Court says Section 70 BNS is a standalone, gender-neutral offence; clarifies ruling does not decide whether a woman can commit rape alone
In a significant ruling on the scope of gang rape provisions under the new criminal law regime, the Delhi High Court has held that a woman can be charged with the offence of gang rape under Section 70 of the Bharatiya Nyaya Sanhita, 2023, as well as the corresponding Section 376D of the Indian Penal Code, 1860. The court, however, clarified that a woman alone cannot be charged with gang rape on the present interpretation of the law.
Justice A.J. Bhambhani delivered the judgment while dismissing a criminal revision petition challenging an order framing charges against the petitioners in a case involving allegations of repeated sexual assault on a minor. The main challenge was raised by petitioner No. 1, a woman, who argued that she could not be prosecuted for gang rape because the definition of rape under Section 63 BNS refers to “a man” as the offender.
The court rejected that argument and held that the offence of gang rape is a separate and substantive offence under Section 70 BNS, not merely an aggravated form of rape. It observed that the phrase “one or more persons constituting a group or acting in furtherance of a common intention” is gender-neutral, and that the deeming fiction in the provision fastens liability on every person involved in the group or common intention, irrespective of gender.
The High Court distinguished earlier Supreme Court rulings in Priya Patel v. State of M.P. and State of Rajasthan v. Hemraj, noting that those decisions were rendered in the context of the pre-2013 version of the IPC, when gang rape was only an aggravated form of rape under Section 376(2)(g) read with its explanation. After the 2013 amendments, Section 376D IPC and now Section 70 BNS create an independent offence, the court said.
The Bench also relied on the structure of the provision, noting that the expressions “one or more persons constituting a group” and “acting in furtherance of a common intention” are separated by the disjunctive “or”. According to the court, this shows that a person may be liable even if they did not personally commit the physical act of rape, so long as they acted in furtherance of the common intention to have rape committed on the victim.
In its reasoning, the court emphasized that it was not deciding whether a woman can commit rape under Section 63 BNS or Section 375 IPC. The judgment was confined to the question whether a woman can be charged with gang rape. On that limited issue, the court answered in the affirmative.
The court also referred to its earlier decision in Sundari Gautam v. State of NCT of Delhi, where Section 3 of the POCSO Act was held to be gender-neutral, and held that the charge under Section 6 of the POCSO Act against the woman accused was sustainable.
Ultimately, the High Court upheld the trial court’s order on charge and dismissed the revision petition.
Bottom Line:
Gang rape - Woman can be charged with offence of gang rape if she is part of group or acts in furtherance of common intention to have rape committed on victim - Expression "one or more persons constituting a group or acting in furtherance of a common intention" is gender-neutral - Deeming fiction "each of those persons shall be deemed to have committed the offence of rape" fastens liability irrespective of gender - However, woman alone cannot be charged with gang rape.
Statutory provision(s): Section 70 Bharatiya Nyaya Sanhita, 2023, Section 63 Bharatiya Nyaya Sanhita, 2023, Section 376D Indian Penal Code, 1860, Section 375 Indian Penal Code, 1860, Section 376(2)(g) Indian Penal Code, 1860, Section 3 Protection of Children from Sexual Offences Act, 2012, Section 6 Protection of Children from Sexual Offences Act, 2012, Sections 438, 442, 528 Bharatiya Nagarik Suraksha Sanhita, 2023, Article 227 of the Constitution of India
Ansxxx v. State of NCT of Delhi, (Delhi) : Law Finder Doc id # 2997680
