A critical judicial interpretation has emerged regarding criminal liability in heinous offences involving sexual violence. A woman can be lawfully charged and prosecuted for gang rape if she acts in furtherance of a common intention to facilitate the sexual assault of a victim. The law does not mandate that she must personally execute a physical or sexual act upon the victim for the charge to stand. Statutory references to a group of persons in penal provisions cannot be interpreted as being confined exclusively to men. At the same time, the ruling established that a woman cannot be arraigned as a sole accused on a gang rape charge, as such an individual accusation would not align with the prevailing definition of rape under the substantive criminal code.
Statutory Construction of Common Intention and Groups of Persons
The foundation of this legal determination rests upon the specific statutory architecture governing sexual offences. Under Section 376D of the Indian Penal Code and its corresponding provision Section 70 of the Bharatiya Nyaya Sanhita, gang rape is codified as a distinct and independent offence. During the proceedings, the petitioner had contended that because the statutory definition of a perpetrator of rape designates a male, a woman cannot be subjected to gang rape charges. This submission was rejected on the grounds that when an offence is committed by multiple persons acting in furtherance of a common intention, narrowing the scope of the statutory language would undermine the legislative intent.
The judgment underscored that there exists no legal justification or logical basis to restrict the phrase one or more persons constituting a group strictly to men. Criminal accountability in a gang rape charge does not hinge exclusively on whether a particular co-accused personally committed sexual penetration or assault. If an individual acts in furtherance of a shared criminal purpose to cause the victim to be raped, that individual can be brought under the ambit of the gang rape provision.
The Distinction Between Sole Accused and Joint Perpetrators
The bench delineated the boundaries of this interpretation to prevent conflicting readings of substantive penal provisions. The court explicitly refrained from addressing whether a woman could independently commit rape under the primary definition of the offence, noting that the singular question before it was whether a woman could be indicted on a charge of gang rape as part of a joint enterprise.
It was observed that a woman cannot face a gang rape charge in isolation, because such an accusation against a sole female actor would prima facie run contrary to the statutory definition of the underlying offence. Conversely, when a woman acts collectively or facilitates sexual assault in pursuit of a common intention with another perpetrator, she is legally liable to be charged with the aggravated offence of gang rape.
Allegations Involving the Sexual Exploitation of a Minor
The ruling arose from a criminal revision petition stemming from allegations made by an underage girl. According to the prosecution case, between December 2023 and July 2024, the girl's mother repeatedly intimidated her and coerced her into submitting to sexual intercourse with another accused individual on multiple occasions. The victim also stated that her mother was physically present inside the room while these sexual assaults took place.
The mother subsequently approached the High Court to challenge an order of the trial court that framed charges against her. Her central argument was that Section 63 of the Bharatiya Nyaya Sanhita references a male as the perpetrator of rape, thereby precluding the prosecution of any female under gang rape provisions. The bench held that this reading ignored the separate operational mechanism of group liability recognized in the penal statute.
The Impact of the 2013 Legislative Amendments
Tracing the evolution of penal statutes, the judgment highlighted the pivotal overhaul introduced through the criminal law amendments of 2013. Following those amendments, the legal definition of sexual violence was substantially broadened, and Section 376D was inserted into the Indian Penal Code to designate gang rape as an autonomous offence. That legal framework now finds its counterpart in Section 70 of the Bharatiya Nyaya Sanhita.
The statutory language covers individuals who actively play a role in advancing a shared criminal objective resulting in sexual assault. Crucially, the provision imposes no prerequisite that every individual acting in furtherance of that shared design must be male. As long as the common intention to perpetrate the crime is established, liability extends to every participant involved in the enterprise.
Deemed Commission and the Absence of Physical Participation
Analyzing the precise phrasing of the statute, the court attached weight to the statutory conjunction or. Under this construction, an individual acting in furtherance of a common intention does not necessarily have to be among those who physically assaulted the complainant.
The statutory formulation specifies that such participants shall be deemed to have committed the offence. This legal fiction ensures that every person who forms part of the group or actively furthers the common intention bears criminal responsibility, irrespective of whether they personally performed the physical act. Active facilitation or purposeful presence in advancing the crime satisfies the threshold of culpability under the law.
Evaluation of Pre-2013 Judicial Precedents
The petitioner had placed reliance on two earlier decisions of the Supreme Court, namely Priya Patel versus State of Madhya Pradesh and State of Rajasthan versus Hemraj, to argue that women are immune from prosecution for gang rape. The High Court analyzed the context of these citations and observed that both precedents pertained to the legal framework existing prior to the comprehensive legislative amendments of 2013.
Under the earlier legal regime, gang rape was treated primarily as an aggravated form of rape under Section 376(2)(g) of the Indian Penal Code. The subsequent introduction of Section 376D created an entirely separate offence with distinct statutory parameters. Consequently, judicial rulings rendered prior to the 2013 amendment cannot be applied mechanically to nullify modern statutory provisions governing joint criminal liability.
Trial Court Order Upheld as Criminal Revision Is Dismissed
The bench also drew upon the reasoning in an earlier High Court decision, Sundari Gautam versus State of NCT of Delhi, which had established that under the Protection of Children from Sexual Offences Act, the gender of an individual committing penetrative sexual assault is not a determinative barrier to prosecution.
Holding that the grounds raised in the petition lacked merit, the High Court on October 15 upheld the trial court's order dated January 17, 2025, which had framed charges against the accused persons. The charges framed against them include Section 70(2), Section 351(3), and Section 64(2)(m) of the Bharatiya Nyaya Sanhita, read along with Section 6 of the Protection of Children from Sexual Offences Act. The criminal revision petition was accordingly dismissed.
