The Delhi High Court has ruled that a woman can face gang-rape charges under Section 70 of the Bharatiya Nyaya Sanhita (BNS) if she participates in a group acting with the common intention of committing rape. The Court held that liability for gang rape is not restricted to men and can extend to any person who acts in furtherance of the group’s common intention.
Justice A J Bhambhani, in a judgment delivered on October 15, upheld the framing of gang-rape charges against a woman accused of facilitating the sexual assault of her minor daughter. The Court dismissed her challenge to the trial court’s order.
The Court interpreted Section 70 BNS and the corresponding Section 376D of the Indian Penal Code (IPC), holding that the expression “persons” used in both provisions must receive a gender-neutral interpretation.
It explained that an individual who participates in a group sharing the common intention to commit rape can be deemed to have committed gang rape even without personally performing the physical act.
Case Involving Alleged Sexual Assault of Minor Daughter
The proceedings arose from allegations against a woman accused of compelling her minor daughter to engage in sexual acts with a co-accused.
According to the minor’s statement, her mother threatened to kill her if she refused to have physical relations with the co-accused. The girl further alleged that her mother forced her to submit to the sexual acts and remained inside the room while the alleged assaults took place.
Following the allegations, charges were framed against the woman and the co-accused under various provisions of the BNS and the Protection of Children from Sexual Offences (POCSO) Act.
Both accused approached the Delhi High Court challenging the order framing charges.
Gang-Rape Provision Does Not Exclude Women
Examining the statutory framework, Justice Bhambhani focused on the language of Section 376D IPC and Section 70 BNS, particularly the provisions concerning persons acting together as a group or in furtherance of a common intention.
The Court held that these provisions create a legal basis for treating every participant in such a group as having committed gang rape, regardless of whether that person individually carried out the act constituting rape.
It rejected the interpretation that the reference to persons forming a group necessarily meant male participants alone.
The Court found no legal justification for limiting the expression to men when the legislature had used gender-neutral terminology.
Accordingly, a woman who shares the common intention and participates in the commission of the offence can also be charged with gang rape.
Court Examines Expanded Definition of Rape
The judgment also examined how the legal definition of rape changed following the 2013 amendments to the IPC.
Justice Bhambhani noted that before the amendments, Section 375 IPC primarily defined rape in terms of penile-vaginal penetration committed by a man against a woman.
The 2013 amendments expanded the definition to cover additional forms of sexual penetration and other specified sexual acts.
The Court observed that the revised definition includes the insertion of objects or body parts other than the penis, manipulation of body parts and the application of the mouth to specified parts of a woman’s body.
Against this statutory background, the Court distinguished between the definition of rape under Section 375 IPC and the separate principle of group liability incorporated into the gang-rape provisions.
It emphasised that the provisions concerning gang rape expressly deem participants acting with the requisite common intention to have committed the offence.
Woman Acting Alone Cannot Be Charged With Gang Rape
While recognising that women may incur liability under the gang-rape provisions, the Court clarified that the ruling does not mean a woman acting alone can necessarily be prosecuted for rape.
It observed that charging a woman acting independently with gang rape would, at the preliminary level, be inconsistent with the statutory definition of rape.
The Court also declined to decide whether the word “man” appearing in the legal definition of rape could itself be interpreted in a gender-neutral manner, leaving that issue open.
However, it concluded that the law does not prevent a woman from being charged with gang rape when she acts as part of a group sharing the common intention to commit the offence.
Finding no ground to interfere with the order framing charges, the Delhi High Court dismissed the challenge and upheld the charges against the accused woman.
