Allahabad: The Allahabad High Court recently ruled that acts such as grabbing a girl’s breasts, breaking the string of her pyjama, and attempting to drag her do not constitute rape or an attempt to commit rape. Instead, the court held that these actions amount to “aggravated sexual assault” under the law.
A bench comprising Justice Ram Manohar Narayan Mishra modified a prior order from the trial court, which had summoned the accused, Pawan and Akash, under Section 376 (rape) of the Indian Penal Code (IPC) and Section 18 (attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act. The High Court directed that the accused should instead face trial under Section 354-B (assault or use of criminal force with intent to disrobe) of the IPC and Sections 9 and 10 (aggravated sexual assault) of the POCSO Act.
“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” a bench of Justice Ram Manohar Narayan Mishra observed as it partly allowed the criminal revision plea filed by 3 accused.
The case involved allegations that the accused assaulted a minor girl, reportedly aged between 11 and 12 years. Akash allegedly broke the string of her pyjama and attempted to drag her under a culvert. The incident came to a halt when passersby intervened, prompting the accused to flee the scene.
In their defense, the accused argued that the alleged acts did not amount to an attempt to rape and should only attract charges under Sections 354 and 354-B of the IPC, along with applicable provisions of the POCSO Act. The trial court had previously charged them under Section 376 IPC and Section 18 of the POCSO Act, treating the incident as an attempted penetrative sexual assault on the minor.
After reviewing the evidence and witness testimonies, the High Court concluded that there was no indication that the accused had crossed the threshold of preparation or shown a clear intention to commit rape. The court noted, “The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjama. However, the witnesses did not state that the victim became naked or undressed as a result of this act. There is no allegation that the accused attempted to commit penetrative sexual assault on the victim.”
“The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjami. It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the Court observed in its order.
In view of this, the bench opined that the allegations levelled against the accused and facts of the case hardly constituted an offence of attempt to rape in the case.
The Court observed that a prima facie charge of attempt to rape was not made out against the accused and instead, they were liable to be summoned for a minor charge of Section 354(b) IPC, i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked and Section 9 (m) of POCSO Act.
As per the aforesaid provision, committing sexual assault on a child below twelve years would be 'aggravated sexual assault' punishable under Section 10.
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