“He Who Holds the Ladder Is as Guilty as the Thief”: Delhi High Court Rules a Woman Can Be Charged with Gang Rape, but Not a Woman Alone

New Delhi: The Delhi High Court on October 15, held that a woman can be charged with the offence of gang rape under Section 376D of the Indian Penal Code (IPC) and Section 70 of the Bharatiya Nyaya Sanhita (BNS). Justice A. J. Bhambhani dismissed a petition filed by a woman accused, along with a co-accused, in a case involving a minor girl. The court upheld the trial court’s order framing charges against both.

The judgment opens with a German proverb: “He who holds the ladder is as guilty as the thief.”

The case arises from FIR registered on July 9, 2024 at Bhalswa Dairy police station in Delhi. The FIR was filed by the mother of the minor victim, who is petitioner No. 1 in the case. She initially complained that her daughter had been kidnapped. During the investigation, the girl came to the police station on her own on October 1, 2024, and was sent for a medical examination. During that examination she said she had been sexually assaulted. According to the State’s status report, she refused an internal medical examination.

In her statement recorded on October 4, 2024 under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the girl said that on December 23, 2023, her mother threatened to kill her if she did not have physical relations with the second accused. She said that despite her protests, her mother forced her to do so, and that her mother was present in the same room during the incidents. She said this happened several times between December 2023 and July 2024, and that a video of the December 23, 2023 incident would be found on her mother’s phone. She said she left home on July 8, 2024, after her mother threatened her again. After the investigation, a chargesheet was filed on November 27, 2024, adding offences under the Protection of Children from Sexual Offences (POCSO) Act.

On January 17, 2025, the Additional Sessions Judge (POCSO), Rohini Courts, framed charges against both accused under Sections 70(2), 351(3) and 64(2)(m) of the BNS and Section 6 of the POCSO Act. The accused challenged this order in the High Court, but, as the judgment records, pressed only one ground: that petitioner No. 1, being a woman, cannot be charged with gang rape. The offences are alleged to have occurred between December 2023 and July 2024, a period covering both the IPC and the BNS, which came into force on July 1, 2024.

The High Court issued notice on January 30, 2025 and stayed further proceedings before the trial court. Orders of May 2 and May 9, 2025 later allowed the trial court to record the victim’s testimony so that the accused’s bail plea could be considered. The court appointed advocate Rohan J. Alva as amicus curiae (friend of the court) on March 6, 2025.

Appearing for the petitioners, advocate Tanya Agarwal argued that under Section 63 of the BNS, only a “man” can commit rape, so the “group of persons” in Section 70 can only mean a group of men. She relied on two Supreme Court rulings, Priya Patel vs. State of M.P. (2006) and State of Rajasthan vs. Hemraj (2009), saying they had already settled the question. In Priya Patel, the Supreme Court had said: “A woman cannot be said to have an intention to commit rape.”

She also argued that Parliament did not replace the word “man” with “person” in Section 375 during the 2013 amendments, even though that had been proposed in the 2012 Bill, and that it did not accept the Justice J. S. Verma Committee’s suggestion that gang rape cover accused persons “regardless of their gender.” On the “deeming” language in Section 70, she argued that a legal fiction must be strictly construed and limited to its purpose, which she said was to change a rule of evidence and provide higher punishment, not to widen who can be an accused.

The amicus curiae opposed these arguments, and the Additional Public Prosecutor for the State, Digam Singh Dagar, adopted his submissions. Mr. Alva argued that Priya Patel and Hemraj were decided under the pre-2013 law, when gang rape was only an aggravated form of rape in Section 376(2)(g) IPC and was explained through an Explanation to that provision. After 2013, he said, gang rape became a separate, stand-alone offence in Section 376D IPC, now Section 70 BNS. He pointed out that the old text said “their common intention,” while the new text says “a common intention,” meaning the shared intention is that rape be committed on the victim, not that every member must personally intend to commit rape.

He also relied on this bench’s earlier ruling in Sundari Gautam vs. State of NCT of Delhi (2024), which held the POCSO provisions on penetrative sexual assault to be gender-neutral, and on the Allahabad High Court’s decision in Suneeta Pandey vs. State of U.P. In that case it was held that a woman cannot commit rape but “if she facilitated the act of rape with a group of people then she may be prosecuted for Gang Rape.”

Accepting the amicus’s position, Justice Bhambhani noted that before 2013 gang rape was only an aggravated form of rape directly tied to Section 375. He said making it a separate provision in 2013 was “intended to engraft a separate, substantive provision or offence in the penal law,” so its meaning need not be confined to the definition of rape in Section 375 IPC or Section 63 BNS.

The court stressed that the question before it was about gang rape, not rape. It said it was “not expressing any opinion on whether a woman can commit rape,” and was not interpreting the word “man” in Section 375 IPC and Section 63 BNS. It said it was not widening the offence of rape but giving gang rape its ordinary and strict meaning, since that offence refers to “persons” and not to men alone.

The judge held that “there is no rationale or basis to restrict the word ‘persons’... to mean only a group of men,” and that the phrase “acting in furtherance of a common intention” cannot be limited to the common intention of men alone. He also pointed out that the two phrases in the provision, “one or more persons constituting a group” and “acting in furtherance of a common intention,” are joined by the word “or” and not “and.” This means a person acting in furtherance of a common intention need not be among those who physically commit the rape. The court gave this example: “a woman who may not be part of the group of persons who commit the physical offence of rape may yet have acted in furtherance of a common intention to have rape committed upon the victim.”

The court also gave weight to the words “deemed to have committed the offence of rape,” saying they show the legislature did not intend that every person liable for gang rape must have individually committed rape. It concluded that a person who did not personally commit the act of rape is still deemed to have committed the offence under Section 376D IPC and Section 70 BNS, and is “liable to be charged with that offence of gang rape regardless of gender.” In its words, “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 court also set a limit on its ruling. It clarified that “a woman alone cannot be charged with the offence of gang rape,” because that would, on the face of it, not fit the statutory definition of rape in the post-2013 Section 375 IPC and Section 63 BNS as they are currently understood. It added that this question may have to be revisited in an appropriate case, especially because the expanded definition of rape includes acts that a non-male offender can also commit. The court again said it was not deciding whether the word “man” in those sections is gender-neutral.

On the charge under Section 6 of the POCSO Act, the court said it was in any case “sustained on the strength of the ruling of this bench in Sundari Gautam.”

The High Court upheld the January 17, 2025 order on charge and dismissed the petition.