Introduction:

The Delhi High Court has held that a woman can be charged with the offence of gang rape even if she has not personally committed the physical act of rape. Interpreting Section 376D of the Indian Penal Code, 1860 (IPC), and its corresponding provision under Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the Court ruled that the expression “persons” used in the statutory definition of gang rape cannot be restricted to men. Where the ingredients of the offence are prima facie satisfied, criminal liability may extend to an accused person irrespective of gender, provided the statutory requirements concerning group participation and common intention are met.

The ruling was delivered by Justice Anup Jairam Bhambhani while deciding a petition filed by a woman and another accused in ANSXXX and Another v. State of NCT of Delhi and Another. The petition challenged a trial court’s order dated January 17, 2025, framing charges under various provisions of the BNS, including Section 70, as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The woman questioned the legal basis for charging her with gang rape, contending that the definition of rape under Section 375 IPC refers to a “man” as the perpetrator and, therefore, could not be applied to her in the manner adopted by the prosecution.

Rejecting this contention, the High Court distinguished the offence of rape, as defined under Section 375 IPC and Section 63 BNS, from the separate and substantive offence of gang rape under Section 376D IPC and Section 70 BNS. It observed that the latter provisions create a distinct offence and cannot automatically be confined to every limitation that might arise from a narrow reading of the definition of rape. The Court reasoned that the statutory language concerning a group of “persons” acting in furtherance of a common intention does not support restricting the offence to groups consisting exclusively of men.

The judgment also clarified an important limitation. The Court was not deciding whether a woman can independently commit the offence of rape as defined under Section 375 IPC or Section 63 BNS. It expressly left that question open. Its decision was confined to whether a woman could be charged with gang rape on the allegation that she participated in, or acted in furtherance of a common intention to bring about, the commission of rape by a group.

The Court further held that a person need not necessarily be among those who physically commit the act of rape to attract the provision on gang rape. A person who allegedly facilitates or furthers a common plan to have the offence committed may fall within the statutory framework, depending on the facts and evidence. The Court also upheld the charge under Section 6 of the POCSO Act, relying on its earlier decision recognising that the offence of aggravated penetrative sexual assault under that legislation is not restricted to male offenders.

Accordingly, the High Court dismissed the petition and upheld the trial court’s order framing charges. The ruling is significant because it addresses the scope of group criminal liability in sexual offences while maintaining a distinction between the legal requirements for framing a charge and the prosecution’s obligation to prove guilt at trial.

Arguments of the Parties:

The principal argument advanced by the woman challenging the order on charge was that the statutory definition of rape under Section 375 IPC identifies a “man” as the person who commits the offence. Section 63 BNS similarly uses gender-specific language in defining rape. According to her contention, this wording created a legal difficulty in applying the provisions concerning gang rape to a female accused.

The challenge rested on the relationship between the definition of rape and the separate provision prescribing punishment for gang rape. The petitioner’s position was, in substance, that if the underlying offence of rape is defined by reference to an act committed by a man, a woman cannot be treated as having committed gang rape merely because she is alleged to have participated in the circumstances surrounding an assault. On this reading, the gender-specific wording in the definition of rape should limit the scope of the gang rape provision as well.

This argument raised a question of statutory interpretation rather than merely a dispute over the factual allegations. The petitioner sought to establish that the charge was legally unsustainable because of her gender, irrespective of whether the prosecution alleged that she had assisted, facilitated or acted in concert with another person in the commission of the offence.

The challenge also implicated the distinction between personally performing a criminal act and being held responsible under a provision that expressly addresses group conduct. The petitioner’s interpretation treated the definition of rape as the controlling starting point for determining who could be charged under the gang rape provision. If the statutory definition did not recognise a woman as capable of committing rape, she argued, the separate provision could not be used to impose gang rape liability on her.

The petitioner also challenged the order framing charges that included Section 6 of the POCSO Act. This provision prescribes punishment for aggravated penetrative sexual assault against a child. The challenge required the Court to consider whether the gender of an accused could prevent the prosecution from proceeding under that provision. The legal issue was particularly important because the POCSO Act was enacted to protect children from sexual offences and contains its own statutory definitions of sexual assault and related offences.

The prosecution’s position, as reflected in the order challenged before the High Court, was that the charges could proceed under the relevant provisions despite the petitioner’s contention that she had not personally committed the physical act of rape. The allegations were considered within the framework of group participation and common intention, rather than solely through the question of who physically performed the act.

The prosecution’s case thus required the Court to examine whether Section 376D IPC and Section 70 BNS were independent substantive provisions capable of covering a person who acted in furtherance of a common intention to have rape committed, even if that person did not personally perform the act constituting rape. The statutory language referring to “one or more persons constituting a group” and persons acting in furtherance of a common intention became central to that analysis.

