Woman Can Be Charged With Gang Rape Under Section 376D IPC/Section 70 BNS: Delhi High Court

On 15 October 2026, the Delhi High Court ruled in ANSXXX & Anr. v. State of NCT of Delhi & Anr. (CRL.REV.P. 37/2025) that a woman can be put on trial for gang rape under Section 376D of the IPC and Section 70 of the BNS. Justice A.J. Bhambhani held that she need not have committed the physical act of rape herself.

The Court was careful about what it was deciding. It looked only at whether a woman can be charged with gang rape. It did not decide whether a woman can commit rape under Section 375 IPC or Section 63 BNS, and it left that question open.

The ruling came in a criminal revision petition filed by two accused against the trial court’s order on charge dated 17 January 2025. The Additional Sessions Judge (POCSO), Rohini Courts, had framed charges under Sections 70(2), 351(3) and 64(2)(m) of the BNS and Section 6 of the POCSO Act.

How the case began

The FIR, registered on 9 July 2024 at P.S. Bhalswa Dairy, was lodged by the mother of a minor girl, who reported her missing as a kidnapping. On 1 October 2024, the girl walked into the police station herself. At her medical examination, she said she had been sexually assaulted.

Her statement under Section 183 BNSS gave the prosecution’s version. She said that on 23 December 2023 her mother threatened to kill her unless she had physical relations with the second accused. She said her mother pushed her into it despite her objections and stayed in the room while she was assaulted. This allegedly happened repeatedly until July 2024. She also said the first incident had been recorded on her mother’s phone, and that she left home on 8 July 2024 after another threat.

What the petitioners argued

The mother, petitioner No. 1, pressed one ground only: she is a woman, so she cannot be charged with gang rape. Her counsel, Ms. Tanya Agarwal, pointed out that Section 63 BNS begins with the words “a man”, so only a man can commit rape. Gang rape is built on rape, so the “persons” in Section 70 must also be men.

She relied on two Supreme Court decisions, Priya Patel v. State of M.P. and State of Rajasthan v. Hemraj, which held that a woman could not be prosecuted for gang rape under the old Section 376(2)(g) IPC. She also argued that Parliament chose to keep “man” in the 2013 amendment, that the Verma Committee’s gender-neutral suggestion was never accepted, and that deeming provisions in criminal law must be read narrowly.

What the amicus said

The Court’s amicus, Mr. Rohan J. Alva, whose submissions the State adopted, argued that those Supreme Court cases dealt with a different legal setup. Before 2013, gang rape was just an aggravated form of rape in Section 376(2)(g) and depended on the rape definition. Since then, Section 376D has stood as an offence in its own right. He added that the definition of rape now covers more than penile-vaginal penetration, and that the Delhi High Court had already treated Section 3 of the POCSO Act as gender-neutral in Sundari Gautam v. State (NCT of Delhi). He also cited the Allahabad High Court’s decision in Suneeta Pandey v. State of U.P.

Why the Court agreed

Justice Bhambhani began with how the law developed. When Parliament created Section 376D in 2013, it chose to make gang rape a separate substantive offence rather than leave it as a punishment clause. The BNS carried this forward as Section 70. The Court said such a provision does not have to be read through the narrow definition of rape in Section 375 or Section 63.

The Court stressed that this was not a stretching of the law. In its view, reading Section 70 on its own terms was the strict approach, because the section speaks of “persons” and says nothing about men. It saw no reason to shrink “persons” to “men”, or to treat the common intention as something only men can share. Common intention under Section 34 IPC and Section 3(5) BNS, it noted, has never required each accused to do every act.

The Court also pointed to the word “or” joining the two limbs of the section, “constituting a group” and “acting in furtherance of a common intention”. Because of this, someone who acts in furtherance of the common intention does not have to be one of those who physically commit the rape. A woman outside that group can still be caught if she acted to get the rape done.

Finally, the Court relied on the deeming language in the section, under which each such person is “deemed to have committed the offence of rape”. That is a legal fiction, and it applies to the group member or participant whether or not that person personally committed the act. The Court summed up its conclusion in one line: a person who did not individually commit rape is still liable to be charged with gang rape “regardless of gender”.

A limit the Court drew

The Court made clear that a woman alone cannot be charged with gang rape, because that would not fit the definition of rape as it is currently read. It added that the issue may need another look in a suitable case, since the expanded definition covers acts that a non-male offender could also commit. It once again declined to say whether “man” in Section 63 BNS is gender-neutral.

Outcome

The Court also upheld the Section 6 POCSO charge, relying on Sundari Gautam. It affirmed the trial court’s order on charge and dismissed the petition. As this was a challenge at the stage of framing charges, guilt will be decided at trial.