Woman Can Be Charged With Gang Rape If Common Intention Shared: Delhi High Court
Delhi High Court rules a woman can be charged with gang rape if she shares a common intention to facilitate the assault, regardless of gender.
In a significant legal interpretation, the Delhi High Court has ruled that a woman can be charged with gang rape under Section 376D of the Indian Penal Code (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS). The court observed that the law does not restrict the term "persons" to mean only a group of men when dealing with the crime of gang rape.
The Core Legal Ruling
Justice Anup Jairam Bhambhani, while dismissing a criminal revision petition, clarified that any person who shares a common intention to ensure a rape is committed upon a woman can be held liable for gang rape. Crucially, the court noted that the accused does not need to have physically committed the act of rape to be charged under these provisions.
The court highlighted that the phrase "one or more persons constituting a group" appearing in the law provides no rationale to exclude women. According to the judgment, the legal framework creates a "legal fiction" where anyone acting in furtherance of a common intention is deemed to have committed the offence, irrespective of their gender.
The Case That Triggered the Judgment
The ruling came during a case involving harrowing allegations where a minor girl claimed her own mother threatened her and forced her to have sexual relations with another accused individual. These incidents reportedly took place multiple times between December 2023 and July 2024.
The victim further alleged that her mother was present in the room while the sexual assaults were occurring. The mother had challenged the framing of charges, arguing that since the definition of rape under Section 63 of the BNS refers to a "man" as the perpetrator, a woman could not be prosecuted for gang rape.
Distinguishing Between Rape and Gang Rape
The High Court rejected the mother's argument, explaining that gang rape is a separate, substantive offence that must be interpreted within its own statutory context. Justice Bhambhani made several key distinctions to clarify the scope of this ruling:
- Not an Opinion on Individual Rape: The court explicitly stated it was not expressing an opinion on whether a woman can independently commit the offence of rape under the statutory definition.
- Requirement of a Group: The court clarified that a woman cannot be charged with gang rape by herself, as that would not fit the statutory definition of the crime.
- Role of Common Intention: The court emphasized the word "or" in the statute, noting that a person acting in furtherance of a common intention does not necessarily have to be part of the physical group committing the assault.
Evolution of the Law
The court noted that the 2013 amendment to the IPC expanded the definition of rape beyond penile-vaginal penetration and introduced Section 376D to specifically address gang rape. This provision has now been carried forward into Section 70 of the Bharatiya Nyaya Sanhita (BNS).
By focusing on the language of "persons acting in furtherance of a common intention," the court concluded that the law intends to punish those who facilitate or conspire to commit the crime, regardless of whether they physically participate in the act or what their gender may be.