Case at a glance: The Delhi High Court has upheld charges of gang rape under Section 70 BNS against a woman accused of acting with a co-accused man in the sexual assault of a minor. It held that after the 2013 amendment gang rape is a standalone offence, that “persons” in “one or more persons constituting a group” carries its ordinary meaning, and that each member of the group is liable regardless of gender. It distinguished Priya Patel and Hemraj as pre-2013 decisions.
An FIR was registered in July 2024 at PS Bhalswa Dairy on the complaint of the minor victim's mother, who is petitioner 1. In her statement under Section 183 BNSS, the victim alleged that petitioner 1 threatened her into sexual relations with petitioner 2 over several months and remained in the room.
The chargesheet added POCSO offences, and on 17 January 2025 the POCSO court at Rohini framed charges including gang rape under Section 70(2) BNS and Section 6 POCSO. The petitioners argued that rape under Section 63 BNS can only be committed by a “man” and relied on Priya Patel v. State of M.P. and State of Rajasthan v. Hemraj.
The Key Question Before the Court
Can a woman be charged with gang rape under Section 376D IPC / Section 70 BNS?
Gang Rape as a Standalone Offence
The amicus curiae submitted, and the State adopted, that Priya Patel and Hemraj arose under the pre-2013 Explanation to Section 376(2)(g), where gang rape was only a punishment provision. The Court agreed that gang rape is now a separate substantive offence and need not be read through the definition of rape in Section 63.
It held that “persons” carries its ordinary meaning and strict construction of penal law gives no basis to read it as “men”; the two limbs—constituting a group, or acting in furtherance of common intention—are disjunctive; and the deeming fiction makes each member liable. The Court noted that whether a woman alone can be charged with gang rape may be examined in a future case, and gave no view on whether “man” in Section 63 is gender-neutral. The Section 6 POCSO charge was sustained following Sundari Gautam.
What the Court Actually Held
- The order on charge dated 17 January 2025 was upheld.
- The revision petition was dismissed.
- A woman acting as part of a group can be charged with gang rape under Section 70 BNS.
- The Court left open whether a woman alone could be so charged.
Why This Judgment Matters
- It distinguishes Priya Patel and Hemraj in light of the 2013 amendment.
- It interprets Section 70 BNS for the first time on this point in the Delhi High Court.
- It confirms POCSO charges against a woman in such cases.
What Should Advocates Take Away From the Judgment?
For Defence Counsel
- Note the Court's limits: a group is required, and Section 63 was not interpreted.
- Examine whether the prosecution shows group action or common intention.
For Prosecutors
- Frame gang rape charges where a woman acts as part of the group; rely on the post-2013 text.
Key Takeaways
- Gang rape is a standalone offence after 2013.
- “Persons” is not limited to men.
- Each member of the group is liable.
- The charges were upheld.
Frequently Asked Questions
The Court expressly gave no view on whether “man” in Section 63 is gender-neutral.
They arose under the pre-2013 provision, where gang rape was only a punishment provision.
The Court said this may be examined in a future case.
Conclusion
The ruling is a significant interpretation of Section 70 BNS that will likely be tested further.
Practical takeaway: After the 2013 amendment, a woman acting as part of a group may face a gang rape charge; the earlier Supreme Court decisions arose under different statutory text.