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), even if she did not physically commit the act of rape. Justice A. J. Bhambhani dismissed a criminal revision petition challenging the framing of charges against a woman accused in a case involving the alleged sexual assault of a minor.
The Court clarified that its ruling concerns liability for gang rape and does not decide whether a woman can independently commit the offence of rape under the statutory definition.
“Once these aspects are given due consideration, the inevitable conclusion is that though a person may not individually have committed the act of rape as set-out in the post-2013 section 375 IPC and section 63 BNS, they are deemed to have committed the offence of rape within the meaning of section 376D IPC and section 70 BNS; and are therefore liable to be charged with that offence of gang rape regardless of gender,” the Court observed.
The case arose from allegations of repeated sexual assault of a minor between December 2023 and July 2024. According to the victim’s statement recorded during the investigation, the woman, who was her mother, allegedly threatened her and compelled her to have physical relations with the co-accused. The woman was also alleged to have remained present during the incidents.
The FIR was registered in July 2024. Following the investigation, charges were framed against the petitioners under various provisions of the BNS and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
The woman challenged the order, arguing that she could not be charged with gang rape because the statutory definition of rape refers to a man.
Justice A. J. Bhambhani examined the 2013 amendments to the IPC and the subsequent enactment of the Bharatiya Nyaya Sanhita (BNS). The Court noted that gang rape was recognised as a separate offence under Section 376D IPC and continued as a separate offence under Section 70 BNS.
The Court held that the expression “persons constituting a group” could not be interpreted as referring only to men. It also distinguished earlier Supreme Court rulings that dealt with the legal framework before the 2013 amendments.
The Court observed:
“This court is of the view that 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; and therefore, the word ‘persons’ appearing in the said phrase must be construed in its gender-neutral form.”
The Court further explained that a person could face a gang rape charge without personally committing the physical act of rape, provided the legal requirements concerning participation in the group and common intention were satisfied.
The Delhi High Court held that a woman can be charged with gang rape under Section 376D of the IPC and Section 70 of the BNS, even if she did not personally commit the physical act, provided the statutory requirements are satisfied. The Court also upheld the charge under the Section 6 POCSO Act, dismissed the criminal revision petition, and affirmed the trial court’s order framing charges dated January 17, 2025.
Case Title: ANSXXX and Anr. v. State of NCT of Delhi and Anr.
Case Number: CRL.REV.P. 37/2025 & CRL.M.A. 2891/2025