The prosecution’s position also drew support from the legislative development of the law on sexual offences. The criminal law amendments introduced in 2013 significantly expanded the definition of rape and separately addressed gang rape. The later BNS framework retained a distinct provision for gang rape. These changes indicated that the legislature had treated group sexual violence as an offence requiring specific legal treatment, rather than leaving it entirely dependent on the ordinary definition of rape.

The dispute also involved the applicability of the POCSO Act. In this respect, the legal framework differed from the IPC and BNS definitions of rape because the POCSO Act addresses penetrative sexual assault against children through its own terminology and provisions. The High Court’s earlier ruling in Sundari Gautam v. State of NCT of Delhi had recognised that a woman could face a charge of aggravated penetrative sexual assault under the POCSO Act. That precedent provided a basis for rejecting the proposition that the gender of an accused, by itself, necessarily excluded the application of Section 6.

The competing positions therefore required the Court to distinguish between three questions. The first was whether a woman could independently commit rape within the precise definition contained in Section 375 IPC or Section 63 BNS. The second was whether she could be charged with gang rape under the separate provisions in Section 376D IPC and Section 70 BNS, even if she did not physically commit rape. The third was whether the POCSO Act charge could proceed against her despite her gender.

The High Court approached these questions separately. It did not accept that the gender-specific wording in the definition of rape automatically controlled the interpretation of the separate gang rape provisions. At the same time, it declined to decide the broader question of whether the definition of rape itself could be interpreted as gender-neutral. This distinction allowed the Court to determine the issue necessary for deciding the petition without making a wider declaration on a question that was not required to be resolved.

Court’s Judgment:

The Delhi High Court dismissed the petition and upheld the trial court’s order framing charges. Justice Anup Jairam Bhambhani held that there was no legal basis to conclude that a woman could not be charged with gang rape under Section 376D IPC or Section 70 BNS merely because she had not personally committed the physical act of rape. The Court’s reasoning centred on the separate character of the offence of gang rape, the wording of the relevant provisions, and the significance of acting in furtherance of a common intention.

The Court first examined the statutory framework governing rape and gang rape. Section 375 IPC defines rape and specifies the circumstances in which the offence is committed. Following the criminal law amendments introduced in 2013, the definition was expanded beyond the earlier, narrower conception of rape. The amended provision covers specified forms of penetration and other acts falling within its statutory language. Section 63 BNS carries forward the definition of rape under the new criminal law framework.

Gang rape, however, is addressed separately. Section 376D IPC provides for the offence of gang rape, while Section 70 BNS contains the corresponding provision under the BNS. The Court considered this separate placement important because it demonstrated that the legislature had created a distinct substantive offence to address rape committed by persons acting as a group or in furtherance of a common intention.

The Court reasoned that the interpretation of these separate provisions should not automatically be confined to the wording of the definition of rape. Although the definition remains relevant to identifying the underlying physical act, the gang rape provisions also address the responsibility of persons participating in the group offence. Their operation must therefore be assessed by examining their own language and purpose.

This distinction formed the foundation of the judgment. The petitioner had argued that because the definition of rape refers to a man as the perpetrator, a woman could not be charged with gang rape. The Court rejected the proposition that this wording necessarily excluded women from the scope of Section 376D IPC and Section 70 BNS. It held that the provisions governing gang rape must be interpreted independently as substantive penal provisions, rather than being mechanically restricted by a narrow reading of the definition of rape.

The Court then examined the expression “one or more persons constituting a group” in the statutory framework. It found no sufficient basis to interpret the word “persons” as referring only to men. The ordinary wording does not expressly restrict the group to a particular gender, and the Court considered that a gender-based restriction would lack a sound legal foundation.

The same reasoning applied to the phrase “acting in furtherance of a common intention”. The Court rejected the suggestion that common intention under the gang rape provisions must be confined to the intentions of men. Nothing in the expression itself justified such a restriction. The relevant inquiry was whether the person concerned had acted in furtherance of a common intention connected with the commission of the offence, not whether that person belonged to a particular gender.

The judgment thus focused on the difference between physical commission of an act and responsibility for participating in a group offence. The Court observed that a person need not necessarily be among those who physically commit rape to be charged under the gang rape provisions. An individual may allegedly contribute to a common plan to have rape committed without personally performing the act that constitutes rape.

To illustrate the principle, the Court referred to the possibility of a woman acting in furtherance of a common intention to have rape committed against the victim, even though she was not part of the group physically carrying out the act. In such circumstances, the absence of direct physical participation would not, by itself, prevent the application of the gang rape provision.

This reasoning does not mean that every person associated with an accused or present near the scene of an offence can automatically be charged with gang rape. The prosecution must still establish the legally required connection between the accused, the group and the common intention. Mere presence, association or knowledge cannot be treated as a substitute for the ingredients of the offence. The judgment addresses the legal possibility of charging a woman; it does not remove the need to establish the statutory elements through evidence.

