Delhi High Court Upholds Gang Rape Charge Against Woman Under Section 70 BNS

Independently written and published by Shahbaz Shah Legal Journal.

The Delhi High Court has held that a woman can be charged with gang rape under section 376D of the Indian Penal Code and section 70 of the Bharatiya Nyaya Sanhita, 2023, even where she did not personally perform the physical act of rape. Justice A. J. Bhambhani ruled that the provisions impose liability on persons acting together or in furtherance of a common intention to have the offence committed, regardless of their gender.

The judgment in ANSXXX and another v. State of NCT of Delhi and another was delivered on 15 October 2026. The Court dismissed the revision petition and upheld the trial court's order framing charges. It did not convict the petitioners or determine whether the allegations had been proved at trial.

What brought the case before the High Court

The petition challenged an order dated 17 January 2025 passed by the Additional Sessions Judge:05 (POCSO), North District, Rohini Courts. The proceedings arose from FIR No. 0520/2024, registered on 9 July 2024 at Police Station Bhalswa Dairy, Delhi, initially under section 137(2) BNS.

The first petitioner was the minor complainant's mother. She had initially reported that the child had been kidnapped. During the investigation, the child returned to the police station and alleged sexual assault. In her statement recorded under section 183 BNSS, she alleged that the first petitioner had threatened her and compelled her to submit to sexual acts with the second petitioner. She also alleged the first petitioner's presence during the assaults.

These were prosecution allegations before the Court. The High Court was deciding a legal objection to the charge, rather than making final findings about those events. The anonymised case title is retained throughout this article.

The alleged incidents extended from December 2023 to July 2024, covering periods before and after the BNS came into force on 1 July 2024. The judgment therefore examined both the earlier IPC provision and its BNS successor. The trial court had framed charges variously under sections 70(2), 351(3) and 64(2)(m) BNS and section 6 of the Protection of Children from Sexual Offences Act, 2012. (Paragraphs 1–11.)

The precise legal question

The petitioners pressed their challenge on the ground that the first petitioner, being a woman, could not be charged with gang rape at all. Their argument began with section 63 BNS, whose definition of rape opens by referring to a man. They contended that the reference to persons in the gang rape provision must consequently mean men.

The Court framed the question as whether a woman can be charged with gang rape under section 376D IPC or section 70 BNS. It expressly separated this question from whether a woman acting alone can commit the offence of rape under section 375 IPC or section 63 BNS. (Paragraphs 2–4 and 78–79.)

That distinction defines the reach of the decision. The judgment concerns the group offence and the liability of a participant who may not have personally performed the physical assault.

Why the 2013 amendments mattered

The petitioners relied principally on Priya Patel v. State of M.P., (2006) 6 SCC 263, and State of Rajasthan v. Hemraj, (2009) 12 SCC 403. Those Supreme Court decisions dealt with the law before the Criminal Law (Amendment) Act, 2013.

Before that amendment, gang rape appeared as an aggravated form of rape in section 376(2)(g) IPC, read with Explanation 1. The High Court reasoned that this provision was directly tied to the then definition of rape in section 375 IPC.

The 2013 amendment both expanded the acts covered by the definition of rape and introduced section 376D as a separate substantive provision governing gang rape. Section 70 BNS retained that legislative scheme. The Court treated this change in statutory structure as central to the interpretation of the later provisions. (Paragraphs 71–77.)

The decision therefore does not purport to overrule Priya Patel or Hemraj. The High Court analysed the changed statutory framework rather than treating those decisions on the earlier provision as a complete answer to the present question.

Why persons does not mean only men

Section 70 BNS refers to a woman being raped by one or more persons constituting a group or acting in furtherance of a common intention. It then treats each of those persons as having committed the offence.

The Court held that there was no basis to restrict persons to men. It likewise found no basis to confine the common intention described in the provision to an intention shared only by male participants. In its reasoning, the ordinary meaning of persons includes women.

This interpretation did not require the Court to redefine the word man in section 63 BNS. It instead read the distinct wording of the gang rape provision on its own terms. The Court regarded this as consistent with strict construction of a penal provision: it was giving the statutory language its ordinary meaning rather than adding a gender restriction absent from the text. (Paragraphs 78–81.)

Common intention and a participant's separate role

A central feature of the judgment is that each participant need not individually perform every act making up the offence. The Court referred to the concept of common intention under section 34 IPC and section 3(5) BNS, citing Jasdeep Singh alias Jassu v. State of Punjab, (2022) 2 SCC 545. (Paragraph 81.)

The Court also attached significance to the word or between the references to persons constituting a group and persons acting in furtherance of a common intention. It reasoned that someone acting in furtherance of that intention need not also be among those who physically carry out the rape. A woman may therefore fall within the provision even where she does not personally perform the physical assault. (Paragraph 82.)

For a trial, the relevant inquiry remains what role is alleged and ultimately proved, and how that role connects with the statutory requirements. The judgment rejects gender as an automatic bar to the charge. It does not turn every association with an accused person into criminal liability.

