The Delhi High Court has ruled that a woman can be charged with gang-rape even if she does not physically commit the rape herself, provided she is alleged to have acted in furtherance of a common intention to have the crime committed. The court held that Section 70 of the Bharatiya Nyaya Sanhita (BNS) does not restrict criminal liability to men.Justice Anup Jairam Bhambhani dismissed a woman’s plea challenging the gang-rape charge against her, observing that there was no legal basis to exclude women from the provision when they allegedly facilitate the commission of the offence alongside others.“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,” the court held in its order on October 15, interpreting the provision in gender-neutral terms.Explaining why a person need not physically commit rape to face a gang-rape charge, the court said liability could also arise where an accused acts in furtherance of a common intention to have the crime committed. In other words, the allegation against such a person is not necessarily that they committed the physical act themselves, but that they shared the common intention and acted to facilitate the offence.“For instance, 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,” Justice Bhambhani observed.The court underscored the culpability of those who assist a crime by quoting a German proverb: “He who holds the ladder is as guilty as the thief.”The ruling came in a case in which a woman was accused of forcing her minor daughter to have sexual relations with a man and being present when the girl was allegedly sexually assaulted repeatedly between December 2023 and July 2024.A criminal case was registered in July 2024 under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the BNS. The trial court framed a charge of gang rape under Section 70 of the BNS against the woman.Challenging the charge before the High Court, she argued that she could not be prosecuted for gang rape because she was a woman and the offence of rape, as defined under Indian law, was committed by a man.Rejecting the argument, the High Court held that a woman could be charged under Section 70 when she was one of the persons allegedly acting in furtherance of a common intention to commit gang rape. The provision, the court said, covered persons forming a group as well as those acting in furtherance of the common intention, without restricting the term “persons” to men.“There is no basis to hold that a woman cannot be charged with the offence of gang rape under Section 376D IPC (replaced by Section 70 BNS) and Section 70 BNS,” the court concluded.The judge, however, drew a distinction between charging a woman as part of a group and prosecuting her as the sole accused for gang rape.“A woman alone cannot be charged with the offence of gang rape since that would prima facie not be in conformity with the statutory definition of rape as it appears even in the post-2013 Section 375 IPC and Section 63 BNS, as currently construed,” the court said.It left open the question of whether a woman could be named as the sole accused in a gang-rape case, observing that the issue could be examined in an appropriate matter, particularly in view of the expanded definition of rape and the acts that may be committed by a non-male offender.The court clarified that it had not decided whether the term “man” in the statutory provisions defining and punishing rape should itself be interpreted as gender-neutral.