The distinction is particularly important because the case arose at the stage of challenging an order framing charges. At that stage, the Court was considering whether the charges were legally sustainable, not determining the accused’s guilt after a full trial. The decision therefore did not amount to a final finding that the woman had participated in gang rape. It established that her gender alone did not make the charge legally impermissible.

The Court also carefully limited the scope of its ruling. It clarified that the question before it was whether a woman could be charged with gang rape under Section 376D IPC and Section 70 BNS, rather than whether a woman could independently commit the offence of rape as defined under Section 375 IPC or Section 63 BNS. It expressly refrained from expressing an opinion on whether the word “man” in those definitions should be understood in a gender-neutral manner.

This reservation is a significant feature of the decision. The Court did not rewrite the definition of rape or declare that every gender-specific term in the IPC or BNS must be interpreted without reference to gender. Instead, it confined its analysis to the separate statutory provisions dealing with gang rape and the scope of liability under those provisions.

By adopting this approach, the Court avoided deciding a broader question that was unnecessary to resolve the petition. The ruling should therefore not be read as a conclusive determination that a woman can independently commit rape under the definitions in Section 375 IPC or Section 63 BNS. That issue remains open, as expressly stated by the Court.

The judgment also considered the charge under Section 6 of the POCSO Act. This provision prescribes punishment for aggravated penetrative sexual assault against a child. Unlike the specific definition of rape under the IPC and BNS, the POCSO Act establishes a separate framework for sexual offences against children, with its own definitions and provisions.

In addressing this aspect, the Court relied on its earlier decision in Sundari Gautam v. State of NCT of Delhi, in which it had held that the offence of penetrative sexual assault under the POCSO Act was not confined to male offenders. In that case, the Court had rejected the argument that a woman could not face prosecution for aggravated penetrative sexual assault merely because she was female. It had concluded that, on a prima facie assessment of the material before it, the charge was capable of being maintained and the case should proceed to trial.

The earlier ruling was relevant because it demonstrated that the applicability of a sexual-offence provision to a female accused must be determined by reference to the wording and structure of the particular statute. A conclusion reached under the POCSO Act does not automatically settle the interpretation of the rape provisions in the IPC or BNS, just as the gender-specific wording of the rape definition does not necessarily determine the scope of every other sexual-offence provision.

In the present case, the Court upheld the charge under Section 6 of the POCSO Act in accordance with that earlier approach. It did not accept that the woman’s gender, by itself, was sufficient to invalidate the charge. As with the gang rape charge, the question of ultimate criminal liability would depend on the evidence and the applicable statutory ingredients.

The Court’s interpretation of gang rape also reflects the broader significance of the 2013 criminal law amendments. Those amendments introduced a more expansive definition of rape and established gang rape as a separate substantive offence. The legislative structure recognises that group sexual violence may involve multiple forms of participation and that responsibility cannot always be assessed solely by identifying the individual who physically performed the act.

The BNS retained a separate provision for gang rape in Section 70. The High Court’s interpretation of that provision, alongside Section 376D IPC, therefore underscores the importance of examining the language of the substantive offence rather than assuming that all issues of liability are exhausted by the definition of the underlying act.

Nevertheless, the judgment does not dispense with the presumption of innocence or reduce the prosecution’s burden at trial. The fact that a charge is legally maintainable does not mean that the allegations have been proved. The prosecution must establish the necessary facts and the accused’s legally relevant participation in accordance with the applicable criminal procedure and evidentiary standards. The accused remains entitled to contest the allegations and challenge the prosecution’s evidence.

The Court ultimately concluded that there was no basis to hold that a woman was categorically incapable of being charged with gang rape under Section 376D IPC or Section 70 BNS. It also found no reason to interfere with the charge under Section 6 of the POCSO Act. The petition was consequently dismissed, leaving the trial court’s order dated January 17, 2025, undisturbed.

The significance of the ruling lies in its careful distinction between gender, physical participation and statutory criminal liability. It confirms that, under the gang rape provisions, the legal question is not limited to who physically committed the act. A person who allegedly acted in furtherance of a common intention to have rape committed may fall within the provision, irrespective of gender, if the statutory requirements are satisfied.

At the same time, the High Court deliberately left unresolved the separate question of whether a woman can independently commit rape under the definitions in the IPC or BNS. Its decision is therefore focused rather than unlimited: it permits prosecution under the gang rape provisions where legally justified, without declaring that every provision relating to rape must be interpreted in a gender-neutral manner.

Ultimately, the judgment reinforces the principle that the scope of criminal liability must be determined by reading each statutory offence in its own terms. It allows the trial to proceed where the charge is legally sustainable, while leaving the prosecution to prove the allegations in accordance with law.