New Delhi, Oct 15 (PTI) The Delhi High Court on Thursday held that under the criminal law, a woman can be charged with the offence of gang rape even if she herself has not committed the physical act but facilitated the victim’s rape.
Justice Anup Jairam Bhambhani passed the judgment while dismissing a plea challenging the framing of charges against a woman accused of allegedly forcing her minor daughter to have sexual relations with a co-accused.
“… this court is of the view that there is no basis to hold that a woman cannot be charged with the offence of gang rape under section 376D IPC and section 70 BNS. The query posed in the present judgment is answered accordingly,” the high court said.
The court was answering a question which arose for its consideration — “Can a ‘woman’ be charged with the offence of ‘gang rape’ under section 376D IPC/section 70 BNS?”
According to Section 70 (gang rape) of Bharatiya Nyaya Sanhita, “where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, and with fine”.
Dealing with the interpretation of Section 70 BNS, Justice Bhambhani said in the opinion of this court, the use of the phrase “deemed to have committed the offence of rape” is clearly reflective of the legislative intent that, for being liable to be charged with the offence of ‘gang rape’, every person who constitutes a group or acts in furtherance of a common intention need not have individually committed the offence of rape.
The court clarified that its ruling does not mean a woman acting alone can be charged with gang rape. It also said it was not expressing any opinion on whether the word “man” in the post-2013 section 375 IPC or section 63 BNS is gender-neutral or not.
The case arose from an FIR registered at Delhi’s Bhalswa Dairy police station in July 2024.
According to the prosecution’s case, the minor girl alleged that her mother threatened her and forced her to have sexual relations with the other accused. She also alleged that the assaults took place repeatedly between December 2023 and July 2024.
The victim said when she was threatened again by her mother to have sexual relations with the other accused, she left her home in July 2024.
The petitioner woman’s counsel argued that the definition of rape under Section 63 of the BNS specifically refers to a man as the perpetrator and, therefore, a woman could not be prosecuted for gang rape.
However, advocate Rohan J Alva who was assisting the court as an amicus curiae, submitted that whether the ‘person’ is a man or a woman ought not to be a material consideration in deciding whether such person can be arrayed as an accused, if they were part of the group and contributed towards the commission of the offence.
He said there is no rational basis to confine section 376D IPC and section 70 BNS only to male offenders and that these provisions ought to be understood as imposing punishment upon a group of persons who share a common intention of having the act of rape committed on a victim, regardless of gender.
The high court dismissed the plea challenging framing of charges against the woman and upheld the trial court’s January 17, 2025 order. PTI SKV SKV KVK
KVK
This report is auto-generated from PTI news service. ThePrint holds no responsibility for its content.