Delhi HC: a woman can be charged with gang rape under Section 70 BNS, though not as the sole accused

Can a woman be charged with gang rape? The Delhi High Court has answered yes, under Section 376D of the Indian Penal Code and Section 70 of the Bharatiya Nyaya Sanhita, 2023 (BNS). A woman and a co-accused challenged a trial court's order framing charges in a case involving a minor, arguing only that a woman cannot be charged with this offence. Justice A. J. Bhambhani looked to the legislative history. Before the 2013 amendment, gang rape was only an aggravated form of rape under Section 376(2)(g), tied to the definition in Section 375.

It is now a separate, substantive offence. The Court relied on three features of the text. "Persons" is not limited to men. "One or more persons constituting a group" and "acting in furtherance of a common intention" are joined by a disjunctive "or", so someone acting in furtherance of a common intention need not be among those who physically commit the act. And each such person is "deemed to have committed" rape, which the Court called the most significant point.

It added two limits: a woman alone cannot be charged with gang rape, and it expressed no opinion on whether a woman can commit rape under Section 375 or Section 63 BNS, which open with "A man". The charge under Section 6 of the POCSO Act was also sustained, and the petition was dismissed. The ruling decides the charge, not guilt. This is a Delhi High Court ruling, binding within Delhi, not a Supreme Court precedent.