrix resisted, but thereafter they agreed to send her daughter for the work and thereafter prime accused Bharat along with the present appellant took prosecutrix in the districts of Rajkot and Junagadh, during which period as deposed by the prosecutrix, once they resided in the forest area of Junagadh District, accused Bharat committed rape over her person. The prosecutrix further deposed that the said act of accused Bharat was solitary incident as only once, she was raped. The prosecutrix further deposed that the said act of accused Bharat was solitary incident as only once, she was raped. The say of the prosecutrix is fully getting corroboration from medical and other evidence on record. 5. So far as conviction of the present appellant accused under section 376(I) of IPC is concerned, there is clear answer in the decision reported in 2006 (3) GLH 118 (Priya Patel Vs State of Madhya Pradesh and another wherein in paragraph 8, the Apex Court observed thus : “8. 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 mote severe punishment. One of them relates to “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 subsection( 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 had 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. “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 their common intention to do a criminal act. The expression “in furtherance of 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).” 6. In view of the clear position of law, a woman cannot be punished for the offence under section 376 of IPC with the aid of section 34 of IPC and therefore, the conviction of the appellant being a woman is required to be quashed and set aside. 7. Now, the question arises as to whether when the prime accused Bharat in company with the present accused his wife took out the prosecutrix from the lawful guardianship of her parents to various places like Kamrej, Rajkot, Junagadh etc. and stayed together for several days and during such period, once the prime accused Bharat committed rape over the prosecutrix and in such eventuality, the offence under sections 363 and 366 of Indian Penal Code would be attracted so far as the present appellant accused is concerned. 8. On going through the evidence of the prosecutrix, though consent of the guardian was taken by the prime accused Bharat while taking away the prosecutrix to various places, but that was under the pretext of giving labour work and not for committing rape over her person and althroughout, the present appellant being the wife of the prime accused accompanied with the prime accused and even as deposed by the prosecutrix, in the presence of the appellant accused, the alleged act of rape was committed in the forest area of Junagadh District. In that view of the matter, the appellant accused is also answerable so far as the offence under sections 363 and 366 read with section 34 of Indian Penal Code is concerned. 9. In that view of the matter, the appellant accused is also answerable so far as the offence under sections 363 and 366 read with section 34 of Indian Penal Code is concerned. 9. On overall evaluation of the evidence on record, very lesser role can be attributed on the part of the present appellant accused. Under the circumstances, this Court deems it appropriate to reduce the sentence of the appellant accused to the extent of sentence already undergone i.e. one year and one month. 10. For the reasons recorded above, the appeal succeeds in part. The impugned judgment and order dated 31.1.2019 passed by learned Additional Sessions Judge and Special Judge (POCSO), Surat in Special (POCSO) Case No.31 of 2014 is quashed and set aside qua the present appellant accused so far as offence under section 376 read with section 34 of IPC is concerned while maintaining conviction of the appellant under sections 363 and 366 read with section 34 of IPC and sentence of the appellant is reduced to the extent of sentence already undergone by the appellant. The order as regards to the payment of fine by the appellant as directed by learned trial Court, in case of default in payment of fine, the appellant shall undergo sentence for two months. The appellant accused be set at liberty if she is not required in any other offence. Bail bond, if any, stands cancelled. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith. 11. In view of the above order, the application for suspension of sentence does not survive and stands disposed of accordingly.