Article Summary
The Delhi High Court has held that a woman can be prosecuted for gang rape under Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS) even though the principal offence of rape is defined in gender-specific terms. The Court interpreted the expression “persons” in Section 70 as gender-neutral, meaning liability for participation in a group acting with a common intention is not restricted only to men. The ruling highlights that a person may face gang-rape liability based on their participation and shared intention in the alleged offence, even if they could not individually commit the principal act of rape as statutorily defined.
Woman Can Be Charged with Gang Rape Under Section 70 BNS: Delhi High Court Holds the Expression “Persons” to Be Gender-Neutral
Case Title: ANSXXX v. State (NCT of Delhi)
Citation: 2026 SCC OnLine Del 7997
Court: Delhi High Court
Bench: Justice A.J. Bhambhani
Date of Decision: 15 October 2026
Relevant Provisions: Section 376-D, Indian Penal Code, 1860; Sections 63 and 70, Bharatiya Nyaya Sanhita, 2023; Section 6, Protection of Children from Sexual Offences Act, 2012.
1. Introduction
In a significant ruling concerning the interpretation of gender-neutral criminal liability, the Delhi High Court has held that a woman can be prosecuted for the offence of gang rape under Section 376-D of the Indian Penal Code, 1860 (IPC), and Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS), if she forms part of a group or acts in furtherance of a common intention to have rape committed upon the victim.
Justice A.J. Bhambhani observed that the expression “persons” appearing in the statutory provisions relating to gang rape cannot be restricted to men alone. The Court clarified that an individual need not personally perform the physical act of rape to attract liability for gang rape, provided the statutory requirements relating to group participation or common intention are satisfied.
However, the Court expressly clarified that a woman acting alone cannot be charged with gang rape under the provisions as presently interpreted. It also refrained from expressing any opinion on whether the expression “man” under Section 63 BNS can itself be interpreted as gender-neutral.
2. Facts of the Case
The matter arose from allegations concerning the sexual assault of a minor girl. Initially, an FIR was registered at the instance of Petitioner No. 1, the mother of the minor victim, under Section 137(2) of the BNS, alleging kidnapping.
During the investigation, the minor appeared at the police station on 1 October 2024 and disclosed allegations of sexual assault. Subsequently, offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), were incorporated into the investigation.
In her statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the minor alleged that her mother had threatened to kill her if she refused to establish physical relations with Petitioner No. 2. She further alleged that her mother forced her into such relations despite her objections and remained present in the room during the alleged incidents of sexual assault.
The victim also alleged that the incidents occurred repeatedly between December 2023 and July 2024 and that a video recording of one of the incidents was available on her mother’s mobile phone.
By an order dated 17 January 2025, the Trial Court framed charges against the petitioners under Sections 70(2), 351(3) and 64(2)(m) of the BNS, along with Section 6 of the POCSO Act.
Aggrieved by the framing of charges, the petitioners approached the Delhi High Court. Their principal contention was that Petitioner No. 1, being a woman, could not legally be charged with gang rape.
3. Legal Issues Before the Court
The principal question before the Delhi High Court was:
Whether a woman who does not physically commit the act of rape but facilitates or participates in its commission as part of a group or in furtherance of a common intention can be prosecuted for gang rape under Section 376-D IPC and Section 70 BNS?
The Court was also required to examine whether the expression “one or more persons constituting a group” under these provisions was restricted to male persons or extended to individuals irrespective of gender.
4. Contentions of the Petitioners
The petitioners contended that the offence of rape under Section 63 BNS is defined with reference to a man committing specified acts against a woman. Therefore, the expression “persons” appearing in Section 70 BNS should necessarily be interpreted as referring only to men.
Reliance was placed upon the Supreme Court decisions in:
- Priya Patel v. State of Madhya Pradesh, (2006) 6 SCC 263; and
- State of Rajasthan v. Hemraj, (2009) 12 SCC 403.
It was argued that these decisions recognised that a woman could not be prosecuted for gang rape under the pre-2013 statutory framework because she could not herself commit the offence of rape as it was then defined.
The petitioners further argued that the legislature had deliberately retained the expression “man” in the definition of rape despite subsequent amendments and that the Court could not expand the scope of criminal liability through judicial interpretation.
They also contended that the deeming fiction contained in the gang rape provision should be strictly construed and could not be extended to create criminal liability for a woman.
5. Submissions of the Amicus Curiae
The Amicus Curiae supported the prosecution’s position and submitted that the legal framework governing gang rape had undergone a substantial change following the Criminal Law (Amendment) Act, 2013.
It was argued that, prior to the 2013 amendment, gang rape was treated as an aggravated form of rape under Section 376(2)(g) IPC. However, following the amendment, Section 376-D IPC was introduced as an independent and substantive offence.
The Amicus Curiae further submitted that:
- The expression “persons” in Section 376-D IPC and Section 70 BNS is gender-neutral.
- The requirement of common intention does not mean that every accused must personally perform the physical act constituting rape.
- An individual who facilitates, encourages or participates in the commission of rape in furtherance of a common intention can attract liability under the gang rape provision.
- The statutory expression “deemed to have committed the offence of rape” creates legal liability even where an individual has not personally performed the physical act of rape.
Reliance was also placed upon Sundari Gautam v. State (NCT of Delhi), 2024 SCC OnLine Del 5412, and Suneeta Pandey v. State of U.P., 2023 SCC OnLine All 44.
6. Court’s Analysis and Reasoning
The Delhi High Court examined the legislative history of the offence of gang rape and the changes introduced through the 2013 criminal law amendment.
A. Gang Rape Is an Independent and Substantive Offence
The Court observed that, prior to the 2013 amendment, gang rape was covered under Section 376(2)(g) IPC, read with the explanation to that provision. It was essentially treated as an aggravated form of rape and remained connected with the definition of rape under Section 375 IPC.
