New Delhi [India], October 15 (ANI): The Delhi High Court has held that a woman can be charged with gang rape under Section 376D of the Indian Penal Code (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS), observing that there is no basis to restrict the expression “persons” in the law to a group of men.
Justice Anup Jairam Bhambhani, while dismissing a criminal revision petition challenging the framing of charges against a woman and another accused, held that a person who shares a common intention to have rape committed upon a woman can be held liable for gang rape even if that person did not physically commit the act.
“There is no rationale or basis to restrict the word ‘persons’ appearing in the phrase ‘one or more persons constituting a group’ to mean only a group of men,” the court observed in its October 15 judgment.
The court clarified that its ruling was confined to the question of whether a woman can be charged with gang rape and did not express any opinion on whether a woman can independently commit the offence of rape under the statutory definition.
The court also clarified that a woman cannot, by herself, be charged with gang rape, as such a charge would prima facie not conform to the statutory definition of rape as currently construed.
The case arose from allegations that the mother of a minor girl had threatened her and forced her to have sexual relations with another accused on multiple occasions between December 2023 and July 2024. The victim had also alleged that her mother remained present in the room during the incidents of sexual assault.
The mother challenged the order on charge, arguing that a woman could not be prosecuted for gang rape because the definition of rape under Section 63 of the BNS refers to a man as the perpetrator.
The High Court rejected the contention, holding that the offence of gang rape under the amended IPC provision and the corresponding BNS provision is a separate, substantive offence and must be interpreted in its own statutory context.
“By way of this judgment, this court is not expressing any opinion on whether a woman can commit rape,” Justice Bhambhani clarified, adding that the question before it was whether a woman could be charged with gang rape.
The court noted that the 2013 amendment to the IPC expanded the definition of rape beyond penile-vaginal penetration and simultaneously introduced Section 376D, making gang rape a separate offence. The corresponding provision is now contained in Section 70 of the BNS.
The court said the statutory language expressly refers to “one or more persons constituting a group” and persons “acting in furtherance of a common intention”, without restricting such persons to men.
It further observed that the expression “or” separating the two phrases was significant, as a person acting in furtherance of a common intention need not necessarily be part of the group that physically commits the rape.
“For purposes of the offence of gang rape it is not necessary that a person acting in furtherance of a common intention must also be amongst the persons who physically commit the offence of rape,” the court said.
The court explained that a woman who is not part of the group physically committing the offence may nevertheless be liable if she acts in furtherance of a common intention to have rape committed upon the victim.
It also relied on the statutory phrase “deemed to have committed the offence of rape” to hold that every person who constitutes a group or acts in furtherance of a common intention need not have personally committed the physical act.
The court held that the relevant provisions create a legal fiction under which a person sharing the requisite common intention can be held culpable for gang rape, irrespective of gender.
The petitioners had relied on Supreme Court judgments in Priya Patel v. State of Madhya Pradesh and State of Rajasthan v. Hemraj, arguing that a woman could not be prosecuted for gang rape.
However, the court distinguished the earlier legal position, noting that the Supreme Court decisions concerned the pre-2013 statutory framework, when gang rape was treated as an aggravated form of rape under Section 376(2)(g) of the IPC. The subsequent amendment made gang rape a separate offence under Section 376D.
The court also took note of its earlier ruling in Sundari Gautam v. State of NCT of Delhi, which held that offences of penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act could be committed by an offender irrespective of gender.
The High Court ultimately answered the legal question by holding that there was no basis to prevent a woman from being charged with gang rape under the applicable provisions.
It upheld the January 17, 2025, order framing charges against the petitioners under Sections 70(2), 351(3) and 64(2)(m) of the BNS and Section 6 of the POCSO Act, and dismissed the criminal revision petition. The court also held that the charge under Section 6 of the POCSO Act was independently sustainable in view of its ruling in Sundari Gautam. (ANI)
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