Woman can be charged with gang rape even without committing physical act: Delhi HC

In a significant ruling on the interpretation of criminal law, the Delhi High Court on Thursday held that a woman can be prosecuted for gang rape even if she has not personally committed the physical act of rape, provided she participated in or facilitated the offence as part of a group acting with a common intention.

Justice Anup Jairam Bhambhani delivered the judgment while dismissing a petition filed by a woman challenging the framing of gang rape charges against her for allegedly forcing her minor daughter to have sexual relations with another accused.

The court held that Section 376D of the Indian Penal Code (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS) do not restrict liability for gang rape exclusively to men.

It clarified that a person who facilitates the commission of rape as part of a group sharing a common intention can be prosecuted for the offence even without personally performing the physical act.

"... this court is of the view that there is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D IPC and section 70 BNS. The query posed in the present judgment is answered accordingly," the court said.

𝗖𝗼𝘂𝗿𝘁 𝗲𝘅𝗮𝗺𝗶𝗻𝗲𝘀 𝗸𝗲𝘆 𝗹𝗲𝗴𝗮𝗹 𝗾𝘂𝗲𝘀𝘁𝗶𝗼𝗻

The judgment arose from a specific question concerning the scope of gang rape provisions under the country's criminal laws.

The court examined whether a woman could be charged with gang rape under Section 376D of the IPC or Section 70 of the BNS, even though the statutory definition of rape refers to a man as the perpetrator.

Justice Bhambhani observed that the language governing gang rape differs from the provision defining the physical act of rape.

Under Section 70 of the BNS, where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, every member of that group is deemed to have committed the offence.

The provision prescribes rigorous imprisonment of at least 20 years, which may extend to imprisonment for the remainder of the offender's natural life, along with a fine.

The court said the phrase "deemed to have committed the offence of rape" was central to understanding the legislature's intention.

According to the judgment, the wording makes it clear that every person participating in the group need not individually commit the physical act to attract liability for gang rape.

𝗚𝗲𝗻𝗱𝗲𝗿 𝗻𝗼 𝗯𝗮𝗿 𝘁𝗼 𝗽𝗿𝗼𝘀𝗲𝗰𝘂𝘁𝗶𝗼𝗻

Justice Bhambhani held that the statutory provision extends liability to persons who act together with a common intention to commit rape.

The court reasoned that restricting the provision only to male offenders would overlook the broader language used by the legislature to define collective responsibility.

The judgment distinguishes between the physical commission of rape and participation in a group that acts with the common intention of committing the offence.

It therefore rejected the proposition that a woman must automatically be excluded from prosecution for gang rape solely because she cannot be treated as the physical perpetrator under the definition relied upon by the petitioner.

However, the court expressly clarified that its ruling does not mean a woman acting alone can be charged with gang rape.

It also refrained from deciding whether the word "man" in Section 375 of the IPC, as amended in 2013, or Section 63 of the BNS should be interpreted in a gender-neutral manner.

The judgment was confined to the question of collective liability under the gang rape provisions.

𝗠𝗼𝘁𝗵𝗲𝗿 𝗮𝗰𝗰𝘂𝘀𝗲𝗱 𝗼𝗳 𝗳𝗼𝗿𝗰𝗶𝗻𝗴 𝗱𝗮𝘂𝗴𝗵𝘁𝗲𝗿 𝗶𝗻𝘁𝗼 𝘀𝗲𝘅𝘂𝗮𝗹 𝗮𝘀𝘀𝗮𝘂𝗹𝘁

The case arose from an FIR registered at Delhi's Bhalswa Dairy police station in July 2024.

According to the prosecution, the minor complainant alleged that her mother had repeatedly threatened her and forced her to have sexual relations with another accused.

The girl alleged that the assaults occurred between December 2023 and July 2024.

She further stated that when her mother again threatened her to submit to the other accused, she left her home in July 2024.

Following the complaint, criminal proceedings were initiated against the accused.

The trial court subsequently framed charges against the mother, including for gang rape.

The woman challenged the order before the Delhi High Court, arguing that the law did not permit a female accused to be prosecuted for the offence.

The allegations against the accused remain subject to trial and have not been established through a final conviction.

𝗗𝗲𝗳𝗲𝗻𝗰𝗲 𝗰𝗶𝘁𝗲𝘀 𝗱𝗲𝗳𝗶𝗻𝗶𝘁𝗶𝗼𝗻 𝗼𝗳 𝗿𝗮𝗽𝗲

Appearing for the petitioner, counsel argued that Section 63 of the BNS specifically defines rape with reference to a man committing the prohibited act.

On that basis, the defence contended that a woman could not be prosecuted for gang rape.

The argument relied on the distinction between the statutory definition of rape and the separate provision prescribing punishment for gang rape.

The petitioner maintained that the gender-specific language of the former provision should govern the interpretation of the latter.

However, the High Court declined to accept that interpretation.

It held that the gang rape provision must be examined in light of its own wording and the legislative intention to impose collective criminal responsibility.

𝗔𝗺𝗶𝗰𝘂𝘀 𝗮𝗿𝗴𝘂𝗲𝘀 𝗳𝗼𝗿 𝗰𝗼𝗹𝗹𝗲𝗰𝘁𝗶𝘃𝗲 𝗹𝗶𝗮𝗯𝗶𝗹𝗶𝘁𝘆

Advocate Rohan J Alva, who assisted the court as amicus curiae, argued that the gender of a person participating in a group should not determine whether that individual could be prosecuted for gang rape.

He submitted that the relevant consideration was whether the person formed part of the group and contributed to the commission of the offence.

According to Alva, there was no rational basis for interpreting Section 376D of the IPC and Section 70 of the BNS as applying exclusively to male offenders.

He argued that the provisions were intended to punish members of a group who shared a common intention to have rape committed against a victim, irrespective of their gender.

The court accepted the broader interpretation of collective liability reflected in the statutory language.

𝗧𝗿𝗶𝗮𝗹 𝗰𝗼𝘂𝗿𝘁'𝘀 𝗼𝗿𝗱𝗲𝗿 𝘂𝗽𝗵𝗲𝗹𝗱

Dismissing the petition, the High Court upheld the trial court's January 17, 2025 order framing charges against the accused woman.

The ruling establishes that the gender of an accused person does not, by itself, prevent prosecution under the gang rape provisions when the allegation concerns participation in a group acting with a common intention.

At the same time, the court carefully limited its findings to the interpretation of Sections 376D IPC and 70 BNS, without extending the ruling to the separate question of whether a woman acting alone can commit rape under the existing statutory definition.

The decision allows the criminal proceedings against the petitioner to continue before the trial court.

It does not determine her guilt, which will depend on the evidence presented during trial.

The judgment clarifies an important aspect of criminal liability by distinguishing between personally committing a prohibited physical act and participating in its commission through a shared criminal intention.