Woman can be charged with gang rape under BNS for acting with group: Delhi High Court

The Delhi High Court has held that a woman can be charged with gang rape under the Bharatiya Nyaya Sanhita (BNS), observing that everyone who acts as part of a group with the common intention to commit rape can be held liable for the offence, irrespective of gender.

Justice A J Bhambhani passed the judgment on October 15 on a plea by a woman challenging the framing of gang-rape charges against her.

“Section 376D IPC and section 70 BNS (both pertaining to gang rape) create a juristic postulate that each person who constitutes a group or acts in furtherance of a common intention to have rape committed upon a woman, is culpable for having committed the offence of gang rape,” the court said.

It said that there is no basis to consider that the word “persons”, appearing in the phrase “one or more persons constituting a group” in both sections, to indicate only men. “The word ‘persons’ appearing in the said phrase must be construed in its gender-neutral form,” it added.

The court added that though a person may not individually have committed rape, they are deemed to have done so and are hence liable to be charged with gang rape regardless of gender.

Justice A J Bhambhani concluded that there was no basis to hold that a woman cannot be charged with the offence of gang rape.

‘Mother forces minor’

The case arose from allegations that the accused woman, who is the mother of the minor rape survivor, threatened her daughter with death if she refused to have physical relations with a co-accused. According to the victim’s statement, the woman forced her to have sexual relations with the co-accused and remained present in the room during the alleged sexual assaults.

The woman and the co-accused challenged the order framing charges under various sections of the Bharatiya Nyaya Sanhita (BNS) and the Protection of Children from Sexual Offences (POCSO) Act before the high court.

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The court noted that under the pre-2013 section 375 IPC, rape was understood as the conventional penile-vaginal offence committed by a man upon a woman. Subsequently, however, by way of the 2013 amendment, the definition of rape under section 375 was expanded by the legislature to also criminalise acts other than penile-vaginal penetration.

“Under the extant penal provisions therefore, the offence of rape is no longer confined to penile-vaginal penetration but includes acts such as insertion of any object or body part (other than the penis), manipulation of any body part, or application of the mouth to the vagina, anus, or urethra of a woman,” the judge observed.

The court emphasised the phrases “one or more persons constituting a group” and “acting in furtherance of a common intention” and to the phrase “deemed to have committed the offence of rape” appearing both in section 376D IPC and section 70 BNS.

It said that there is no rationale or basis to restrict the word “persons” appearing in the phrase “one or more persons constituting a group” to mean only a group of men. “The word ‘persons’ appearing in the said phrase must be construed in its gender-neutral form,” it added.

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The court thus concluded that there was no basis to hold that a woman cannot be charged with the offence of gang rape.

It, however, clarified that a woman cannot be charged with gang rape acting alone, as that would preliminarily not conform to the legal definition of rape. It left open the question of whether the word “man” in the definition of rape could be interpreted as gender-neutral.

The court thus upheld the order on framing of charges and dismissed the plea.