However, the 2013 amendment introduced Section 376-D IPC, creating a separate and substantive offence of gang rape. The Court held that this legislative development was significant in determining the scope of the offence.
The corresponding provision under the BNS is Section 70, which retains the essential statutory framework of Section 376-D IPC.
Consequently, the interpretation of gang rape could not be confined mechanically to the individual act of rape as defined under Section 375 IPC or Section 63 BNS.
B. The Expression “Persons” Is Gender-Neutral
The Court held that there was no reasonable basis for restricting the expression “one or more persons constituting a group” to a group consisting exclusively of men.
The expression “persons” must be given its ordinary and gender-neutral meaning.
“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.”
Accordingly, a woman may also fall within the scope of Section 376-D IPC and Section 70 BNS where the statutory conditions for gang rape are fulfilled.
C. Common Intention Does Not Require Physical Participation in Rape
The Court placed considerable emphasis on the expression “acting in furtherance of a common intention”.
Relying upon the principles governing common intention under Section 34 IPC and Section 3(5) BNS, including the Supreme Court’s decision in Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545, the Court explained that every accused need not individually perform each act constituting the offence.
The relevant consideration is whether the accused participated in furtherance of the common intention to have rape committed upon the victim.
Therefore, a person who facilitates or supports the commission of rape as part of a common design may attract liability even without personally committing the physical act.
D. Significance of the Word “OR” in the Statutory Provision
The Court also examined the language of Section 376-D IPC and Section 70 BNS, particularly the use of the disjunctive expression “or”.
The statutory provision covers persons who constitute a group as well as persons who act in furtherance of a common intention.
The Court held that these expressions are separated by “or” and not “and”. Therefore, an individual acting in furtherance of a common intention need not necessarily be among those who physically commit the act of rape.
This interpretation allows a woman who facilitates the commission of rape through her participation in a common intention to be prosecuted for gang rape.
E. Legal Significance of the Expression “Deemed to Have Committed the Offence of Rape”
The Court further examined the statutory expression “deemed to have committed the offence of rape”.
It held that the legislature has consciously created a legal fiction under which every person constituting the group or acting in furtherance of a common intention is deemed to have committed the offence of gang rape.
Thus, individual physical commission of rape is not an indispensable requirement for attracting liability under the gang rape provision.
The Court clarified that this interpretation does not amount to expanding the definition of rape under Section 375 IPC or Section 63 BNS. Rather, it gives effect to the independent and substantive statutory offence of gang rape.
7. Important Clarification by the Court
While recognising gender-neutral liability under the gang rape provisions, the Court made an important distinction.
It clarified that a woman acting alone cannot be charged with gang rape under Section 376-D IPC or Section 70 BNS, as such a situation would prima facie not conform to the statutory definition of rape under the existing interpretation of Section 375 IPC and Section 63 BNS.
The Court also expressly refrained from deciding whether the word “man” appearing in Section 63 BNS could itself be interpreted as gender-neutral.
Therefore, the judgment is confined to the interpretation of the offence of gang rape and should not be understood as declaring the general offence of rape gender-neutral.
8. Decision and Final Outcome
The Delhi High Court rejected the petitioners’ contention that a woman could not be prosecuted for gang rape merely because she had not physically committed the act of rape.
Holding that the expression “persons” under Section 376-D IPC and Section 70 BNS is gender-neutral, the Court upheld the Trial Court’s order dated 17 January 2025 framing charges against the petitioners.
The petition was accordingly dismissed, and pending applications, if any, were disposed of.
9. Ratio Decidendi
The ratio decidendi of the judgment is that the offence of gang rape under Section 376-D IPC and Section 70 BNS is an independent and substantive offence, and the expression “persons constituting a group” is gender-neutral.
A woman can therefore be prosecuted for gang rape if she forms part of a group or acts in furtherance of a common intention to have rape committed upon the victim, even if she does not personally perform the physical act of rape.
Liability arises from participation in the common intention and the statutory deeming fiction, subject to the prosecution establishing the necessary ingredients of the offence.
10. Legal Significance of the Judgment
The judgment is significant because it clarifies the scope of criminal liability under the gang rape provisions following the legislative changes introduced by the Criminal Law (Amendment) Act, 2013, and subsequently retained under the BNS.
First, it distinguishes the offence of gang rape from the individual offence of rape and recognises that both operate within distinct statutory frameworks.
Second, it reinforces the principle that criminal liability for a group offence does not necessarily depend upon the physical commission of every constituent act by each accused. Participation in furtherance of a common intention can attract liability where the statutory requirements are satisfied.
Third, the decision adopts a gender-neutral interpretation of the expression “persons” under the gang rape provisions without judicially altering the separate statutory definition of rape.
Finally, the ruling highlights the importance of examining legislative amendments and the precise language of a penal provision while determining criminal liability.
Conclusion
The Delhi High Court’s decision in ANSXXX v. State (NCT of Delhi) marks an important development in the interpretation of gang rape under Indian criminal law.
By recognising that a woman can be prosecuted for gang rape where she participates in a group or acts in furtherance of a common intention to have rape committed, the Court has clarified that criminal liability under Section 70 BNS is not restricted exclusively to male participants.
At the same time, the Court maintained the distinction between the statutory definition of rape and the independent offence of gang rape, leaving the broader question of gender neutrality under Section 63 BNS open for consideration in an appropriate case.
The central legal principle emerging from the judgment is that participation in a common intention to facilitate the commission of gang rape may attract criminal liability irrespective of the gender of the participant, even where that participant has not physically committed the act of rape.
Written By: Adv. Divya Tripathi
Date: 02-Nov-2026
