Women can face gang-rape charges for facilitating an assault, even if they did not physically commit rape: Delhi High Court

The first petitioner, the victim’s mother, lodged an FIR initially alleging that her minor daughter had been kidnapped.

During the investigation, the victim alleged that, from December 2023 to July 2024, the first petitioner threatened and forced her to have sexual relations with the second petitioner, and remained present during the assaults.

The allegations spanned the periods when the IPC and the BNS were in force; charges were framed under, among other provisions, sections 376D IPC/70 BNS and section 6 of the POCSO Act.

The petitioners challenged the order on charge, arguing that a woman could not be charged with gang rape.

1. Whether a woman can be charged with gang rape under section 376D IPC or section 70 BNS.

2. Whether the Supreme Court’s decisions in Priya Patel v. State of M.P. and State of Rajasthan v. Hemraj preclude such a charge under the post-2013 statutory provisions.

Section 376D IPC and section 70 BNS make it an offence for a woman to be raped by one or more persons constituting a group or acting in furtherance of a common intention, and provide that each such person is “deemed to have committed” rape.

The provisions impose joint liability on persons who constitute the group or act in furtherance of the common intention; an accused need not personally commit the physical act of rape, and liability is not restricted by gender.

Priya Patel v. State of M.P., (2006) 6 SCC 263, and State of Rajasthan v. Hemraj, (2009) 12 SCC 403, concerned the pre-2013 framework, when gang rape was an aggravated form of rape under section 376(2)(g) IPC, and were distinguished from the later, standalone offence under section 376D IPC.

The court also relied on Sundari Gautam v. State of NCT of Delhi, 2024:DHC:5944, for the gender-neutral application of section 3 of the POCSO Act.

The court held that the 2013 amendment created gang rape as a separate substantive offence, subsequently retained in section 70 BNS, so its scope was not confined to the definition of rape in section 375 IPC or section 63 BNS.

It gave effect to the statutory references to “persons,” “a common intention,” and the deeming provision, concluding that a woman who facilitates or otherwise acts in furtherance of a common intention to have rape committed may be charged even if she did not personally commit the physical act.

The court therefore rejected the contention that Priya Patel and Hemraj barred the charge under the later provisions.

It expressly left open whether a woman acting alone could commit rape under section 375 IPC or section 63 BNS.

It upheld the order on charge, including the charge under section 6 of the POCSO Act, dismissed the petition, and disposed of the pending applications.