What the deeming provision does

The statutory rule treating each participant as having committed the offence was another decisive part of the reasoning. The Court held that this rule would lose its intended effect if liability depended on every participant personally performing the physical act.

On the Court's reading, section 376D IPC and section 70 BNS attach responsibility to persons within the statutory group or common-intention framework, even though an individual participant may not personally have committed the physical act described in the definition of rape. Gender does not exclude that participant from the charge. (Paragraphs 83–85.)

This explains why a defence based solely on the accused being a woman failed. It leaves the factual merits of the prosecution case to be determined through the criminal proceedings.

The Court's express limits on the ruling

The Court declined to decide whether the opening reference to a man in section 375 IPC or section 63 BNS should itself be read in a gender-neutral way. The amicus had advanced broader submissions on that issue, but those submissions must not be confused with the holding. (Paragraphs 51–54 and 78–79.)

The judgment also stated that a woman alone cannot be charged with gang rape, observing that this would prima facie conflict with the statutory definition of rape as presently construed. It left further examination of the expanded definition and non-male offenders for an appropriate case, while reiterating that it was expressing no opinion on whether man in the rape provision is gender-neutral. (Paragraph 87.)

A headline suggesting that the Court made every form of rape gender-neutral would therefore be inaccurate. The holding concerns liability for the separate gang rape offence.

The POCSO charge also survived

The High Court separately sustained the charge under section 6 of the POCSO Act, relying on its earlier decision in Sundari Gautam v. State of NCT of Delhi, 2024:DHC:5944, decided on 9 August 2024 in Criminal Revision Petition No. 852 of 2024. (Paragraph 88.)

The judgment discussed Sundari Gautam as authority that the offences under sections 3 and 5 POCSO are not restricted to male offenders. Its reasoning centred on the statutory use of person and the protection of children against the acts described in those provisions. (Paragraphs 43–46.)

The POCSO route and the gang rape route were distinct parts of the legal analysis. The survival of the charge under one statute should not be used to blur the reasoning under the other.

Other authorities discussed in the judgment

The amicus referred to Suneeta Pandey v. State of U.P., 2023 SCC OnLine All 44, in which the Allahabad High Court had accepted that a woman facilitating rape with a group could face prosecution under the amended gang rape provision. That decision appears in the submissions recorded at paragraph 47.

The judgment also recorded arguments drawing on Barendra Kumar Ghosh v. King-Emperor, AIR 1925 PC 1, and State of U.P. v. Iftikhar Khan, (1973) 1 SCC 512, concerning participation and common intention. These authorities formed part of the amicus's explanation of joint liability. (Paragraph 67.)

For research purposes, the distinction between counsel's submissions and the Court's own conclusions matters. The operative reasoning on the question presented appears in paragraphs 69–88, followed by the order upholding the charges and dismissing the petition in paragraphs 89–91.

Practical effect of the decision

The ruling means that, under the High Court's interpretation of the Indian provisions, a woman cannot defeat a gang rape charge merely by arguing that she did not personally carry out the physical act. The statutory allegations concerning her participation and common intention must be examined.

For defence counsel, the focus moves to whether the alleged conduct actually fits the provision and whether the evidence supports the role attributed to the accused. For the prosecution, the decision permits reliance on a participant's alleged contribution without requiring that every accused physically perform the assault.

The distinction between charge and conviction remains essential. The High Court upheld the legal maintainability of the charges challenged before it. Guilt remained to be adjudicated in the criminal proceedings.

This is an Indian High Court decision interpreting Indian legislation. Its reasoning may interest Pakistani researchers studying common intention and statutory interpretation, but it is not a ruling on the Pakistan Penal Code. Readers can browse our criminal law articles and consult the complete judgment record for the case details and PDF.

Frequently asked questions

Can a woman be charged with gang rape under section 70 BNS?

Yes, according to this Delhi High Court judgment. The Court held that a woman can fall within the gang rape provision where the statutory requirements concerning the group or common intention are met, even if she did not personally perform the physical assault.

Did the Delhi High Court convict the woman?

No. It upheld the trial court's order framing charges and dismissed the revision petition. The judgment was not a final finding of guilt after trial.

Did the Court make the definition of rape gender-neutral?

No. It expressly declined to decide whether man in section 375 IPC or section 63 BNS should be interpreted in a gender-neutral way. It decided the scope of the separate gang rape provisions.

How did the Court deal with Priya Patel and Hemraj?

It examined those Supreme Court rulings in the context of the pre-2013 law. It treated the later introduction of section 376D IPC as a separate substantive provision, retained in section 70 BNS, as a material change in the statutory framework.

What happened to the POCSO charge?

The Court sustained the charge under section 6 POCSO, relying on its earlier decision in Sundari Gautam concerning the gender-neutral scope of the relevant child-protection offences.

What is the case reference and where is the PDF?

ANSXXX and another v. State of NCT of Delhi and another, Criminal Revision Petition No. 37 of 2025 with Criminal M.A. No. 2891 of 2025, decided on 15 October 2026 by Justice A. J. Bhambhani. Download the complete 45-page judgment using the button at the top of this article.