- Delhi High Court: woman can face gang-rape charges for participation.
- Common intention, not physical act, attracts such liability.
- Woman cannot commit rape alone; POCSO charges upheld.
The Delhi High Court has clarified that a woman can be charged with gang rape even if she did not personally rape the victim, provided she participated in the crime alongside other accused with a common intention to commit the offence.
The court held that the word “persons” used in Section 376D of the Indian Penal Code (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS), which deal with gang rape, cannot be interpreted as referring exclusively to men. A woman who allegedly participates in the commission of the offence with a shared intention can also face charges under the relevant provisions, the court said.
The ruling was delivered by a bench of Justice Anup Jairam Bhambhani, which rejected a woman’s challenge to a trial court order framing charges against her under several provisions, including Section 70 of the BNS and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act.
Common Intention Can Attract Gang-Rape Charges
The High Court said that it is not necessary for every member of a group accused of gang rape to have personally committed the physical act of rape.
If a person participated in the commission of the offence with a common intention, that person can also be charged with gang rape, the court clarified.
For instance, a woman may not have been among those who physically raped the victim. However, if she allegedly acted with the common intention of facilitating the rape, she could face charges under the gang-rape provisions.
The court observed that there was no basis to restrict the concept of common intention in gang-rape cases exclusively to men.
2013 Criminal Law Amendments Cited
In its ruling, the Delhi High Court referred to the criminal law amendments introduced in 2013, following which gang rape was incorporated as a distinct offence under Section 376D of the IPC.
The provision was subsequently retained under Section 70 of the BNS.
The court said the provisions dealing with gang rape cannot be interpreted solely through the legal definition of rape. Therefore, the argument that a woman cannot face gang-rape charges because the definition of rape refers to a male perpetrator could not be accepted.
The court’s interpretation distinguishes between the legal definition of rape and the liability of individuals who allegedly participate in a gang rape with a common intention.
Woman Cannot Be Accused Of Gang Rape Alone
The High Court also clarified an important distinction in its ruling. The question before it was whether a woman could be charged with gang rape, not whether a woman could independently commit the offence of rape.
The court said a woman cannot be accused of gang rape acting alone.
At the same time, it refrained from expressing an opinion on whether the definition of rape under Section 375 of the IPC and Section 63 of the BNS, which uses the term “man” for the perpetrator, could be extended to women or interpreted as gender-neutral.
The court left that legal question open for consideration in an appropriate case.
POCSO Charges Also Upheld
The woman had challenged a trial court order framing charges against her and another accused under several provisions, including Section 70 of the BNS and Section 6 of the POCSO Act.
Her argument was that since the legal definition of rape identifies a male perpetrator, she could not be charged with gang rape.
The High Court rejected the contention and upheld the charge framed against her under Section 6 of the POCSO Act as well.
In doing so, it relied on an earlier ruling in which it had treated aggravated penetrative sexual assault against children under the POCSO Act as a gender-neutral offence.
High Court Upholds Trial Court Order
The Delhi High Court declined to interfere with the trial court’s order dated January 17, 2025, framing charges against the woman, and dismissed her petition.
The ruling clarifies that a woman’s alleged role in a gang-rape case cannot be assessed solely on the basis of whether she personally committed the physical act of rape. Her alleged participation and common intention in the commission of the offence must also be considered.
The judgment does not, however, settle the separate question of whether the legal definition of rape itself can be interpreted as gender-neutral under the IPC or the BNS.
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