In Ansxxx and Anr. v. State of NCT of Delhi and Anr. (CRL.REV. P. 37/2025), decided on 15 October 2026, Justice A.J. Bhambhani clarified that the offence of gang rape under Section 70 BNS is a separate substantive offence and that the word “persons” used in the provision cannot be restricted to men alone.
The Court distinguished between the commission of rape under Section 63 BNS and collective criminal liability for gang rape under Section 70 BNS. It emphasised that every individual charged with gang rape need not personally perform the physical act constituting rape.
Significantly, the Court confined its decision to gang rape and expressly declined to decide whether a woman acting independently can commit rape under Section 63 BNS.
The Case: A Mother Accused of Facilitating the Sexual Assault of Her Minor Daughter
The controversy arose from FIR No. 0520/2024, registered on 9 July 2024 at Police Station Bhalswa Dairy, Delhi, initially under Section 137(2) BNS following a complaint lodged by the minor victim’s mother alleging kidnapping.
During the investigation, the minor appeared at the police station on 1 October 2024 and disclosed that she had been sexually assaulted.
In her statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023, on 4 October 2024, the victim made allegations against her own mother, petitioner No. 1, and another accused, petitioner No. 2.
According to the victim, on 23 December 2023, her mother threatened to kill her if she refused to have sexual relations with petitioner No. 2. Despite her objections, the mother allegedly compelled her to submit to the sexual assault and remained present in the same room during the incidents.
The victim further alleged that she had been sexually assaulted repeatedly between December 2023 and July 2024. She also stated that a video recording of the incident dated 23 December 2023 could be found on her mother’s mobile phone.
Following the investigation, a chargesheet dated 27 November 2024 was filed, incorporating offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
By an order dated 17 January 2025, the Additional Sessions Judge (POCSO), Rohini Courts, framed charges against the petitioners under various provisions, including Sections 70(2), 351(3) and 64(2)(m) BNS and Section 6 of the POCSO Act.
The petitioners challenged the order before the Delhi High Court, pressing the specific contention that a woman could not legally be charged with gang rape.
Can a Woman Be Prosecuted for Gang Rape When Section 63 BNS Refers to a ‘Man’?
The principal argument advanced on behalf of the petitioners was founded upon the opening words of Section 63 BNS, which defines rape in terms of acts committed by a man.
The petitioners contended that since the substantive offence of rape could only be committed by a man, the reference to a group of persons under Section 70 BNS must necessarily mean a group of men.
They relied particularly upon the Supreme Court decisions in Priya Patel v. State of M.P. & Anr., (2006) 6 SCC 263, and State of Rajasthan v. Hemraj & Anr., (2009) 12 SCC 403.
In Priya Patel, the Supreme Court had held, while interpreting the pre-2013 provisions of the Indian Penal Code, that a woman could not be prosecuted for gang rape under Section 376(2)(g) IPC [Section 64(2) (g) BNS].
The petitioners argued that the subsequent amendments had not altered the fundamental position because the Legislature retained the word “man” in the definition of rape.
They further submitted that the deeming provision under Section 70 BNS could not be interpreted so expansively as to make a woman criminally liable for an offence that she could not commit individually.
Why the 2013 Amendment Became Central to the Court’s Interpretation
Justice Bhambhani examined the legislative development of rape and gang rape provisions before and after the Criminal Law (Amendment) Act, 2013.
Before the amendment, gang rape was treated as an aggravated form of rape under Section 376(2)(g) IPC [Section 64(2) (g) BNS], read with its Explanation. Its interpretation was directly connected to the definition of rape under Section 375 IPC (Section 63 of the Bharatiya Nyaya Sanhita), which at the time primarily contemplated penile-vaginal penetration.
The 2013 amendment introduced two important changes.
- First, it expanded the definition of rape to include acts involving the insertion of objects or other body parts, manipulation of body parts causing penetration, and certain acts involving the application of the mouth.
- Second, and more importantly for the present controversy, gang rape was established as a separate substantive offence under Section 376D IPC (Section 70 of the Bharatiya Nyaya Sanhita), rather than remaining merely an aggravated form of rape within the punishment provision.
The BNS subsequently retained the expanded definition of rape under Section 63 and the separate offence of gang rape under Section 70.
The Court considered this legislative development significant because the independent provision governing gang rape did not necessarily have to be interpreted by restricting every aspect of its application to the definition of rape.
The Court explained that the creation of a separate offence meant that its interpretation need not remain confined to the definition of rape under Section 375 IPC (Section 63 BNS).
Section 70 BNS Uses ‘Persons’, Not ‘Men’: Delhi High Court
The central reasoning of the judgment turned on the actual language employed in Section 70 BNS. The provision applies where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention. It further provides that each such person shall be deemed to have committed the offence of rape.
The Court identified three expressions carrying particular statutory significance: “one or more persons constituting a group”, “acting in furtherance of a common intention”, and “deemed to have committed the offence of rape”.
Justice Bhambhani held that the word “persons” must receive its ordinary, gender-neutral meaning.
The Court observed in paragraph 81:
There is no rationale or basis to restrict the word “persons” appearing in the phrase “one or more persons constituting a group” to mean only a group of men.
Consequently, a woman cannot be excluded from the application of Section 70 BNS solely because of her gender.
Importantly, the Court did not consider this interpretation an impermissible expansion of a penal statute. Rather, it held that giving the word “persons” its ordinary meaning was consistent with the principle of strict construction of criminal legislation.
