Woman can face gang rape charge without personally committing the act, says Delhi HC
Delhi High Court Says Woman Can Face Gang Rape Charge With Common Intent
Bharatmorningnews.com – A woman can face gang rape charges even if she did not physically commit the act, the Delhi High Court has held, if allegations show she acted with others in furtherance of a shared intention to commit the offence.
The ruling was delivered by a bench of Justice Anup Jairam Bhambhani while considering a petition by the mother of a minor survivor. She challenged a January 17, 2025 trial court order that framed charges under the Bharatiya Nyaya Sanhita (BNS) and the Protection of Children from Sexual Offences Act.
Meaning of “persons” in gang rape law
The court examined whether the word “persons” in gang rape provisions applies only to men. It concluded that there was no legal basis for interpreting the term as restricted to male participants.
A woman can face gang rape charges where the prosecution alleges that she assisted, coerced, threatened, facilitated or otherwise participated in a coordinated plan with the common intention that rape be committed. The ruling does not mean that every person present at an alleged offence is automatically guilty; the prosecution must establish the required elements of common intention and involvement.
“For purposes of the offence of gang rape it is not necessary that a person acting in furtherance of a common intention must also be amongst the persons who physically commit the offence of rape,” the court said.
The court said a woman who is not part of the group physically carrying out rape may nevertheless have acted in furtherance of a common intention to have rape committed against the victim.
Woman cannot be charged alone with gang rape
The Delhi High Court also clarified an important limit. A woman cannot be prosecuted alone for gang rape because such a charge would, at first glance, be inconsistent with the statutory definition of rape under the current legal framework.
The observation applies to section 376D of the Indian Penal Code and section 70 of the BNS. The court held that a woman can face gang rape charges when acting with a group, but not as the sole accused in a gang rape case.
“There is no basis to hold that a woman cannot be charged with the offence of gang rape,” the court said, while clarifying that a woman alone cannot be charged with that offence.
Charges in the case
The petitioner was charged under section 70(2) of the BNS, concerning gang rape of a woman below 18 years of age. The trial court also framed charges under section 351(3) for criminal intimidation, section 64(2)(m) concerning aggravated rape, and section 6 of the POCSO Act.
The case arose from an FIR registered in July 2024 after the minor survivor’s mother alleged that her daughter had been kidnapped. In her statement, the minor alleged that her mother threatened her, said the accused would kill her if she refused to have physical relations with him, compelled her to comply, and was present during incidents of sexual assault.
Before the High Court, the petitioner argued that she could not be accused of gang rape because rape could only be committed by a man and gang rape required a group of men. The court rejected the argument that the term “persons” must be confined to men.
FAQ: Delhi High Court ruling on gang rape charges
Can a woman be accused of gang rape in India?
Yes. The Delhi High Court held that a woman can face gang rape charges when allegations indicate that she acted with others in furtherance of a shared intention to commit rape.
Must every accused physically commit rape?
No. According to the court, a person may be liable if they participated in a common plan to commit rape, even if they did not physically carry out the sexual assault.
Can a woman alone be charged with gang rape?
No. The court said a woman acting alone cannot be charged with gang rape under the current statutory definition, although she may face other charges depending on the facts of a case.
What laws were considered in the ruling?
The court considered section 376D of the IPC, section 70 of the BNS, and provisions of the POCSO Act in the context of charges involving a minor survivor.