New Delhi: A woman can be charged along with men for the offence of gang rape even if she herself has not committed the physical act but has facilitated it, Delhi High Court held Thursday.Justice Anup Jairam Bhambhani passed the judgment while upholding a trial court’s decision to frame charges against a woman accused of allegedly forcing her minor daughter to have sexual relations with a co-accused.“This court is of the view that there is no basis to hold that a woman cannot be charged with the offence of gang rape under Section 376D IPC and Section 70 BNS. The query posed in the present judgment is answered accordingly,” the court observed, adding a caveat that a woman alone can’t be booked for rape.The court was answering a question which arose for its consideration — “Can a ‘woman’ be charged with the offence of ‘gang rape’ under Section 376D IPC/section 70 BNS?”According to Section 70 (gang rape) of Bharatiya Nyaya Sanhita, “where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished”.Dealing with the interpretation of Section 70 BNS, Justice Bhambhani noted that the use of the phrase “deemed to have committed the offence of rape” is reflective of the legislative intent that every person who constitutes a group or acts in furtherance of a common intention need not have individually committed the offence of rape.The court clarified that its ruling does not mean a woman acting alone can be charged with gang rape. It also said it was not expressing any opinion on whether the word “man” in the post-2013 Section 375 IPC or section 63 BNS is gender-neutral.The case arose from an FIR registered at Delhi’s Bhalswa Dairy police station in July 2024. According to the prosecution, the girl alleged that her mother had threatened and forced her to have sexual relations with the other accused repeatedly between Dec 2023 and July 2024.The survivor said she had left home in July 2024 when she was threatened again by her mother to have sexual relations with the other accused. The woman’s lawyer argued that the definition of rape under BNS 63 specifically referred to a man as the perpetrator.However, advocate Rohan J Alva, who was assisting the court as an amicus curiae, submitted that whether the ‘person’ is a man or a woman ought not to be a material consideration if he/she was part of the group and contributed towards the commission of the offence. There is no rational basis to confine Section 376D IPC and Section 70 BNS only to male offenders, he added.