Why the Word ‘Or’ in Section 70 BNS Matters
An important aspect of the judgment concerns the distinction between participating in a group and acting in furtherance of a common intention.
The Court highlighted that Section 70 BNS uses the word “or”, rather than “and”, between the expressions concerning group participation and common intention.
According to the Court, this disjunctive construction is significant because a person acting in furtherance of a common intention need not necessarily be among those who physically commit rape.
The Court illustrated that a woman may not be part of the group physically carrying out the sexual assault but may nonetheless act in furtherance of the common intention to have rape committed upon the victim.
This interpretation recognises that the commission of a collective criminal offence may involve different participants performing different acts.
Their liability is not determined exclusively by who physically performs the prohibited act, but also by whether their conduct satisfies the statutory requirements of collective participation or common intention.
However, this does not mean that mere association with an offender automatically establishes guilt. The prosecution must establish the relevant ingredients of the offence and the accused person’s participation or common intention.
Every Accused Need Not Personally Commit Rape to Face a Gang Rape Charge
The Court further analysed the legal effect of the expression “deemed to have committed the offence of rape” in Section 70 BNS.
It held that the provision creates a legal fiction under which a person participating in the offence as part of the group or acting in furtherance of the requisite common intention may be treated as having committed the offence, even without independently performing the physical act of rape.
The Court observed that every person participating in the group or acting in furtherance of a common intention “need not have individually committed the offence of rape.”
The principle reflects the established doctrine of joint criminal liability, under which different individuals may perform different acts in furtherance of a common criminal intention.
The Court also referred to the understanding of common intention under Section 34 IPC and its corresponding provision, Section 3(5) BNS.
Applying these principles, the Court concluded that an accused person could attract liability under Section 70 BNS irrespective of gender, provided the statutory conditions governing the offence were satisfied.
Earlier Supreme Court Decisions Did Not Prevent the Court from Reaching This Conclusion
The petitioners’ reliance on Priya Patel and Hemraj presented a substantial question because those decisions had recognised that women could not be prosecuted for gang rape under the earlier statutory framework.
The Delhi High Court’s reasoning addressed the changed legislative structure after 2013. Under the earlier law considered in Priya Patel, gang rape was contained within the punishment provision governing rape. Following the 2013 amendment, however, Parliament enacted Section 376D IPC as a separate offence.
The Court treated this distinction as relevant to the interpretation of the subsequent statutory framework, particularly when Section 376D IPC/ Section 70 BNS expressly referred to persons and incorporated the principle of collective liability.
The judgment also considered Suneeta Pandey v. State of U.P. & Anr., 2023 SCC OnLine All 44, in which the Allahabad High Court had recognised that a woman facilitating rape alongside others could be prosecuted under the amended gang rape provision.
In addition, the Delhi High Court considered its earlier decision in Sundari Gautam v. State of NCT of Delhi, 2024:DHC:5944, which recognised the gender-neutral application of the offence of penetrative sexual assault under Section 3 of the POCSO Act.
These decisions formed part of the broader legal examination of collective liability and gender-specific versus gender-neutral language in sexual offence provisions.
Does the Judgment Mean a Woman Can Independently Commit Rape?
The Court expressly refrained from deciding this wider question. Justice Bhambhani clarified that the issue before the Court concerned a woman’s liability for gang rape, not her independent liability for rape under Section 63 BNS.
The Court made it clear that it was neither interpreting the word “man” in Section 63 BNS as gender-neutral nor expanding the definition of rape under that provision.
The Court clarified that, under the statutory definition as presently construed, a woman acting alone could not be charged with gang rape.
At the same time, it recognised that the expanded definition of rape includes certain physical acts that can also be performed by non-male offenders. Whether this requires reconsideration of the interpretation of Section 63 BNS was left open for an appropriate future case.
Accordingly, the judgment must not be understood as declaring every provision concerning rape under the BNS to be gender-neutral.
Its holding is confined to liability for the separate offence of gang rape under Section 70 BNS and the corresponding Section 376D IPC.
Delhi High Court Upholds Charges Against the Accused
Applying its interpretation, the Delhi High Court found no legal basis for excluding petitioner No. 1 from prosecution for gang rape merely because she was a woman.
The allegations that the mother had threatened her minor daughter, compelled her to submit to sexual assault by another accused and remained present during the incidents were relevant to determining whether the charge could proceed.
The Court also observed that the charge under Section 6 of the POCSO Act was sustainable in view of its earlier ruling in Sundari Gautam.
Consequently, the Court upheld the order on charge dated 17 January 2025 and dismissed the criminal revision petition.
The decision concerned the validity of the charges framed against the petitioners. It did not constitute a finding that the allegations had been proved or a conviction of either accused.
Significance of the Judgment
The Delhi High Court’s ruling draws a distinction between the physical commission of rape and criminal liability arising from participation in gang rape.
By giving the expression “persons” its gender-neutral meaning, the Court has clarified that Section 70 BNS does not exclude a woman who allegedly facilitates, participates in, or acts in furtherance of a common intention to have rape committed.
The judgment is particularly significant because it resolves the question without rewriting the gender-specific definition of rape under Section 63 BNS. Instead, it rests on the separate statutory character of gang rape, the language of Section 70 and the legal fiction of collective liability contained in that provision.
The ruling establishes that gender alone cannot be a ground for seeking discharge from a gang rape charge when the allegations and material disclose participation satisfying Section 70 BNS.
At the same time, the prosecution must still prove the necessary statutory ingredients, including the accused’s relevant participation or common intention, in accordance with criminal law.