A person need not physically commit rape to face charges of gang rape. The Delhi High Court has ruled that a woman can also be prosecuted for the offence if she allegedly acts alongside others or facilitates the crime in furtherance of a common intention.
Justice Anup Jairam Bhambhani, while interpreting Section 70 of the Bharatiya Nyaya Sanhita (BNS), held that the provision does not restrict criminal liability to male participants. The ruling came in a case in which an accused woman challenged the gang-rape charge framed against her.
“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, stressing that the term must be understood in a gender-neutral manner.
Physical participation in rape not essential
The Court clarified that an accused need not personally carry out the physical act of rape to attract a gang-rape charge. A person who allegedly helps others commit the offence, acting with a shared criminal intention, may also fall within the scope of Section 70.
Explaining this principle, the Court noted that a woman who is not among those physically committing the rape may nevertheless have acted to facilitate the assault on the victim.
To underline the point, the judgment invoked a German proverb: “He who holds the ladder is as guilty as the thief.”
The Court concluded that there was no legal basis to hold that a woman could not be charged with gang rape under Section 376D of the erstwhile Indian Penal Code (IPC), now replaced by Section 70 of the BNS.
Allegations involving minor daughter
The case arose from allegations that the accused woman had forced her minor daughter to engage in sexual relations with a man. It was further alleged that the woman was present during repeated sexual assaults on the child between December 2023 and July 2024.
A criminal case was registered in July 2024 under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the BNS. The trial court subsequently framed a gang-rape charge against the woman under Section 70 of the BNS.
Challenging that charge before the High Court, the woman argued that she could not be prosecuted for gang rape because she was female and the statutory definition of rape under Indian law identifies a man as the perpetrator.
The High Court rejected her plea in its judgment delivered on October 15, holding that a woman can face a gang-rape charge when the legal requirements of the offence are met, provided she is not the sole accused.
Question of a woman being the sole accused left open
The Court drew a distinction between a woman participating in a gang-rape offence with others and a woman being charged with the offence as the only accused.
It observed that charging a woman alone with gang rape would, at first glance, appear inconsistent with the statutory definition of rape under Section 375 of the IPC, as amended in 2013, and Section 63 of the BNS.
However, the Court did not conclusively settle whether a woman could ever be the sole accused in such a case. It left that question open for consideration in an appropriate future matter, particularly in view of the expanded definition of rape, which includes additional acts that may be committed by a non-male offender.
The judgment also made clear that it was not deciding whether the term “man” in the provisions prescribing punishment for rape should itself be interpreted as gender-neutral.
The ruling establishes that gender alone cannot shield an alleged participant from a gang-rape charge where the law’s requirements concerning group involvement or common intention are satisfied.